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Knock on the Roof: Legitimate Warning or Method of Warfare?

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Yearbook of International Humanitarian Law Volume 19, 2016

Part of the book series: Yearbook of International Humanitarian Law ((YIHL,volume 19))

Abstract

This chapter aims to address the practice of using a “knock on the roof” as a warning before air strikes are launched in order to mitigate civilian casualties during armed conflict. It involves the dropping of non-explosive or low-impact type of munitions on the intended target. This “knock” is reportedly accompanied by other specific warnings, such as telephone calls and text-messages, indicating that the attack on the building is imminent. The knock is intended to be used on a legitimate military objective, leaving no doubt that the attack is in fact about to happen, and urging civilians to relocate to a safer place. This chapter aims to analyse whether, and if so, under which circumstances, the knock on the roof practice may be used within the boundaries of international humanitarian law (IHL), both as a warning and as a method of warfare.

Jeroen C. van den Boogaard works as an assistant professor of military law at the Netherlands Defence Academy and as a lecturer and researcher at the University of Amsterdam. The author wishes to thank Arjen Vermeer, Sandra Krähenmann, Rogier Bartels and Sigrid Redse Johansen as well as the anonymous reviewers for their valuable comments on an earlier draft. Further comments are welcome via j.c.vandenboogaard@uva.nl. All usual caveats apply.

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Notes

  1. 1.

    Article 57 of the 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 1979) (AP I). The duty to take precautionary measures applies for the most part equally to both international and non-international armed conflicts as a matter of customary international humanitarian law. See Henckaerts and Doswald-Beck 2005, pp. 55–67, Rules 15–21. Note however that according to the ICRC, Rule 21, which is the equivalent to Article 57(3) AP I, only arguably applies to non-international armed conflicts (“When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected must be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects”). ICRC Customary IHL Database (2016) Rule 21. Target Selection. https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule21. Accessed 3 July 2017 (emphasis added).

  2. 2.

    See for example IDF (2014) How is the IDF Minimizing Harm to Civilians in Gaza. http://www.idfblog.com/blog/2014/07/16/idf-done-minimize-harm-civilians-gaza/. Accessed 23 December 2016. According to US Air Force major General Peter Gersten, a hellfire missile was used by US forces in an attack against Daesh in a manner that “it wouldn’t destroy the building, simply knock on the roof to ensure that [civilians] were out of the building”. See also Torbati Y and Ali I (2016) U.S. military used “roof knock” tactic in Iraq to try to warn civilians before bombing. www.reuters.com/article/us-mideast-crisis-usa-airstrike-idUSKCN0XN2NK. Accessed 23 December 2016.

  3. 3.

    See for example IDF (2014) How is the IDF Minimizing Harm to Civilians in Gaza. http://www.idfblog.com/blog/2014/07/16/idf-done-minimize-harm-civilians-gaza/. Accessed 23 December 2016. See also Independent (2014) Israel-Gaza conflict: Israeli “knock on roof” missile warning revealed in remarkable video. http://www.independent.co.uk/news/world/middle-east/israel-gaza-conflict-israeli-knock-on-roof-missile-warning-technique-revealed-in-stunning-video-9603179.html. Accessed 23 December 2016.

  4. 4.

    See for example Reuters (2016) U.S. military used “roof knock” tactic in Iraq to try to warn civilians before bombing. www.reuters.com/article/us-mideast-crisis-usa-airstrike-idUSKCN0XN2NK. Accessed 23 December 2016.

  5. 5.

    State of Israel 2015 (Israeli Report on the 2014 Gaza War).

  6. 6.

    The Netherlands does not use the knock on the roof procedure, but the Minister of Foreign Affairs of the Kingdom of the Netherlands wrote to the Parliament of the Netherlands on 4 July 2016 that “the ‘knock on the roof’ method is in accordance with IHL when it complies with the requirements of precautionary measures and its use poses no danger to the civilian population. Whether a specific use of the method complies with IHL needs to be determined on the basis of the specific circumstances ruling at the time and the way it is used. It is therefore impossible to provide a definite assessment of the legality of the use of this method.” See Minister of Foreign Affairs of the Kingdom of the Netherlands (2016) Letter to the Parliament, no. DVB/CV-106/16.

