Belligerent Parties subject to air or missile attacks must, to the maximum extent feasible, avoid locating military objectives within or near densely populated areas, hospitals, cultural property, places of worship, prisoner of war camps, and other facilities which are entitled to specific protection as per Sections K, L and N (II).
[Commentary]
- The Rule is based on Art. 58 (b) of AP/I.[314] See also the second paragraph of Art. 19 of GC/I[315] as well as Art. 83 of GC/IV.[316]
- Although it does not follow directly from the text, the spirit of Art. 23 of GC/III[317] entails that similar considerations must apply to POW-camps as to densely populated areas and hospitals. The Group of Experts could not see any good reason why in practice there ought to be a distinction between POW-camps and civilian objects.
- According to Art. 23 of GC/III and Art. 83 of GC/IV, POW-camps and internment camps must — whenever military considerations permit — be indicated by the letters PW/PG and IC respectively, placed so as to be clearly visible in the daytime from the air. The Powers concerned may, however, agree upon any other system of marking. In modern air and missile warfare it may prove necessary to consider other methods than marking in order to bring protected locations to the notice of the enemy.
- Rule 42 is the general Rule. It must, however, be acknowledged that military objectives are sometimes located in urban areas due to practical or military reasons. Thus, Ministries of Defence and other military objectives have long been located in urban areas and cannot be removed. In such cases, the obligation remains on the attacking party to ensure that the attack is not expected to cause excessive collateral damage (see Rule 14). Under the circumstances, one way of achieving this end may be through the use of precision guided weapons (see Rule 8).
- The existence of military objectives in urban areas does not preclude the possibility that the locality will become a non-defended place. As to the issue of declared non-defended localities, see the Commentary on Rule 10 (b) (ii).
- Rule 42 applies also in non-international armed conflict.[318] However, since there is no entitlement to POW-status in non-international armed conflict, there are no POW-camps to consider.
- Art. 58 (b) of AP/I: “The Parties to the conflict shall, to the maximum extent feasible: … (b) avoid locating military objectives within or near densely populated areas.”
- Second paragraph of Art. 19 of GC/I: “The responsible authorities shall ensure that the said medical establishments and units are, as far as possible, situated in such a manner that attacks against military objectives cannot imperil their safety.”
- Art. 83 of GC/IV: “The Detaining Power shall not set up places of internment in areas particularly exposed to the dangers of war. The Detaining Power shall give the enemy Powers, through the intermediary of the Protecting Powers, all useful information regarding the geographical location of places of internment. Whenever military considerations permit, internment camps shall be indicated by the letters IC, placed so as to be clearly visible in the daytime from the air. The Powers concerned may, however, agree upon any other system of marking. No place other than an internment camp shall be marked as such.”
- Art. 23 of GC/III: “No prisoner of war may at any time be sent to, or detained in areas where he may be exposed to the fire of the combat zone, nor may his presence be used to render certain points or areas immune from military operations. Prisoners of war shall have shelters against air bombardment and other hazards of war, to the same extent as the local civilian population. With the exception of those engaged in the protection of their quarters against the aforesaid hazards, they may enter such shelters as soon as possible after the giving of the alarm. Any other protective measure taken in favour of the population shall also apply to them. Detaining Powers shall give the Powers concerned, through the intermediary of the Protecting Powers, all useful information regarding the geographical location of prisoner of war camps. Whenever military considerations permit, prisoner of war camps shall be indicated in the day-time by the letters PW or PG, placed so as to be clearly visible from the air. The Powers concerned may, however, agree upon any other system of marking. Only prisoner of war camps shall be marked as such.”
- See NIAC Manual to SRM/ACS, at page 44.
Belligerent Parties subject to air or missile attacks must, to the maximum extent feasible, endeavour to remove the civilian population, individual civilians and other protected persons and objects under their control from the vicinity of military objectives.
[Commentary]
- This Rule is based on Art. 58 (a) of AP/I[319] and on Para. 8.3.2. of NWP.[320]
- A typical measure would be to evacuate areas close to, e.g., the contact zone, military airports and munitions factories. In some situations one would move particularly vulnerable parts of the civilian population (such as children and expectant mothers) from affected areas. The first paragraph of Art. 14 of GC/IV[321] suggests that hospital and safety zones and localities can be established for such purposes. Art. 15 of GC/IV has corresponding provisions for neutralized zones in the regions where fighting is taking place.[322]
- Rule 43 is without prejudice to Art. 49 of GC/IV,[323] which limits an Occupying Power’s right to undertake transfers of protected persons. Under Art. 49 of GC/IV, the Occupying Powers may totally or partially evacuate a given area if the security of the population or imperative military reasons so demand. Persons thus evacuated must be transferred back to their homes as soon as hostilities in the area in question have ceased. Permanent deportation from occupied territory is prohibited.
