Abstract
Many armed conflicts rage in urban areas, where it is particularly difficult for attackers to prevail over their enemy without causing extensive civilian casualties and destruction to civilian infrastructure. This chapter aims to provide a general overview of the legal obligations of the parties to armed conflicts with regard to precautions in attack, particularly in urban and siege warfare.
Jeroen C. van den Boogaard (LL.M, Erasmus University Rotterdam) works as an assistant professor of military law at the Netherlands Defence Academy and as a lecturer and researcher at the University of Amsterdam. Arjen Vermeer (MA and LL.M, Leiden University; LL.M, Geneva Academy of International Humanitarian Law and Human Rights) is an independent legal consultant and lecturer at Leiden University and The Hague University of Applied Sciences. The authors would like to thank Sandra Krähenmann, Agnieszka Jachec-Neale and Rogier Bartels for their valuable comments on an earlier draft. All usual caveats apply.
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Notes
- 1.
Waxman 2000, p 18.
- 2.
ICRC 2015, p 2.
- 3.
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, opened for signature 12 December 1977, 1125 UNTS 3 (entered into force 7 December 19790) (AP I), Articles 57 and 58; Rules 15–21, Henckaerts and Doswald-Beck 2005a, pp 51–76.
- 4.
United Kingdom 2004, p 82.
- 5.
- 6.
AP I, above n 3, Article 57(2)(a).
- 7.
United States military doctrine defines urban operations as “operations planned and conducted on, or against objectives within a topographical complex and its adjacent natural terrain, where man-made construction or the density of population are the dominant features,” see Joint Chiefs of Staff 2013.
- 8.
Vautravers 2010, p 442. It must be added that the tactics of the defenders of the city are also part of the doctrine on siege warfare.
- 9.
- 10.
- 11.
See, generally, Foulk 2007.
- 12.
As US military doctrine observes: “Urban areas present a complex environment for military operations. This complexity is derived from numerous factors such as location, history, economic development, climate, available building materials, the natural terrain on which they are built, the cultures of their inhabitants, and many other factors. There are many ways to frame an understanding of the factors influencing the urban environment, one of which is to view the urban environment as an urban triad consisting of complex manmade physical terrain, a population of significant size and density and varying sociocultural groupings, and an infrastructure,” see Joint Chiefs of Staff 2013, p vii.
- 13.
Tzu 1981, pp 23–24.
- 14.
Watts 2014, p 2.
- 15.
Waxman 2000, p 24.
- 16.
Watts 2014, p 3 and p 12: “siege conditions significantly limit an attacker’s military targeting options.”.
- 17.
- 18.
- 19.
Arreguín-Toft 2005, pp 12–13.
- 20.
- 21.
Hague Convention (IV) with Respect to the Laws and Customs of War on Land and its Annex: Regulation concerning the Laws and Customs of War on Land, opened for signature 18 October 1907, 187 CTS 227 (entered into force 26 January 1910) (Hague Convention IV), Article 27: “[i]n sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected, provided they are not being used at the time for military purposes. It is the duty of the besieged to indicate the presence of such buildings or places by distinctive and visible signs, which shall be notified to the enemy beforehand.”.
- 22.
Watts 2014, p 13.
- 23.
See Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) (GC I), Article 15; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950) (GC II), Article 18; Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (GC IV), Article 17.
- 24.
See Nuremberg Military Tribunal under Control Council Law No 10, United States of America v Wilhelm von Leeb and others, Judgment, 27 October 1948, para 562.
- 25.
See, e.g., Common Article 3 of the Geneva Conventions, which provides for a prohibition against violence to the life of any person not taking a direct part in hostilities.
- 26.
- 27.
See AP I, above n 3, Article 51(5)(a).
- 28.
See AP I, above n 3, Article 54(1).
- 29.
See AP I, above n 3, Articles 57(1) and 58(c). See also the Israeli Manual on the Laws of War stating that the prohibition of starvation “clearly implies that the city’s inhabitants must be allowed to leave the city during a siege”, quoted in Henckaerts and Doswald-Beck 2005a, p 188.
- 30.
See Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons annexed to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects, opened for signature 10 October 1980, 1342 UNTS 171 (entered into force 2 December 1983) (Protocol III CCW), Article 2(2).
