Constant care must be taken by all those involved in planning, ordering and executing air or missile combat operations to spare the civilian population, civilians and civilian objects.
[Commentary]
- This Rule is an application of Rules 31–33 of this Manual to the specifics of air or missile combat operations (see Rule 1 (c)). See also Para. 5.32.9. of the UK Manual.[296]
- “Planning” includes all elements necessary to the issuance of an operations order, such as preparation of targeting decisions, recommendations on means of warfare and means of delivery, flight path, suppression of enemy defences and ancillary activities such as warnings.
- “Ordering” means deciding on the implementation of a particular plan and the issuance of instructions such as an air tasking order to those involved in the execution.
- “Executing” is not limited to the actual use of means of warfare, but extends to those who provide running directions or information from control units in the air or on the surface, provide targeting data by coordinates, laser designation or other means, or otherwise participate directly in ensuring that the operations order is carried out. This could for instance be an AWACS or a joint terminal attack controller (JTAC) on the ground.
- Para. 5.32.9 of the UK Manual (“Level of responsibility”): “The level at which the legal responsibility to take precautions in attack rests is not specified in Additional Protocol I. Those who plan or decide upon attacks are the planners and commanders and they have a duty to verify targets, take precautions to reduce incidental damage, and refrain from attacks that offend the proportionality principle. Whether a person will have this responsibility will depend on whether he has any discretion in the way the attack is carried out and so the responsibility will range from commanders-in-chief and their planning staff to single soldiers opening fire on their own initiative. Those who do not have this discretion but merely carry out orders for an attack also have a responsibility: to cancel or suspend the attack if it turns out that the object to be attacked is going to be such that the proportionality rule would be breached.”
In carrying out air or missile combat operations, an attack must be cancelled or suspended if it becomes apparent:
[Commentary]
(a) That the target is not a lawful target; or
[Commentary]
(b) That the target is and remains entitled to specific protection in accordance with Sections K, L, M and N of this Manual; or
[Commentary]
(c) That the expected collateral damage is excessive in relation to the concrete and direct military advantage anticipated.
[Commentary]
- The three conditions of this Rule are derived from Art. 57 (2) of AP/I.[297] See also para. 46 (d) of the SRM/ACS.[298]
- The three conditions set out in Rule 35 apply the more general norms of Rule 32 to the specific context of air or missile warfare. Rule 35 (a) applies Rule 32 (a); Rule 35 (b) applies Rule 31; and Rule 35 (c) applies Rule 14.
- Rule 35 applies not only to command echelons planning or ordering an attack. It also applies to aircrews (or operators of UCAVs) executing it when it becomes apparent to them that conditions of Rule 35 (a), Rule 35 (b), or Rule 35 (c), or a combination thereof, applies.
- Even though Rule 35 is phrased in mandatory language (“must”), it has to be reasonably interpreted. That is to say, the presupposition is that aircrews are in a position to actually cancel or suspend an attack.
- It must be borne in mind that aircrews may have more or less information than others involved in the planning or execution of attacks, depending on the circumstances of the case. See paragraph 4 of the Commentary on Rule 32 (a). If onsite information makes it clear to the aircrews that any one of the three conditions of this Rule applies, they have to cancel or suspend the attack on their own initiative.
- The requirement of cancellation of missile attacks is relevant not only to externally controlled and guided missiles, but also to the launching of successive waves of ballistic missiles.
- For the specifics of attacks directed against aircraft in the air, see Rule 40.
- Rule 35 applies also in non-international armed conflict.
- Art. 57 (2) of AP/I, see fn. 285.
- Support can also be found in Para. 46 (d) of the SRM/ACS: “With respect to attacks, the following precautions shall be taken: … (d) an attack shall not be launched if it may be expected to cause collateral casualties or damage which would be excessive in relation to the concrete and direct military advantage anticipated from the attack as a whole; an attack shall be cancelled or suspended as soon as it becomes apparent that the collateral casualties or damage would be excessive.”
The Sections referred to deal with medical units and medical transports; medical aircraft; the natural environment and other protected persons and objects.
This is the principle of proportionality (see
Rule 14).
In order to avoid the release of dangerous forces and consequent severe losses among the civilian population, particular care must be taken if works and installations containing dangerous forces, namely dams, dykes and nuclear electrical generating stations (as well as installations located in their vicinity) are attacked.
