Rule 12
(a) In case of doubt as to whether a person is a civilian, that person shall be considered a civilian.
[Commentary]
(b) In case of doubt as to whether an object which is ordinarily dedicated to civilian purposes is being used for military purposes, it may only be attacked if, based on all the information reasonably available to the commander at the time, there are reasonable grounds to believe that it has become and remains a military objective.
[Commentary]
- This Rule is based on Art. 50 (1) of AP/I.[209]
- All feasible precautions must be taken in order to verify that attacks are directed at lawful targets (see Rule 32 (a) and Rule 35 (a)). Rule 12 (a) applies when, after a verification process, there is still doubt.
- Indications that a person is a lawful target, either as a combatant or as a civilian taking a direct part in hostilities, will depend on the circumstances. For instance, in some societies, it is normal for males to carry a firearm routinely. In other environments, similar behaviour could be regarded as conclusive evidence of membership in a non-State organized armed group.
- It is often the case in aerial operations that some uncertainty exists regarding status of a person as a civilian. The degree of doubt necessary to preclude an attack is that which would cause a reasonable attacker in the same or similar circumstances to abstain from ordering or executing an attack.
- The issue of doubt as to whether a person is a civilian, is of special importance in the context of direct participation in hostilities (see Section F).
- Rule 12 (a) applies also in non-international armed conflict.
- Second sentence of Art. 50 (1) of AP/I: “In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.”
- This Rule is based on Art. 52 (3) of AP/I.[210]
- Rule 12 (b) only relates to the category of military objectives through “use”. In other words, the situation involves enemy forces using for military ends an object that is normally dedicated to civilian purposes. Art. 52 (3) of AP/I offers “a place of worship, a house or other dwelling or a school” as examples of objects which are normally dedicated to civilian purposes. These examples are considered to be only illustrative. The buildings that are mentioned do not have any special status compared to other typically civilian buildings or installations. Additional examples are commercial offices, shopping areas and facilities and markets.[211]
- All feasible precautions must be taken in order to verify that attacks are directed at lawful targets (see Rule 32 (a) and Rule 35 (a)). Rule 12 (b) applies when, after a verification process, there is still doubt.
- Doubt is often present in situations of armed conflict. Rule 12 (b) clarifies the standard. It is not the existence of any doubt that precludes attack, but rather reasonable doubt. In other words, an attacker must act reasonably in deciding to attack such objects, specifically taking into account, among other factors, the fact that the intended target is normally one used for civilian purposes. The attacker would also have to take into account the reliability of the information that indicates that the object is used for military purposes. If there is reason to doubt the reliability of the information, one cannot reasonably act on that basis.
- The status of the object believed to be used for military purposes need not be established beyond reasonable doubt. A reasonable conclusion to the effect that an object is being so used will suffice. A military commander always has to deal with situations of doubt when choosing between alternative courses of action, weighing expected benefits against risks. The same holds true when there is an uncertainty as to whether an object which is ordinarily dedicated to civilian purposes is being used for military purposes.
- In some situations, the enemy will use places of worship for military purposes as a matter of routine, for instance as observation posts or as a snipers’ perch. Before an attack is launched, it has to be established that the particular place of worship is used for military purposes. One may also have to take into account that the place of worship could, in the circumstances ruling at the time, be used as a refuge by civilians. On this subject, see inter alia Rule 14 on the principle of proportionality; Rule 32 (b) on avoiding — or, in any event, minimizing — collateral damage, as well as Rule 35 (c)); and Rule 45 regarding the prohibition against using civilians as “human shields”.
- “Information” includes military intelligence. The quality and timeliness of the intelligence has to be considered. Other information, such as visual observations on the spot that may corroborate or contradict military intelligence, must also be taken into account.
- There will often be hindsight information that was not available at the time of the attack. The question is, however, whether there was doubt at the time when the decision was taken, as well as when the attack is actually launched (see paragraph 4 of the Commentary on Rule 1 (q) and paragraph 5 of the Commentary on Rule 14). Provided that all feasible precautions were taken (as per Rule 32 (a) and Rule 35 (a)) to verify that the target was a lawful target (see Rule 10), additional information that turns up at some later point in time (perhaps as a result of the attack) is irrelevant.
- Objects normally dedicated to civilian purposes that are being used for military purposes by the enemy regain protected status (although they may still be considered military objectives by purpose, see Rule 22 (c)). Under Rule 1 (j), everything that is not a military objective is a civilian object.
- Art. 52 (3) of AP/I: “In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used.”
- Para. 5.4.2 of the UK Manual: “In cases of doubt, objects that are normally used for civilian purposes are to be presumed as not being used for military purposes. Such objects would include churches, dwelling houses, residential flats, commercial offices and factories, shopping precincts and markets, schools, and libraries.”
Categories: D: General Rules
