Rule 46
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.”