[Commentary]
- This Rule is confined to dams, dykes and nuclear electrical generating stations (as well as to installations located in their vicinity). It does not apply to any other work or installation containing dangerous forces. Thus, e.g., facilities such as petrochemical industry plants are not covered by Rule 36. For an attack on the latter, Rules 30–33 apply. Under general customary international law, feasible precautions have to be taken when the latter are being attacked, in order to avoid — or, in any event, minimize — collateral damage which may be caused, e.g., by the release of harmful agents.
- Art. 56 of AP/I[299] provides that the works and installations referred to in Rule 36 cannot be attacked, even when they are military objectives, if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population. There is general agreement that Art. 56 of AP/I does not constitute customary law,[300] and it follows that Contracting Parties to AP/I are therefore bound by a higher level of protection than that required under customary law.
- However, non-Contracting Parties to AP/I acknowledge[301] that the civilian population enjoys protection against excessive collateral damage expected from attacks on dams, dykes and nuclear electrical generating stations, as laid down in Rule 14. In any event, as Rule 36 clarifies, particular care must be taken in order to avoid the release of dangerous forces resulting in severe losses among the civilian population.
- Under Art 56 (2) and (3) of AP/I, there is a possibility of loss of protection for such installations. However, this is subject to specific restrictions.
- Art. 56 of AP/I (“Protection of works and installations containing dangerous forces): “(1) Works or installations containing dangerous forces, namely dams, dykes and nuclear electrical generating stations, shall not be made the object of attack, even where these objects are military objectives, if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population. Other military objectives located at or in the vicinity of these works or installations shall not be made the object of attack if such attack may cause the release of dangerous forces from the works or installations and consequent severe losses among the civilian population. (2) The special protection against attack provided by paragraph 1 shall cease: (a) for a dam or a dyke only if it is used for other than its normal function and in regular, significant and direct support of military operations and if such attack is the only feasible way to terminate such support; (b) for a nuclear electrical generating station only if it provides electric power in regular, significant and direct support of military operations and if such attack is the only feasible way to terminate such support; (c) for other military objectives located at or in the vicinity of these works or installations only if they are used in regular, significant and direct support of military operations and if such attack is the only feasible way to terminate such support. (3) In all cases, the civilian population and individual civilians shall remain entitled to all the protection accorded them by international law, including the protection of the precautionary measures provided for in Article 57. If the protection Ceases and any of the works, installations or military objectives mentioned in paragraph 1 is attacked, all practical precautions shall be taken to avoid the release of the dangerous forces. (4) It is prohibited to make any of the works, installations or military objectives mentioned in paragraph 1 the object of reprisals. (5) The Parties to the conflict shall endeavour to avoid locating any military objectives in the vicinity of the works or installations mentioned in paragraph 1. Nevertheless, installations erected for the sole purpose of defending the protected works or installations from attack are permissible and shall not themselves be made the object of attack, provided that they are not used in hostilities except for defensive actions necessary to respond to attacks against the protected works or installations and that their armament is limited to weapons capable only of repelling hostile action against the protected works or installations. (6) The High Contracting Parties and the Parties to the conflict are urged to conclude further agreements among themselves to provide additional protection for objects containing dangerous forces. (7) In order to facilitate the identification of the objects protected by this article, the Parties to the conflict may mark them with a special sign consisting of a group of three bright orange circles placed on the same axis, as specified in Article 16 of Annex I to this Protocol [Article 17 of Amended Annex]. The absence of such marking in no way relieves any Party to the conflict of its obligations under this Article.”
- See ICRC Customary IHL Study, Rule 42 and the discussion at pages 139–141.
- Para. 8.9.1.7 of NWP: “Dams, dikes, levees, and other installations, which if breached or destroyed would release flood waters or other forces dangerous to the civilian population, should not be bombarded if the anticipated harm to civilians would be excessive in relation to the anticipated military advantage to be gained by bombardment. Conversely, installations containing such dangerous forces that are used by belligerents to shield or support military activities are not so protected. (See paragraph 8.5.1.2.).”
When the attack of a lawful target by air or missile combat operations may result in death or injury to civilians, effective advance warnings must be issued to the civilian population, unless circumstances do not permit. This may be done, for instance, through dropping leaflets or broadcasting the warnings. Such warnings ought to be as specific as circumstances permit.