  7. 7.

    Schmitt 2010, p. 829, arguing that any type of attacks, including the knock, on military objectives is permitted under IHL. In their elaborate analysis of the warning obligations during armed conflict, Baruch and Neuman conclude that the knock on the roof warnings are legitimate as warning shots and “it is incorrect to view them as an attack ‘against civilians’, because they are not fired at civilians, since the objective of their use is to avoid harm to civilians.” See Baruch and Neuman 2011, p. 388.

  8. 8.

    See for example Mahmoud Abu Rahma of the Gaza based Al Mezan Center for Human Rights: “Imagine you are in Gaza and there are airstrikes everywhere, and many families are in the bottom floor of their home […] Families miss the sound of the ‘warning’ missile because it sounds like just another explosion.” Lister T and Abdelaziz S (2014) Israeli military’s “knock on roof” warnings criticized by rights groups. http://edition.cnn.com/2014/07/15/world/meast/mideast-israel-strike-warnings/. Accessed 23 December 2016.

  9. 9.

    United Nations General Assembly 2009 (The Goldstone Report).

  10. 10.

    United Nations General Assembly 2009 (The Goldstone Report), para 533; see also Dill J (2014) Guest Post: Israel’s Use of Law and Warnings in Gaza. http://opiniojuris.org/2014/07/30/guest-post-israels-use-law-warnings-gaza/. Accessed 23 December 2016.

  11. 11.

    Amnesty International stated that it has “documented cases of civilians killed or injured by such missiles [used for knocking on the roof] in previous Israeli military operations on the Gaza Strip”. Amnesty International UK (2014) Israel/Gaza: UN must impose arms embargo as civilian death toll rises. https://www.amnesty.org.uk/press-releases/israelgaza-un-must-impose-arms-embargo-civilian-death-toll-rises. Accessed 23 December 2016.

  12. 12.

    See for example Pratzner 2016 for a description of a targeting procedure, pp. 77–97.

  13. 13.

    See generally Quéguiner 2006; Baruch and Neuman 2011; Corn 2015; Sassòli and Quintin 2014; and Henderson 2009, pp. 157–196.

  14. 14.

    Article 48 AP I, above n 1; and Customary IHL Rule 1, Henckaerts and Doswald-Beck 2005, pp. 3–8.

  15. 15.

    Article 57(1) AP I, above n 1; and Customary IHL Rule 15, Henckaerts and Doswald-Beck 2005, pp. 51–55.

  16. 16.

    Articles 51(5)(b), 57(2)(a)(iii) and 57(2)(b) AP I, above n 1; and Customary IHL Rule 14, Henckaerts and Doswald-Beck 2005, pp. 46–50; see also generally Watkin 2005. A thorough analysis of the IHL proportionality rule is outside the scope of this chapter.

  17. 17.

    Customary IHL Rule 20 similarly states that “Each party to the conflict must give effective advance warning of attacks which may affect the civilian population, unless circumstances do not permit.” See Henckaerts and Doswald-Beck 2005, pp. 62–65.

  18. 18.

    Gaughan 2015 notes: “Prior to D-Day, Allied planes dropped leaflets to warn French civilians to move at least two kilometres away from the railway centers that the American and British bombers targeted. One leaflet specifically advised: ‘Move away as much as possible from ironworks, railway stations, junctions, train depots, repair shops.’” See Gaughan 2015, p. 269 (footnotes omitted).

  19. 19.

    Article 58 AP I, above n 1; and Customary IHL Rules 22–24, Henckaerts and Doswald-Beck 2005, pp. 68–76; see also Sassòli and Quintin 2014, pp. 112–122; and Jensen 2016, pp. 147–175.

  20. 20.

    Sassòli and Quintin 2014, p. 117.

  21. 21.

