Rule 33
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.”
Categories: G: General Rules