[Commentary]
- This Rule is based on Art. 57 (2) (c) of AP/I,[302] as well as on Art. 26 of the 1907 Hague Regulations.[303] See also Art. 6 (4) of the 1996 Amended Protocol II to the CCW.[304]
- Considering that it is based on the 1907 Hague Regulations, the warning obligation can be considered customary law.
- Art. 57 (2) (c) of AP/I uses the term “may affect the civilian population”. So does Art. 6 (4) of the 1996 Amended Protocol II to the CCW. However, Rule 37 of this Manual applies only to air or missile combat operations that “may result in death or injury to civilians”.
- Rule 37 does not come into play when a particular air or missile combat operations may result only in damage to, or destruction of, civilian objects. Neither does it come into play in case the attack results in mere inconveniences to civilians caused by, e.g., electrical blackouts or reduced mobility due to broken lines of communications.
- There was disagreement among members of the Group of Experts as to whether the duty to issue warnings is limited to civilians located in close proximity to the target.[305]
- The term “unless circumstances do not permit” is meant to reflect principally the fact that issuance of an advance warning to the civilian population would deprive the attacker of the element of surprise and may allow the defender to enhance target area defences. If a military combat operation is predicated on the element of surprise, no warning is obligatory in relation to that attack.
- The term “as specific as circumstances permit” indicates that the degree of specificity of the warning may depend on further factors such as (i) the length of time prior to the attack in relation to which the warning is issued; and (ii) the most effective mode in which the effective warning can be issued to civilians.
- The Group of Experts could not determine (i) the level of the commander who is supposed to issue the warning; or (ii) the geographic extent to which the warning must apply. There was unanimity among the members of the Group of Experts, however, that irrespective of the level of the commander and the geographic extent of the warning, it must be “effective” by reaching the civilians likely to suffer death or injury from the attack.
- In this context, the mode of warning issued to the civilian population may depend on available equipment and other factors affecting its feasibility, such as enemy defences that make the dropping of leaflets from the air impracticable. It is also necessary to consider factors bearing on the effectiveness of the warning. As for timing, an imprecise warning issued well in advance of the attack may be more effective than a precise warning immediately preceding it. Similarly, a warning issued well in advance of the attack — reaching only a certain part of the civilian population — may be more effective than one reaching the entire civilian population, which is issued just prior to the attack.
- Warnings ought not be vague but be as specific as circumstances permit to allow the civilian population to take relevant protective measures, like seeking shelter or staying away from particular locations.
- In some situations the only feasible method of warning may be to fire warning shots using tracer ammunition, thus inducing people to take cover before the attack.
- Warnings have to be made in a language that is understood by the local population.
- “[B]roadcasting” means not only radio broadcasts but also telecasting and other means such as internet announcements.
- Warnings must not be abused as a means of spreading terror among the civilian population. See Rule 18 that prohibits acts or threats of violence in the course of air or missile operations pursued for the sole or primary purpose of spreading terror among the civilian population.
- Warnings need not be formal in nature. They may be issued either verbally or in writing, or through any other means that can reasonably be expected to be effective under the circumstances.
- An effective warning does not make an unlawful attack lawful, nor does it divest the attacker from its other obligations to take feasible precautionary measures.
- Art. 57 (2) (c) of AP/I, see fn. 285.
- Art. 26 of the 1907 Hague Regulations: “The officer in command of an attacking force must, before commencing a bombardment, except in cases of assault, do all in his power to warn the authorities.”
- Art. 6 (4) of the 1996 Amended Protocol II to the CCW, see fn. 169.
- Para. 8.9.2 of NWP (“Warning before Bombardment”): “Where the military situation permits, commanders should make every reasonable effort to warn the civilian population located in close proximity to a military objective targeted for bombardment. Warnings may be general rather than specific lest the bombarding force or the success of its mission be placed in jeopardy.”
Effective advance warnings must also be given before attacking persons and objects entitled to specific protection under Section K, L and N (I and II), as provided for in these Sections, as well as under Section J.
[Commentary]
- This Rule is based on Art. 21 of GC/I (medical units).[306] See also the first paragraph of Art. 34 of GC/II (hospital ships),[307] Art. 19 of GC/IV (civilian hospitals),[308] Art. 13 of AP/I (civilian medical units), and Art. 65 (1) of AP/I (civil defence),[309] as well as Art. 11 (1) of the 1954 Hague Convention (cultural property).[310]
- The relevant Rules in the Sections referred to are: (i) Rule 70 in Section J; (ii) Rule 74 in Section K; (b); (iii) Rule 83 in Section L; (iv) Rule 92 in Section N (I); (v) Rule 96 in Section N (II).