    For example: military (Article 21 of 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); and civilian (Article 19 of 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) and 13(1) AP I, above n 1) medical establishments and units if these are used to commit, outside their humanitarian duties, acts harmful to the enemy and civil defence facilities and personnel (Article 65(1) AP I, above n 1).

  22. 22.

    Sandoz et al. 1987, para 2225 (p. 687).

  23. 23.

    HPCR 2013, p. 133 (Commentary); see also Baruch and Neuman 2011, pp. 374–375; and State of Israel 2015, p. 170.

  24. 24.

    UK Ministry of Defence 2004, p. 84.

  25. 25.

    Ibid.: “[t]o be effective the warning must be in time and sufficiently specific and comprehensible”.

  26. 26.

    See for example the Israel 2014 Gaza War Report, in which it is maintained that “[o]nce an effective warning has been given, international law does not require additional warnings.” State of Israel 2015.

  27. 27.

    This follows from the general obligation of Article 57(1) AP I, above n 1, to take constant care, that continues to apply.

  28. 28.

    Dill states that “[t]he law recognizes that sometimes it may not be possible to warn. Crucially the provision does not say ‘warn if possible’, but ‘warn unless impossible’. It is open to interpretation when that is the case and reasonable people may disagree, but the default is to issue a warning and it is a failure to do so that requires explanation. Warnings are not acts of charity.” See Dill J (2014) Guest Post: Israel’s Use of Law and Warnings in Gaza. http://opiniojuris.org/2014/07/30/guest-post-israels-use-law-warnings-gaza/. Accessed 23 December 2016.

  29. 29.

    Carnahan 1982, p. 866.

  30. 30.

    Articles 51(5)(b), 57(2)(a)(iii) and 57(2)(b) AP I, above n 1.

  31. 31.

    Baruch and Neuman therefore see a warning as a “useful tool in the hands of commanders for gaining more freedom of action.” See Baruch and Neuman 2011, p. 373.

  32. 32.

    See also Corn 2014, p. 16: “The feasibility for issuing warnings prior to attack, to include when, how, and to whom, should be factored into all courses of action, and not just raised as a consideration after they have been developed.”.

  33. 33.

    See Torbati Y and Ali I (2016) U.S. military used “rock knock” tactic in Iraq to try to warn civilians before bombing. www.reuters.com/article/us-mideast-crisis-usa-airstrike-idUSKCN0XN2NK. Accessed 23 December 2016.

  34. 34.

    Major General Dan Efroni, the IDF Military Advocate General, states with regard to the knock on the roof procedure that “our colleagues overseas have criticized [the IDF] for implementing precautionary measures that exceed the requirements of international law, and risk forming opinions that such practices are customary law or accepted practice, thereby raising the threshold of the required precautionary measures by others states.” See Efroni 2014, p. 82; see also 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.”

  35. 35.

    Dill claims that the practice is consistently ineffective, even counter-productive, referring to Amnesty International, Human Rights Watch and the United Nations. Dill J (2014) Guest Post: Israel’s Use of Law and Warnings in Gaza. http://opiniojuris.org/2014/07/30/guest-post-israels-use-law-warnings-gaza/. Accessed 23 December 2016. However, according to a former head of the Legal Service of the IDF, the knock on the roof method was used more than 200 times during operation Cast Lead in 2008–2009 in Gaza, and he claimed that the method was effective every time it was used. See Van den Boogaard 2011, p. 265. In addition, Israel stated in the 2014 Gaza War Report that “the employment of ‘roof-knocking’ was highly effective, preventing many civilian injuries and deaths”. See State of Israel 2015, p. 180; see also the Report of the High Level Military Group: “the IDF has further developed a unique tactical innovation aimed at the preservation of innocent life, which to our knowledge is unprecedented in warfare, the ‘knock on the roof’ procedure. Given the extensive nature of the IDF’s warning protocol, the clear evidence that it has saved lives, and the tactical innovation brought to bear in doing so - which exceeds our own armies’ current practices - we are concerned about recent attempts on the basis of incorrect legal interpretations to discredit Israel’s practices in this regard.” See High Level Military Group (HLMG) 2015.

