Commentary on the HPCR Manual
The HPCR Manual
does not have a binding force, but hopefully it will serve as a valuable resource for armed forces in the development of rules of engagement, the writing of domestic military manuals, the preparation of training courses and - above all - the actual conduct of armed forces in combat operations. In the first place, the goal is to provide armed services' lawyers - who advise military commanders, draft legal texts and plan legal modules of military training - with a pragmatic and cogent text, assisting them in carrying out their crucial tasks. But, moreover, it is hoped that military commanders in the field will find in the HPCR Manual
a practical tool that will make decision-making easier in a real-time operational environment and that they will consult it when the need arises. In the final analysis, the possibility to consult the HPCR Manual
ought to make the officers concerned (including, but not exclusively, individual members of aircrews) more confident of themselves at a time when decisions have to be made rapidly. If something goes wrong in a military operation, there is a regrettable tendency to appraise what happened on the basis of hindsight criteria. The objective of the HPCR Manual
is to be of help to those who plan, approve or execute air or missile operations before rather than after the event.
Surely, the HPCR Manual
is designed for operational use not only by air forces but also by other segments of the armed forces in time of armed conflict. In particular, when it comes to targeting and precautions, knowledge and understanding of the law of air and missile warfare is of crucial importance not only to the commanders, air staffs and aircrews of the attacking air powers but also (perhaps more so) to the commanders of the forces bearing the brunt of the attacks. Needless to say, it is hoped that the HPCR Manual
will be used extensively in training and instruction courses (not only in wartime but also in peacetime), so as to familiarize prospective users with the patterns of behaviour expected of them.
(i) The Black-Letter Rules of the HPCR Manual
The Black-letter Rules of the HPCR Manual
are the product of the collaborative effort of the Group of Experts as a whole. In large parts, the Black-letter Rules reflect the overall consensus of the Group of Experts as to the state of the most salient elements of the existing law of international armed conflict (also known as International Humanitarian Law) bearing on air and missile warfare in 2009. Obviously, international law is not static. In time, the HPCR Manual
may have to be revised to reflect future changes in the law.
Consensus for the purposes of the drafting of the Black-letter Rules of the HPCR Manual
was understood to mean that no more than two participants in the Group of Experts had reservations about the language in which the Black-letter Rules are couched (caveats were then inserted in the Commentary). Whenever three or more participants in the Group of Experts objected to a given text, it was changed to meet such objections or bridge over conflicting views. In the rare instances in which compromise formulas proved beyond the reach of the Group of Experts, it was agreed to follow in the text the majority view but to give in the Commentary full exposure to the dissenting opinions.
The HPCR Manual
is divided into 24 Sections of varying lengths, depending on the "density" of State practice and the consequent number of norms that have been consolidated in each sphere. Many Sections are divided into sub-sections of General Rules (applicable in armed conflicts across the board, including air or missile warfare) and specific Rules that are geared to air or missile operations.
It was debated in the Group of Experts whether or not to open the HPCR Manual
with a Section enumerating the basic principles underlying the law of armed conflict. As a minimum, there are three such cardinal principles (listed by the International Court of Justice in its 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons
, paras. 78 & 88), namely, (i) distinction (between combatants and non-combatants and between military objectives and civilian objects); (ii) the prohibition to cause unnecessary suffering to combatants; and (iii) neutrality (the prohibition of incursion by belligerent forces into neutral territory). There are other principles which may be deemed "basic", such as the Martens Clause and the limitation on the right of Belligerent Parties to choose methods or means of warfare. Ultimately, the Group of Experts decided not to include such a general Section in the HPCR Manual
. However, most of the basic principles are, of course, incorporated in the relevant text (see, especially, Rules 2 (c), 4 and 5).
(ii) The Accompanying Commentary
(ii) The Accompanying Commentary
Each Black-letter Rule of the HPCR Manual
is accompanied by a Commentary that is intended to provide user-friendly explanations for both legal advisers and those who plan, approve or execute air or missile operations on both sides of the armed conflict. The format of the Commentary is tailor-made to the requirements of the "ops" officer. Legal cites are kept to a minimum and the Commentary itself is often encapsulated in terse "bullet point" style. The rationale is that there is usually no real need to go through a legal disquisition in order to figure out what must or must not be done.
Since the success of the HPCR Manual
is essentially contingent on its responsiveness to the needs of both legal advisers and "ops" officers in terms of clarity and relevance to realistic scenarios, the Group of Experts expressed preference for an easily accessible and comprehensible Commentary. The Commentary was formulated by a select Drafting Committee (the list of members and meetings of the Drafting Committee appears in Appendix IV). The Group of Experts as a whole frequently determined what the Commentary on specific Black-letter Rules ought to include. All participants also had an opportunity to see an earlier version of the Commentary and to critique it. Still, for obvious practical purposes, it was impossible to seek a line-by-line approval of a rather lengthy text by the entire Group of Experts. Hence, whereas the Black-letter Rules of the HPCR Manual
reflect the views of the members of the Group of Experts, the Commentary must be seen as the sole responsibility of HPCR.
The specific goals of the Commentary are as follows:
- Expound underlying premises in the Black-letter Rules and shed light on points that may require greater clarity.
- Elaborate ideas mentioned en passant in the text, and explain decisions taken by the Group of Experts.
- Cite treaties (a Table of Treaties cited in the Commentary appears in Appendix V) and other official instruments (such as recent military manuals), as well as relevant case law, in support of the text. There are no references to academic writings in the Commentary, it being understood that the views of scholars will be presented in full in the published research papers underpinning the HPCR Manual.
- Address controversial issues not covered by the Black-letter Rules themselves.
- Give full expression to differing positions that emerged in the deliberations of the Group of Experts about the substance of the law. The Commentary points out where compromise solutions have been worked out in order to reconcile divergent approaches.
- Add to some Black-letter Rules an extrapolation that had originally been included in the black-letter language but was later relegated by the Group of Experts to the Commentary, as a mode of building a consensus for the black-letter phraseology (objections to the wording were often withdrawn on the understanding that a sentence or paragraph - the text of which was agreed upon - will appear in the Commentary rather than in the Black-letter Rule).
- Indicate whether the Black-letter Rule is also applicable in non-international armed conflicts.