- A Belligerent Party must neither encourage nor tolerate “voluntary human shields” who, therefore, ought to be removed from military objectives (see Rule 45).
- The expression “other protected persons and objects” means POWs, mobile cultural property, etc.
- Art. 58 (a) of AP/I: “The Parties to the conflict shall, to the maximum extent feasible: (a) without prejudice to Art. 49 of the Fourth Convention, endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives.”
- First sentence of Para. 8.3.2 of NWP: “A party to an armed conflict has an affirmative duty to remove civilians under its control (as well as the wounded, sick, shipwrecked, and prisoners of war) from the vicinity of objects of likely enemy attack.”
- First paragraph of Art. 14 of GC/IV: “In time of peace, the High Contracting Parties and, after the outbreak of hostilities, the Parties thereto, may establish in their own territory and, if the need arises, in occupied areas, hospital and safety zones and localities so organized as to protect from the effects of war, wounded, sick and aged persons, children under fifteen, expectant mothers and mothers of children under seven.”
- Art. 15 of GC/IV: “Any Party to the conflict may, either direct or through a neutral State or some humanitarian organization, propose to the adverse Party to establish, in the regions where fighting is taking place, neutralized zones intended to shelter from the effects of war the following persons, without distinction: (a) wounded and sick combatants or non-combatants; (b) civilian persons who take no part in hostilities, and who, while they reside in the zones, perform no work of a military character. When the Parties concerned have agreed upon the geographical position, administration, food supply and supervision of the proposed neutralized zone, a written agreement shall be concluded and signed by the representatives of the Parties to the conflict. The agreement shall fix the beginning and the duration of the neutralization of the zone.”
- Art. 49 of GC/IV: “Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive. Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand. Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement. Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased. The Occupying Power undertaking such transfers or evacuations shall ensure, to the greatest practicable extent, that proper accommodation is provided to receive the protected persons, that the removals are effected in satisfactory conditions of hygiene, health, safety and nutrition, and that members of the same family are not separated. The Protecting Power shall be informed of any transfers and evacuations as soon as they have taken place. The Occupying Power shall not detain protected persons in an area particularly exposed to the dangers of war unless the security of the population or imperative military reasons so demand. The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”
Belligerent Parties subject to air or missile attacks must, to the maximum extent feasible, take necessary precautions to protect the civilian population, individual civilians and civilian objects under their control against the dangers resulting from military operations.
[Commentary]
- This Rule is based on Art. 58 (c) of AP/I.[324]
- The “necessary precautions” contemplated here include, e.g., air warning systems, air raid shelters, etc.
- The obligations of Belligerent Parties subject to attack to take feasible precautions to protect the civilian population, individual civilians and civilian objects extends to attacks conducted by UCAVs.
- The availability of UCAVs to the enemy may fundamentally change the nature of the threat to civilians and civilian objects. The smaller visual, radar and noise signatures of UCAVs may allow them greater penetrability than manned aircraft. Thus, UCAVs may be used even when effective air defenses make attacks by manned aircraft highly risky to the aircraft and its crew. When a Belligerent Party subject to missile attacks is aware of the availability of UCAVs to the enemy, its obligation to do everything feasible to protect the civilian population, individual civilians and civilian objects under its control, from the dangers resulting from military operations, is therefore enhanced.
- As far as dams, dykes or nuclear electrical generating stations are concerned, based upon Art. 56 of AP/I,[325] Belligerent Parties may mark such objects with the international sign provided in Art. 56 (7) of AP/I (consisting of a group of three bright orange circles placed on the same axis). Furthermore (subject to further conditions laid down in Art. 56 (5) of AP/I), they must endeavour to avoid locating any military objectives in the vicinity of such works or installations, with the exception of installations erected for the sole purpose of defending the protected works or installations from attack. Finally (Art. 56 (6) of AP/I), they are urged to conclude further agreements among themselves to provide additional protection for objects containing dangerous forces. The markings specified in AP/I (and any other markings applied pursuant to agreement) are meant to facilitate identification only, and they do not provide protection in and of themselves.
- Art. 58 of AP/I: “The Parties to the conflict shall, to the maximum extent feasible: … (c) take the other necessary precautions to protect the civilian population, individual civilians and civilian objects under their control against the dangers resulting from military operations.”
- Art. 56 of AP/I, see fn. 299.