  36. 36.

    The Israel 2014 Gaza War Report notes that “the IDF did not regard civilians who heeded [warnings] as voluntary human shields and thus legitimate targets for attack. Nor did the IDF discount such civilians for purposes of its proportionality analyses.” See State of Israel 2015, p. 177.

  37. 37.

    See for example Mahmoud Abu Rahma of the Gaza-based Al Mezan Center for Human Rights: “Imagine you are in Gaza and there are airstrikes everywhere, and many families are in the bottom floor of their home […] Families miss the sound of the ‘warning’ missile because it sounds like just another explosion.” Lister T and Abdelaziz S (2014) Israeli military’s “knock on roof” warnings criticized by rights groups. http://edition.cnn.com/2014/07/15/world/meast/mideast-israel-strike-warnings/. Accessed 23 December 2016.

  38. 38.

    “‘In some but not all cases, families receive telephone calls from the Israeli military in advance,’ said Philip Luther, Middle East and North Africa Director at Amnesty International.” Ibid.

  39. 39.

    The Goldstone report notes in para 533: “The technique of using small explosives to frighten civilians into evacuation, even if the intent is to warn, may cause terror and confuse the affected civilians.” United Nations General Assembly 2009, para 533; see also Dill J (2014) Guest Post: Israel’s Use of Law and Warnings in Gaza. http://opiniojuris.org/2014/07/30/guest-post-israels-use-law-warnings-gaza/. Accessed 23 December 2016.

  40. 40.

    Article 51(2) AP I, above n 1, second sentence reads: “Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.”.

  41. 41.

    See Dill J (2014) Guest Post: Israel’s Use of Law and Warnings in Gaza. http://opiniojuris.org/2014/07/30/guest-post-israels-use-law-warnings-gaza/. Accessed 23 December 2016.

  42. 42.

    See also Baruch and Neuman 2011, pp. 375–377.

  43. 43.

    As the ICRC Commentary on AP I notes: “there is no doubt that acts of violence related to a state of war almost always give rise to some degree of terror among the population and sometimes also among the armed forces. It also happens that attacks on armed forces are purposely conducted brutally in order to intimidate the enemy soldiers and persuade them to surrender. This is not the sort of terror envisaged here.” See Sandoz et al. 1987, para 1940 (p. 618). This is confirmed by the International Criminal Tribunal for the former Yugoslavia (ICTY); see ICTY, Prosecutor v Dragomir Milosevic, Judgment, 12 December 2007, Case No. IT-98-29/1, para 888: “to constitute terror, an intent to instil fear beyond this level is required.”

  44. 44.

    Baruch and Neuman 2011, p. 377: “there are cases where decisions change for different reasons, including operational, policy and humanitarian considerations.”

  45. 45.

    Sassòli and Quintin 2014, p. 108.

  46. 46.

    Article 49(1) AP I, above n 1, defines “attacks” as “acts of violence against the adversary, whether in offence or in defence.” See Sect. 7.4 below for a more thorough analysis of the term ‘attack’ within the framework of IHL.

  47. 47.

    United Nations General Assembly 2009 (The Goldstone Report), para 541.

  48. 48.

    Mahmoud Abu Rahma, in Lister T and Abdelaziz S (2014) Israeli military’s “knock on roof” warnings criticized by rights groups. http://edition.cnn.com/2014/07/15/world/meast/mideast-israel-strike-warnings/. Accessed 23 December 2016.

  49. 49.

    HPCR 2013, p. 133 (Commentary). The Commentary however states that this may be done in some situations where this is the only feasible method of warning.

  50. 50.

    For a view that “warnings are not attacks”, see Sassòli and Quintin 2014, p. 109.

  51. 51.