- 31.
Schmitt 2012, p viii.
- 32.
- 33.
See, e.g., Corn 2015, p 424.
- 34.
United States Department of War (1863) Instructions for the Government of Armies of the United States in the Field, General Orders No. 100, 24 April 1863 (Lieber Code), Article 15, reprinted in Schindler and Toman 2004, p 3; Hague Convention IV, above n 21, Articles 23(g) and 27(1); Hague Convention (VIII) Relative to the Laying of Automatic Submarine Contact Mines, opened for signature 18 October 1907, 205 CTS 331 (entered into force 26 January 1910), Article 3; Article 2(3), Hague Convention (IX) Concerning Bombardment by Naval Forces in Time of War, opened for signature 18 October 1907, 205 CTS 345 (entered into force 26 January 1910), Article 2(3).
- 35.
See, e.g., ICRC 1956, Article 9(2): “In particular, in towns and other places with a large civilian population, which are not in the vicinity of military or naval operations, the attack shall be conducted with the greatest degree of precision. It must not cause losses or destruction beyond the immediate surroundings of the objective attacked.”.
- 36.
Sandoz et al. 1987, para 2185, p 678.
- 37.
Sandoz et al. 1987, para 2190, p 679.
- 38.
See Common Article 3 to the GCs; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1978) (AP II), Articles 13–18.
- 39.
The rule on precautionary measures is placed in AP I, above n 6, Part IV (Civilian population), Section I (General protection against effects of hostilities), Chapter IV (Precautionary measures).
- 40.
ICRC 1973, Articles 50 and 64.
- 41.
Sassòli and Quintin 2014, p 75.
- 42.
Support for this position can be drawn for instance from ICRC 1969, pp 69–70. Also, the ICRC Commentary to Article 57 AP I explicitly states that “to some extent Article 57 reaffirms rules which are already contained explicitly or implicitly in other articles” (emphasis added). Sandoz et al. 1987, para 2189, p 679.
- 43.
ICTY, Trial Chamber, Prosecutor v Kupreskic et al., Judgment, 14 January 2000, Case No. IT-95-16-T, para 525 (emphasis added).
- 44.
Boothby 2012, p 120.
- 45.
For a more detailed account of precautionary measures and the targeting process, see Corn 2015.
- 46.
See Rules 15, 18, and 19 respectively in Henckaerts and Doswald-Beck 2005a, pp 51–55 and 58–62.
- 47.
AP I, above n 6, Article 57(1).
- 48.
Kalshoven and Zegveld 2011, p 113.
- 49.
HPCR 2010, p 125.
- 50.
- 51.
Boothby 2012, p 119.
- 52.
Bothe et al. 2013, p 328. They also refer to the explanation given by the ICRC “The term attack […] is related to only one specific military operation.” Ibid., p 329. See also the ICRC Commentary to Article 50(1) of the Draft Additional Protocols to the Geneva Conventions of August 12, 1949 (ICRC 1973, p 63), which refers to “military operations, and especially attacks”.
- 53.
Rule 15 in Henckaerts and Doswald-Beck 2005a, pp 51–55.
- 54.
Henckaerts and Doswald-Beck 2005a, p 51.
- 55.
As will be highlighted in the text below, not all treaty obligations concerning precautions include the feasibility standard.
- 56.
Schmitt 2007b, p 162.
- 57.
Henderson 2009, p 160.
- 58.
Rogers 2012, p 113.
- 59.
Boothby 2012, p 120.
- 60.
See also below, Sect. 5.4.5.
- 61.
The Netherlands Ministry of Defence (1993) Voorschrift 27-412/1 V-11 cited in Henckaerts and Doswald-Beck 2005b, Part 1, p 359 (brackets in original).
- 62.
AP I, above n 6, Article 57; Rules 15–21, Henckaerts and Doswald-Beck 2005a, pp 51–67.
- 63.
- 64.
See, however, Article 57(4) which employs the standard of “all reasonable precautions”. This particular provision is not part of the analysis of this contribution.
- 65.
Sassòli and Quintin 2014, p 82, noting that a standard of feasibility “imposes a higher positive obligation” than reasonableness.
- 66.
