(1) (q) “Feasible” means that which is practicable or practically possible, taking into account all circumstances prevailing at the time, including humanitarian and military considerations.
- This definition is based upon declarations made by States at the time of ratification of AP/I, where the concept “feasible” appears, e.g., in Arts. 41, 56, 57, 58, 78 and 86. A similar definition is given in the second sentence of Art. 3 (10) of the 1996 Amended Protocol II to the CCW.”
- The term “feasible” appears in several Rules of this Manual and could have different practical meaning when the context is different. For instance, with regard to verification as to whether an aircraft in the air constitutes a military objective (see Rule 40), what is feasible may depend on the availability of technical means for observation and detection. This is supported by the ICRC Commentary on AP/I. With regard to the removal of the civilian population from the vicinity of military objectives (see Rule 43), the feasibility may depend on the availability of means of transportation and alternative housing.
- The feasibility of a particular course of action will depend on which information or which means are in fact available to military commanders at the relevant time and place. The mere fact that such information or such means exist somewhere is irrelevant for determining feasibility. Thus, Austria, when ratifying AP/I declared that Art. 57 (2) of AP/I “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 term “at the time” is to emphasize that any judgment on feasibility is to be taken at the time in which attacks are decided upon or executed. This is a clear rejection of any hindsight analysis. For instance, Australia (among others), upon ratification of AP/I, in relation to Arts. 51–58 thereof, declared that “military commanders and others responsible for planning, deciding upon or executing attacks, necessarily have to reach their decisions on the basis of their assessment of the information from all sources, which is available to them at the relevant time.” In other words, options that become apparent after the battle has been fought are not relevant if they were not apparent at the critical moment. See also paragraph 8 of the Commentary on Rule 12 (a) and paragraph 5 of the Commentary on Rule 14.
- As made clear in the last part of this definition, feasibility is to be determined by taking into account both humanitarian and military considerations. Military commanders may, therefore, take into account the circumstances relevant to the success of an attack or of the overall military operation, including the survival of military aircraft and their crews. However, the factoring in of such military considerations may not result in a neglect of humanitarian obligations under the law of international armed conflict. This means that, whereas a particular course of action may be considered non-feasible due to military considerations (such as excessive risks to aircraft and their crews), some risks have to be accepted in light of humanitarian considerations.
- In the final analysis, the determination of feasibility under the law of international armed conflict remains “a matter of common sense and good faith”. There are currently no absolute standards applicable to any judgment on feasibility.
- Art. 3 of the 1996 Amended Protocol II to the CCW: “(10) All feasible precautions shall be taken to protect civilians from the effects of weapons to which this Article applies. Feasible precautions are those precautions which are practicable or practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations. These circumstances include, but are not limited to: (a) the short- and long-term effects of mines upon the local civilian population for the duration of the minefield; (b) possible measures to protect the civilians (for example, fencing, signs, warning and monitoring); (c) the availability and feasibility of using alternatives; and (d) the short- and long-term military requirements for a minefield.”
- Para. 2198 and Para. 2199 of the ICRC Commentary on AP/I pertaining to the use of the words “everything feasible” in Art. 57 (2) (a) (i) of AP/I.
- Ibid., Para. 2198.
Categories: Section A: Definitions