Rule 37
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.”
Categories: G: Specifics of Air or Missile Operations
