Constant care must be taken to spare the civilian population, civilians and civilian objects.
[Commentary]
- This Rule is based on Art. 57 (1) to (4) of AP/I.[285] See also Para. 8.1. of NWP.[286]
- Rule 30 makes no distinction between military operations in warfare on land, at sea or in the air. As a general principle, the same norms apply equally in all domains of warfare. It is true that Art. 49 (3) of AP/I[287] and Art. 57 (4) of AP/I[288] imply some form of distinction between the conduct of military operations at sea or in the air compared to land. However, the Group of Experts reached the conclusion that, as a general principle, the same legal regime applies equally in all domains of warfare (land, sea or air ).
- “Constant care” means that there are no exceptions from the duty to seek to spare the civilian population, civilians and civilian objects.
- The Group of Experts noted that there are some objects which, although not civilian objects in the strict sense of the term, are nevertheless subject to the application of Rule 30. A prominent example is that of POW-camps, which are evidently military installations. The Group of Experts could not see any good reason why in practice there ought to be a distinction between them and civilian objects as regards the application of constant care.
- Art. 57 of AP/I (“Precautions in attack”): “(1) In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects. (2) With respect to attacks, the following precautions shall be taken: (a) those who plan or decide upon an attack shall: (i) do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection but are military objectives within the meaning of paragraph of Article 52 and that it is not prohibited by the provisions of this Protocol to attack them; (ii) take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss or civilian life, injury to civilians and damage to civilian objects; (iii) refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated; (b) an attack shall be cancelled or suspended if it becomes apparent that the objective is not a military one or is subject to special protection or that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated; (c) effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit. (3) When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects. (4) In the conduct of military operations at sea or in the air, each Party to the conflict shall, in conformity with its rights and duties under the rules of international law applicable in armed conflict, take all reasonable precautions to avoid losses of civilian lives and damage to civilian objects.”
- Para. 8.1 of NWP (“Principles of lawful targeting”): “The law of targeting … requires that all reasonable pre-cautions must be taken to ensure that only military objectives are targeted so that noncombatants, civilians, and civilian objects are spared as much as possible from the ravages of war.”
- Art. 49 (3) of AP/I: “The provisions of this section apply to any land, air or sea warfare which may affect the civilian population, individual civilians or civilian objects on land. They further apply to all attacks from the sea or from the air against objectives on land but do not otherwise affect the rules of international law applicable in armed conflict at sea or in the air.”
- Art. 57 (4) of AP/I, see fn. 285.
All feasible precautions must be taken to spare all persons and objects entitled to specific protection under Sections K, L, M and N of this Manual.
[Commentary]
- The reference to feasible precautions in this Rule is based on Art. 57 (2) (a) (i) of AP/I.[289]
- The term “feasible” is defined in Rule 1 (q). The expression “feasible precautions”, referred to in Rule 31, embraces precautions relating to (i) the general protection to which all civilian objects are entitled; and (ii) the specific protection as detailed in Sections K, L, M and N.
- All civilian objects enjoy general protection. Specific protection means that the law of international armed conflict provides for specific safeguards for the protection of particular objects. These safeguards come in addition to the general protection these objects enjoy as civilian objects.
- Art. 57 (2) (a) (i) of AP/I, see fn. 285.
Constant care includes in particular the following precautions:
[Commentary]
(a) Doing everything feasible to verify, based on information reasonably available, that a target is a lawful target and does not benefit from specific protection;
[Commentary]
(b) Doing everything feasible to choose means and methods of warfare with a view to avoiding – or, in any event, minimizing – collateral damage; and
[Commentary]
(c) Doing everything feasible to determine whether the collateral damage to be expected from the attack will be excessive in relation to the concrete and direct military advantage anticipated.
[Commentary]
- This Rule is based on Art. 57 (2) (a) of AP/I.[290] See also Para. 8.1[291] and Para. 8.3.1[292] of NWP.
- The purpose of feasible precautions is to avoid attacks being directed at civilians, civilian objects or objects entitled to specific protection and, when attacking military objectives, to avoid — or, in any event, minimize — collateral damage (see Rule 14).
- Art. 57 (2) (a) of AP/I, see fn. 285.
- Para. 8.1 of NWP, see fn. 286.
- Third, fourth and fifth sentences of Para. 8.3.1 of NWP (“Incidental Injury and Collateral Damage”): “Naval commanders must take all reasonable precautions, taking into account military and humanitarian considerations, to keep civilian casualties and damage to the minimum consistent with mission accomplishment. In each instance, the commander must determine whether the anticipated incidental injuries and collateral damage would be excessive, on the basis of an honest and reasonable estimate of the facts available to him. Similarly, the commander must decide, in light of all the facts known or reasonably available to him, including the need to conserve resources and complete the mission successfully, whether to adopt an alternative method of attack, if reasonably available, to reduce civilian casualties and damage.”