St. Petersburg Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight, opened for signature 11 December 1968, 138 CTS 297 (entered into force 11 December 1868), para 3.
- 67.
The United Kingdom’s declaration of understanding reprinted in Roberts and Guelff 2000, p 511. See also Additional Protocol to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects (Protocol IV, entitled Protocol on Blinding Laser Weapons), opened for signature 13 October 1995, 1380 UNTS 370 (entered into force 30 July 1998), Article 2, stipulating that feasible precautions include “practical measures”.
- 68.
Rule 15, Henckaerts and Doswald-Beck 2005a, pp 51–55.
- 69.
United Kingdom 2004, pp 83–84.
- 70.
Kalshoven and Zegveld 2011, p 114, explain that where the obligation insists foremost on avoiding damage to the civilian population, “the goal of ‘minimising’ such damage will come into play only when total avoidance is not feasible”.
- 71.
Sandoz et al. 1987, para 2199, p 679.
- 72.
Belt 2000, p 174.
- 73.
- 74.
United Kingdom 2004, para 12.51, p 322. John-Hopkins argues that: “Military superiority will often mean that, as capabilities render more precautions feasible in practice, higher standards of reasonableness become attainable and are thus expected, especially in urban areas […]”, see John-Hopkins 2010, p 478. See also below, Sect. 5.4.3.
- 75.
Bothe et al. 2013, p 405.
- 76.
Rule 15, Henckaerts and Doswald-Beck 2005a, pp 51–55.
- 77.
Ibid.
- 78.
- 79.
ICRC 2010, p 75.
- 80.
- 81.
ICTY 2008, para 50.
- 82.
Dinstein 2010, p 140.
- 83.
See, generally, Pratzner 2016 for a description. There is a different process for deliberate and time-sensitive attacks.
- 84.
Pratzner 2016, pp 79–80.
- 85.
Quéguiner 2006, p 810.
- 86.
Executive Order issued by president Obama on 1 July 2016: “The U.S. Government shall maintain and promote best practices that reduce the likelihood of civilian casualties, take appropriate steps when such casualties occur, and draw lessons from our operations to further enhance the protection of civilians.” The White House (2016) Executive Order – United States Policy on Pre- and Post-Strike Measures to Address Civilian Casualties in U.S. Operations Involving the Use of Force, 1 July 2016. https://obamawhitehouse.archives.gov/the-press-office/2016/07/01/executive-order-united-states-policy-pre-and-post-strike-measures. Accessed 20 April 2018.
- 87.
Eritrea-Ethiopia Claims Commission, Central Front—Ethiopia’s Claim No. 2, Partial Award, 28 April 2004, [2004] Reports of International Arbitral Awards 155, para 110 in which the Commission addressed a violation of Article 57 AP I finding “a lack of essential care in conducting [the bomb runs], compounded by Eritrea’s failure to take appropriate actions afterwards to prevent future recurrence”.
- 88.
See, e.g., ICTY, Appeals Chamber, Prosecutor v Dragoljub Kunarac et al., Judgment, 12 June 2002, Case No. IT-96-23 & 23/1, para 91 in which the Appeals Chamber lists “the extent to which the attacking force may be said to have complied or attempted to comply with the precautionary requirements of the laws of war” as a consideration in the finding of a crime against humanity. This phrase has thereafter been repeated by other ICTY chambers, see ICTY, Trial Chamber, Prosecutor v Stanislav Galić, Judgement, 5 December 2003, Case No. IT-98-29-T, para 142; ICTY, Appeals Chamber, Prosecutor v Stanislav Galić, Judgement, 30 November 2006, Case No. IT-98-29-A, para 349.
- 89.
Rule 16, Henckaerts and Doswald-Beck 2005a, pp 51–55.
- 90.
On the addressees of the precaution obligations, the interpretation of “feasible” and the duties of the commander, see above, Sect. 5.4.1.
- 91.
- 92.
Sandoz et al. 1987, para 2198, p 679. Boothby correctly observes, however, that in case of time sensitive targets, the temporal requirement “in good time” will be difficult to comply with and, thus, that planning is not a requirement, but that the military context is one of the factors determining “the degree to which it is practically possible, and thus feasible, to take these precautions”, see Boothby 2012, p 123.