Belligerent Parties actually or potentially subject to air or missile operations must not use the presence or movements of the civilian population or individual civilians to render certain points or areas immune from air or missile operations, in particular they must not attempt to shield lawful targets from attacks or to shield, favour or impede military operations. Belligerent Parties must not direct the movement of the civilian population or individual civilians in order to attempt to shield lawful targets from attacks or to shield military operations.
[Commentary]
- This Rule is based on Art. 51 (7) of AP/I[326] and on Para. 8.3.2 of NWP.[327]
- The prohibition entails that a Belligerent Party which is actually or potentially subject to air or missile operations will not take advantage of the presence or movements of civilians at or near a lawful target.
- In urban warfare, civilians are likely to be present at, or close to, lawful targets. Although such presence may be unavoidable, the Belligerent Party actually or potentially subject to attack is prohibited from deliberately taking advantage of this and must therefore keep their forces separated from the civilian population as far as circumstances permit. This entails that they must — to the maximum extent feasible — keep civilians at sufficient distance from obvious lawful targets and avoid locating military positions close to schools, market-places and other locations where civilians are likely to concentrate.
- Combat operations are likely to induce large-scale movements of refugees. Combatants are not allowed to mix in the stream of refugees in order to conceal their presence or discourage the enemy from attacking.[328] Such mixing is in breach of the prohibition of “human shields”. Belligerent Parties are likewise prohibited from intentionally directing a stream of refugees towards points where their presence is likely to hamper the movements of the enemy.
- “Human shields” may be “voluntary” or “involuntary”. By “voluntary human shields” is usually meant those who take up position at a lawful target as an act of defiance vis-à-vis the attacking Belligerent Party or as an act of solidarity with the Belligerent Party subject to attack.
- There were three divergent views within the Group of Experts about the status of “voluntary human shields”. One view was that voluntary human shields are not counted in the calculation of collateral damage because they are directly participating in hostilities. A second view held that voluntary human shields do not qualify as civilians directly participating in hostilities. Hence, they remain protected civilians who count fully under the proportionality analysis. [329]Finally, the third view agreed with the second view as to the status of voluntary human shields, but asserted that the principle of proportionality will apply to them in a modified (more relaxed) way, since they have deliberately put themselves in harm’s way in order to affect military operations.
- “Involuntary human shields” include both those who have been compelled to stay at or in the vicinity of a lawful target, and those who do not know or lack the capacity to understand their situation, such as school children. There was no dispute among the Group of Experts that “involuntary human shields” count as civilians in a proportionality analysis. There was, however, disagreement as to whether the principle of proportionality will be applied to such a situation in the usual form, or whether it can be applied in the circumstances in a modified (more relaxed) way because the enemy has caused the situation by bringing the civilians in harm’s way.
- It is often unclear from the circumstances whether human shields are voluntary or not. In such cases, the presumption is that they are involuntary. It is the attacker that bears the burden of proof of establishing that the individuals involved are acting voluntarily.
- Art. 51 (7) of AP/I: “The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations.”
- Second sentence and following of Para. 8.3.2 of NWP: “Deliberate use of civilians to shield military objectives from enemy attack is prohibited. Although the principle of proportionality underlying the concept of collateral damage continues to apply in such cases, the presence of civilians within or adjacent to a legitimate military objective does not preclude attack of it. Such military objectives may be lawfully targeted and destroyed as needed for mission accomplishment. In such cases, responsibility for the injury and/or death or such civilians, if any, falls on the belligerent so employing them.”
- Art. 50 (3) of AP/I: “The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.”
- For all details of the ICRC position on voluntary human shields, see ICRC Interpretive Guidance at pages 56–57.
Both the Belligerent Party launching an air or missile attack and the Belligerent Party subject to such an attack have obligations to take precautions. Nevertheless, the latter’s failure to take precautionary measures does not relieve the Belligerent Party launching an air or missile attack of its obligation to take feasible precautions.
[Commentary]
- This Rule is based on Art. 51 (8) of AP/I.[330]
- Rule 46 deals with the interaction between “active precautions” (see Section G) and “passive precautions” (see Rules 42 through 45). The thrust of Rule 46 is that, if a Belligerent Party subject to attack has failed to take the required measures for the protection of its own civilian population, such as providing air raid shelters or evacuating particularly affected areas, an attacker is still obliged to take feasible precautions as indicated in Section G.
- The Group of Experts disagreed as to whether the situation is different if the Belligerent Party subject to attack has placed, encouraged or tolerated “human shields” at a military objective or its vicinity. This situation is discussed under Rule 45.
- Art. 51 of AP/I: “(8) Any violation of these prohibitions shall not release the Parties to the conflict from their legal obligations with respect to the civilian population and civilians, including the obligation to take the precautionary measures pro¬vided for in Art. 57.”