- To facilitate verification that a target is a lawful target and does not benefit from specific protection, command echelons must utilize all technical assets (such as intelligence, reconnaissance and surveillance systems) at their disposal, to the extent that these assets are reasonably available, and utilizing them is militarily sound in the context of the overall air campaign.
- Verification must be based on sources of information that are sufficiently up-to-date and reliable, according to sound military practice. “Information” includes military intelligence. The quality and timeliness of the intelligence has to be considered. It must be taken into account that the enemy may attempt to provide disinformation (see Rule 116 (b)) or otherwise frustrate target intelligence activity. Other information, such as “on the spot” visual observations that may corroborate or contradict military intelligence, must also be taken into account (see, in this respect, Rule 35). All information gathered has to be evaluated on the basis of the circumstances prevailing at the time.
- All feasible efforts must be undertaken to obtain reliable information, which may affect the application of the “constant care” rule. Any person planning, ordering or executing an attack can only act on information that is available in the sense that it can be obtained by reasonable efforts. Several States (e.g., Austria) have made statements upon ratification of AP/I, pertaining to Art. 57 (2) thereof, that the latter provision will be applied on the understanding that, “with respect to any decision taken by a military commander, the information actually available at the time of the decision is determinative”.
- The feasibility of applying the precautions requirement for the purposes on the “constant care” rule depends on the level of command and on the availability of information. The information available to the aviator on the scene may be different from the information on which command echelons at a distance from the scene are basing their decisions. The aviator may perform real-time observations that negate the information on which the decision to attack was based. The commander may, on the other hand, know more about the overall objectives of the attack than the aviator does and have access to information from sources that are not immediately available to the aviator, such as satellites or human intelligence sources. Therefore, the question for the aviator is whether the commander’s determination is evidently faulty in view of what is visible on site. In this respect, see Rule 35.
- In order to exercise constant care, a Belligerent Party ought to retain a command and control system capable of collecting, processing relevant information, making the necessary evaluation and directing its combat units accordingly.
- For the specifics of attacks directed at aircraft in the air, see Rule 40.
- This Rule is derived from the general principle of proportionality, which is dealt with in Rule 14.
- Means and methods of warfare include weapons, weapons systems and munitions, as well as tactics (such as timing, angle and altitude of attack). The term “means of warfare” is defined in Rule 1 (t). The term “methods of warfare” is defined in Rule 1 (v). The term “weapon” is defined in Rule 1 (ff). “Collateral damage” is defined in Rule 1 (l).
- Rule 32 (b) imposes a requirement to consider alternative weapons and tactics to avoid — or, in any event, to minimize — collateral damage. For instance, an attacker ought to choose a weapon with greater precision or lesser explosive force if doing so would minimize the likelihood of collateral damage, assuming the selection is militarily feasible (for the definition of feasible, see Rule 1 (q)). Rule 32 (b) also raises the question as to whether the attacker must choose the most precise weapons available. For a discussion thereof, see Rule 8.
- Similarly, angle of attack is one of the factors that determine where a bomb may land if it falls short of, or beyond, the target. Thus, to spare a building located, e.g., to the west of a target, it may be advisable to attack from the north or the south.
- Rule 32 (b) further entails that it would be prohibited to conduct air or missile attacks against military objectives without using appropriate and available target identification or weapon guidance technologies to aim the weapon at those objectives when such assets are available and their use is militarily feasible.[293] If such assets are not available, and the attacker for this reason is not able to comply with the prohibition against indiscriminate attacks (Rule 13), the attack has to be cancelled (see Rule 35). This general rule is particularly relevant if the military objectives are located in a densely populated area.
- “Dual-use” objects — such as airports being used by both civilian and military aircraft — are of particular relevance when it comes to applying Rule 32 (b). Assuming that it is sufficient to put an airfield out of use temporarily, the attacker ought to consider the option of cratering the runway instead of attacking the permanent facilities. This will ensure collateral damage to civilians or civilian objects is avoided, or any event minimized.
- Para. 5.32.5 of the UN Manual (“Factors to be considered”): “In considering the means or methods of attack to be used, a commander should have regard to the following factors: (a) the importance of the target and the urgency of the situation; (b) intelligence about the proposed target — what it is being, or will be, used for and when; (c) the characteristics of the target itself, for example, whether it houses dangerous forces; (d) what weapons are available, their range, accuracy and radius of effect; (e) conditions affecting the accuracy of targeting, such as terrain, weather, and time of day; (f) factors affecting incidental loss or damage, such as the proximity of civilians or civilian objects in the vicinity of the target or other protected objects or zones and whether they are inhabited, or the possible release of hazardous substances as a result of the attack; (g) the risks to his own troops of the various options open to him.”