- 93.
Note, however, that the ICRC Commentary seems to use a standard that requires near certainty if not full certainty as the commander must “in case of doubt, even if there is only slight doubt, […] call for additional information and if need be give orders for further reconnaissance […]”, see Sandoz et al. 1987, para 2195, p 678. As explained, that level of certainty may not be realistic as, e.g., the adversary may lawfully and successfully employ misinformation or deception tactics. This demonstrates the reliance on good faith application of the rule.
- 94.
ICRC 1956, Article 10.
- 95.
AP I, above n 3, Article 51(5)(a); Rule 13, Henckaerts and Doswald-Beck 2005a, pp 43–45.
- 96.
Dinstein 2002, p 215.
- 97.
Ibid., p 215.
- 98.
Sassòli and Quintin 2014, pp 88–89.
- 99.
See AP I, above n 3, Article 57(2)(a)(ii); and Rule 17 in Henckaerts and Doswald-Beck 2005a, pp 56–58: “those who plan or decide upon shall take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects”.
- 100.
AP I, above n 3, Article 57(2)(a)(iii) and the corresponding customary rule dictate that those who plan or decide upon an attack shall “refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.” See also Rule 18 in Henckaerts and Doswald-Beck 2005a, pp 58–60.
- 101.
According to Rogers, the precautionary provisions are “expressed more as an exhortation”, see Rogers 2008, p 189.
- 102.
Federal Political Department 1977, p 181.
- 103.
Rogers 2008, p 191.
- 104.
Gardam 2004, p 96.
- 105.
- 106.
As pointed out above, violations of the duty to take precautionary measures may also be a factor taken into account for the purposes of crimes against humanity. See also Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002), Article 8(2)(b(iv), which criminalises “[i]ntentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.”.
- 107.
Bartels notes, however, that with respect to the war crimes listed in Article 8 of the Rome Statute, “an attack that is launched against a military object within a civilian area, without having taken proper precautions, could also be brought as a crime of directly attacking civilians (Article 8(2)(b)(i)) with the attacker acting with dolus eventualis, as well as under Article 8(2)(b)(iv)”. Bartels 2013, p 298.
- 108.
Rule 19, in Henckaerts and Doswald-Beck 2005a, pp 60–62.
- 109.
Rather, as Henderson points out, the UK meant to declare that the more conservative views of other states, wishing to restrict the authority to apply the obligations of Article 57 AP I at (much) higher level than the individual on a platoon or pilot-level, was inaccurate. Henderson concludes from his own experience that the requirements can also successfully be applied at the level of the single pilot, see Henderson 2009, pp 159–161. On the UK Declaration, see also Sassòli and Quintin 2014, p 105.
- 110.
Henderson 2009, p 182.
- 111.
Sandoz et al. 1987, para 2220, p 686.
- 112.
Ibid., which refers to objects, but the example provided in para 2221 (see below) refers to persons subject to special protection.
- 113.
As the ICRC Commentary states in para 2221: “It is principally by visual means – in particular, by means of aerial observation – that an attacker will find out that an intended objective is not a military objective, or that it is an object entitled to special protection. Thus, to take a simple example, an airman who has received the order to machine-gun troops travelling along a road, and who finds only children going to school, must abstain from attack. However, with the increased range of weapons, particularly in military operations on land, it may happen that the attacker has no direct view of the objective, either because it is very far away, or because the attack takes place at night. In this case, even greater caution is required. However, regardless of the question of whether it is a good idea to take greater caution (which is always a good idea), the question is whether this influences the legal obligations of the person planning or executing an attack”, see Sandoz et al. 1987, p 686.
- 114.
See, e.g., the Israeli Harpy weapons system, “Harpy is a ‘Fire and Forget’ autonomous weapon, launched from a ground vehicle behind the battle zone. The Harpy weapon detects, attacks and destroys enemy radar emitters, hitting them with high hit accuracy. Harpy effectively suppresses hostile SAM and radar sites for long durations, loitering above enemy territory for hours. Harpy is an all-weather day/night system. Harpy is in production, and is operational with several Air Forces.” Israel Aerospace Industries, Harpy NG. http://www.iai.co.il/2013/36694-16153-en/Business_Areas_Land.aspx. Accessed 20 April 2018.