- The reference in Rule 38 to Sections J, K, L and N (I) and N (II) subjects the general norms to the specific nuances of the warning requirement, as reflected in each specific Section. For example, note has to be taken of the less than settled nature of the obligation to issue advance warning once cultural property has become a military objective (see Rule 96).
- Advance warnings before attacks in cases of “misuse” of objects entitled to specific protection differ from warnings according to Rule 37 in that the purpose of warnings under the Rule 38 would be to put an end to the misuse, so that the attack would not be necessary and could be cancelled. By contrast, warnings according to Rule 37 have no such purpose and only convey the information that an attack will take place in the near future, with a view to avoiding — or, in any event, minimizing — collateral damage to the civilian population or to civilian objects.
- Warnings that are intended to put an end to misuse should include a time limit to redress the situation, to the extent that circumstances permit.
- Warnings need not be formal in nature. See paragraph 15 of the Commentary on Rule 37.
- Art. 21 of GC/I, see fn. 414.
- First paragraph of Art. 34 of GC/II: “The protection to which hospital ships and sick-bays are entitled shall not cease unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy. Protection may, however, cease only after due warning has been given, naming in all appropriate cases a reasonable time limit, and after such warning has remained unheeded.”
- Art. 19 of GC/IV: “The protection to which civilian hospitals are entitled shall not cease unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy. Protection may, however, cease only after due warning has been given, naming, in all appropriate cases, a reasonable time limit and after such warning has remained unheeded. The fact that sick or wounded members of the armed forces are nursed in these hospitals, or the presence of small arms and ammunition taken from such combatants and not yet handed to the proper service, shall not be considered to be acts harmful to the enemy.”
- Art. 65 (1) of AP/I, see fn. 530.
- Art. 11 (1) of the 1954 Hague Convention: “If one of the High Contracting Parties commits, in respect of any item of cultural property under special protection, a violation of the obligations under Art. 9, the opposing Party shall, so long as this violation persists, be released from the obligation to ensure the immunity of the property concerned. Nevertheless, whenever possible, the latter Party shall first request the cessation of such violation within a reasonable time.”
The obligation to take feasible precautions in attack applies equally to UAV/UCAV operations.
[Commentary]
- The law of international armed conflict has no provisions that are specific to UAV/UCAV. Therefore, the general requirements to take feasible precautions apply. The fact that a UAV/UCAV is unmanned does not relieve an attacker of taking such precautions. For the definition of UAV, see Rule 1 (dd). For the definition of UCAV, see Rule 1 (ee).
- UAVs can be a useful asset in complying with the obligation to take feasible precautions in attack. UAVs with on-board sensors will contribute to verification that an intended target is a lawful target (see Rule 32 (a) and Rule 35 (a)). Hence, if available and when their use is feasible, UAVs ought to be employed in order to enhance reliability of collateral damage estimates (especially when this can be done in real-time).
- With regard to remotely piloted UCAVs, UCAV operators must employ on-board and/or other reasonably available sensors and sources of intelligence, to the extent feasible, to verify the target and assess expected collateral damage (see Rule 32 (c) and Rule 35 (c)). The fact that the UCAV is unmanned does not necessarily detract from the reliability of information on which the decision to attack is based. Indeed, such assessments by remote operators may be more reliable than those of aircrews on the scene facing enemy defences and other distractions.
- In case of autonomous systems, the UCAV must only be programmed to engage potential targets based on reliable information that they are lawful targets. The performance of the sensors and the program identifying lawful targets must be comparable to that of manned aircraft or to that of remotely piloted (i.e. non-autonomous) UCAVs.
- The standards set forth in Rule 12 regarding doubt apply equally to UCAV attacks, whether autonomous or manned.
- When feasible, the options of using UCAVs in lieu of manned aircraft or other weapon systems, or vice versa, ought to be considered in determining how best to attack a target while avoiding — or, in any event, minimizing — collateral damage. For instance, use of a UCAV in circumstances in which visual identification of the target is necessary — either to reliably verify the target or to avoid excessive collateral damage — may be called for if defensive actions by the defending forces would likely impede visual identification by aircrews. Alternatively, a manned aircraft rather than a UCAV may be called for when its sensors are superior to those of a UCAV or where the visual identification by aircrews would be more reliable than images transmitted from the UCAV’s sensors to its operator.