- The commander is expected to make an honest assessment of the collateral damage to be expected from the attack, taking into account factors such as known effects of the weapons that are to be used; the vulnerability of any civilian buildings in the target area; the number of civilians that are likely to be present in the target area at the particular time; and whether they have any possibility to take cover before the attack takes place.
- As indicated in the Commentary on Rule 32 (a), the reality on the ground may appear to an aviator to be different from the one received during the premission briefing. In this respect, see Rule 35 (c).
- As for “dual-use” objects, and the need to avoid — or, in any event, minimize — expected collateral damage that is excessive compared to the military advantage anticipated, see paragraph 5 of the Commentary on Rule 32 (b).
- The notion of excessive collateral damage is explained in the Commentary on Rule 1 (l) and in the Commentary on Rule 14.
When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected must be the one where the attack may be expected to cause the least danger to civilian lives and to civilian objects, or to other protected persons and objects.
[Commentary]
- This Rule is based on Art. 57 (3) of AP/I.[294] The term “military advantage” is defined in Rule 1 (w).
- Rule 33 deals with choice between targets. A useful scenario would involve two rivers across which a road used by the enemy passes. In this scenario, destroying a bridge spanning either of the rivers will effectively cut the road and deny its use to the enemy. If the two bridges are considered to provide equal military advantage, the bridge selected for attack must be that likely to result in the least danger to civilian lives and to civilian objects, or to other protected persons and objects. Similarly, it may be militarily feasible to attack facilities providing power to a military objective rather than the military objective itself. Assuming that the military advantage is equal, this option must be chosen if less danger to civilian lives and to civilian objects, or other protected persons and objects, is expected.
- “Similar military advantage” must be understood in terms of the military advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack. The emphasis is on the fact that two or more military objectives can alternatively be attacked. The military advantage anticipated from each alternative attack must be considered as a whole, and not in isolation. Thus, when several parallel bridges have to be destroyed in order to break an axis of communications — and the military advantage that can be achieved depends on the destruction of all the bridges — destruction of only one of them will serve little or no practical purpose. See also paragraph 6 of the Commentary on Rule 1 (w), paragraph 7 of the Commentary on Rule 1 (y) and paragraph 11 of the Commentary on Rule 14.
- For the sake of analysis, it may be a hypothesis that there is a terrain which includes a river barrier and behind it a high mountain, the river being crossed by three bridges and the mountain traversed through a tunnel. If, insofar as the river is concerned, the only practical option is to destroy all three bridges — inasmuch as destroying only one or two of them will leave the river passable — it ought to be considered whether it is feasible, instead, to block the tunnel. The latter option will deny the enemy the use of the axis of communication without any practical need to destroy any of the bridges. It is posited that the bridges and the tunnels are “dual-use” targets, because civilians (especially refugees) use them at the same time as enemy armed forces. If so, the expected collateral damage to be assessed is that resulting from an attack on all three bridges versus the collateral damage expected from the attack on that single tunnel.
- Another example would be an intended attack against a power generating facility located in the vicinity of civilians or civilian objects, which provides essential power to the civilian population. If the sole objective is to temporarily disrupt power to enemy forces, it might be possible in the circumstances to conduct the attack against the transformers or substations serving the power generating facility. If the attack against the transformers or substations “may be expected to cause the least danger to civilian lives and to civilian objects”, then this is the attack that needs to be preferred over an attack against the power generating facility itself.
- It is to be understood that, for Rule 33 to apply, a choice has to be possible between several military objectives for obtaining a similar military advantage. There is no requirement to select among several objectives if doing so would be militarily unreasonable. As an example, if a choice has to be made between two alternative military objectives — one of which is more densely defended than the other — the attacker is not required to select the latter when heavy casualties are anticipated to the attacking force.[295]
- Art. 57 (3) of AP/I, see fn. 285.
- NIAC Manual to SRM/ACS, page 28, Para. 9: “… there is no requirement to select an objective if doing so would be militarily ‘unreasonable’. As an example, one of the possible objectives may be so much more heavily defended than the others, that it would be unreasonable to select it as the target. Risk to the attacker is a relevant factor. Munitions availability is another. Aside from the fact that certain systems may be unavailable, the attacker will need to take into account future requirements and replenishment. For instance, when the number of precision-guided munitions is limited, it would be imprudent for the attacker to expend them early in the conflict without considering possible future needs and capabilities.”