- 115.
See also Henckaerts and Doswald-Beck 2005a, pp 62–65, Rule 20.
- 116.
Ibid. See also Baruch and Neuman 2011, pp 361–362 and accompanying notes, as well as the State practice discussed at pp 364–372.
- 117.
Article 19 of the Lieber Code reads: “Commanders, whenever admissible, inform the enemy of their intention to bombard a place, so that the non-combatants, and especially the women and children, may be removed before the bombardment commences. But it is no infraction of the common law of war to omit to inform the enemy. Surprise may be a necessity”, see Schindler and Toman 2004, p 3.
- 118.
An “assault” must be understood as a “surprise attack”, see Baruch and Neumann 2011, p 388.
- 119.
See also Baruch and Neumann 2011, pp 379–381. Note however the example of Operation Desert Storm, where the attacking forces had succeeded in cutting off all lines of communication between the authorities and the civilian population. In that case, warnings must be conveyed directly to the civilian population, see Henderson 2009, p 188. The May 2015 Report of Israel on the 2014 Gaza Conflict however notes that after warning had been issued through a diversity of means to the civilian population, “the Hamas authorities actively encouraged civilians to ignore the IDF’s warnings and refrain from evacuating”, see State of Israel 2015, p 177.
- 120.
See GC IV, above n 23, Articles 19; AP I, above n 3, Article 13; Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict 1999, opened for signature 17 May 1999, 2253 UNTS 212 (entered into force 9 March 2004), Articles 6(d) and 13(2)(c); Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended on 3 May 1996 (Protocol II, as amended on 3 May 1996) annexed to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects, opened for signature 3 May 1996, 2048 UNTS 93 (entered into force 3 December 1998), Article 6(4).
- 121.
Sandoz et al. 1987, para 2225, p 687.
- 122.
- 123.
General warnings may include radio broadcasts or leaflets with the message for the civilian population to stay away from military objectives. Specific warning may include phone calls. Israel notes in its Report on the 2014 Gaza Conflict that there may be three types of warnings: general warnings, regional warnings and specific warnings, see State of Israel 2015, p 171.
- 124.
Note that in the Gaza Report on the 2014 Gaza Conflict, it is maintained that “[o]nce an effective warning has been given, international law does not require additional warnings.” State of Israel 2015, p 170.
- 125.
John-Hopkins 2010, p 483.
- 126.
Presentation of an expert during the meeting of the ILA Expert Group in November 2013, on file with the authors.
- 127.
Ibid.
- 128.
ILA Study Group on the Conduct of Hostilities 2014, p 26.
- 129.
Baruch and Neumann 2011, p 373.
- 130.
Ibid.
- 131.
- 132.
Watts 2014, p 12.
- 133.
Carnahan 1982, p 866.
- 134.
Henderson 2009, p 187.
- 135.
Baruch and Neumann 2011, p 391.
- 136.
For a description of the practice, see generally, Israel Defense Forces (2014) How is the IDF Minimizing Harm to Civilians in Gaza? https://www.idf.il/en/minisites/hamas/how-is-the-idf-minimizing-harm-to-civilians-in-gaza/. Accessed 20 April 2018. For a discussion of its legality, see Van Den Boogaard 2017, pp 183–209; Blank 2010, pp 298–299; Baruch and Neumann 2011, pp 387–388; Schmitt 2010, p 828; Dill 2014.
- 137.
State of Israel 2015, p 180.
- 138.
See State of Israel 2015, p 180: “In certain instances where warnings were unheeded or unfeasible, the IDF, as a progressive precaution that went beyond the requirements of international law, fired a low-explosive at the target’s roof.”.
- 139.
Henderson 2009, pp 190–192.
- 140.
- 141.
Kalshoven and Zegveld 2011, p 116.
- 142.
Quéguiner 2006, pp 805–806.
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van den Boogaard, J.C., Vermeer, A. (2019). Precautions in Attack and Urban and Siege Warfare. In: Gill, T., McCormack, T., Geiß, R., Krieger, H., Paulussen, C. (eds) Yearbook of International Humanitarian Law, Volume 20, 2017. Yearbook of International Humanitarian Law, vol 20. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-264-4_5
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