    See for example the Allegation Concerning the Deaths of Members of the Abu Itta Family in Tel Al-Za’atar: “a warning strike was executed on the roof of the building in which the weapons cache was located […] as part of the ‘knock on the roof’ procedure.” IDF MAG Corps (2014) Operation Protective Edge: Examinations and Investigation, Update no. 3. http://www.law.idf.il/1007-en/Patzar.aspx. Accessed 23 December 2016.

  52. 52.

    Lister T and Abdelaziz S (2014) Israeli military’s ‘knock on roof’ warnings criticized by rights groups. http://edition.cnn.com/2014/07/15/world/meast/mideast-israel-strike-warnings/. Accessed 23 December 2016.

  53. 53.

    The Israel 2014 Gaza War Report refers on p. 158 to “a residential home regularly being used as an operational planning site” as a military objective, and cites the house of Yehya Sinwar as an example (p. 161). State of Israel 2015, p. 158 and 161.

  54. 54.

    See possibly the “Allegation Concerning the Death of Kaware Family Members in Khan Yunis (8 July 2014)”. The IDF has identified the Kaware house as a military objective, although it is not clear on which grounds. IDF MAG Corps (2014) Operation Protective Edge: Examinations and Investigation, Update no. 2 & 3. http://www.law.idf.il/1007-en/Patzar.aspx. Accessed 23 December 2016. See also the discussion by Schmitt and Merriam of the attacks on the homes of Hamas leaders, Schmitt and Merriam 2015, p. 212.

  55. 55.

    See for example the Allegation Concerning the Deaths of Members of the Abu Itta Family in Tel Al-Za’atar: “a warning strike was executed on the roof of the building in which the weapons cache was located, as well as on the roof of the adjoining building which was expected to be significantly impacted as a result of the strike, as part of the ‘knock on the roof’ procedure.” IDF MAG Corps (2014) Operation Protective Edge: Examinations and Investigation, Update no. 3. http://www.law.idf.il/1007-en/Patzar.aspx. Accessed 23 December 2016 (emphasis added).

  56. 56.

    Assuming the knock qualifies as an attack as defined under IHL, see Sect. 7.4.

  57. 57.

    See State of Israel 2015, p. 180.

  58. 58.

    Article 57(2)(a)(ii) AP I, above n 1; and Customary IHL Rule 17, Henckaerts and Doswald-Beck 2005, pp. 56–58.

  59. 59.

    Article 35(1) AP I, above n 1.

  60. 60.

    Article 36 AP I, above n 1. Although it is unclear whether this rule constitutes customary IHL, the principle that both new weapons and methods of warfare must adhere to the existing IHL obligations and restrictions of the parties to an armed conflict is undisputed. It results from the “general application of good-faith treaty adherence”. See Parks 2005, p. 57. Furthermore, the ICRC is of the opinion that “[p]arties to an armed conflict are limited in their choice of weapons, and in the means and methods of warfare they use, by the rules of international humanitarian law […] and] [a]t the 28th International Conference of the Red Cross and Red Crescent, States party to the Geneva Conventions declared that ‘in light of the rapid development of weapons technology and in order to protect civilians from the indiscriminate effects of weapons and combatants from unnecessary suffering and prohibited weapons, all new weapons, means and methods of warfare should be subject to rigorous and multidisciplinary review.’” See ICRC (2011) Review of new weapons. https://www.icrc.org/en/document/review-new-weapons. Accessed 23 December 2016.

  61. 61.

    See Article 57(5) AP I, above n 1. According to the ICRC Commentary to this provision, it is “possibly self-evident [and] […] a confirmation. The law relating to the conduct of hostilities is primarily a law of prohibition: it does not authorize, but prohibits certain things. However, in view of the wording of some of the provisions of this article which take into account military necessity, it is understandable that the Diplomatic Conference wished to stress that these provisions may not be construed so as to a justify attacks against the civilian population.” See Sandoz et al. 1987, para 2238 (p. 689).

  62. 62.

    According to Sassòli and Quintin: “as warnings are not attacks, they may be directed at the morale of the civilian population.” See Sassòli and Quintin 2014, p. 109.

  63. 63.

    Sandoz et al. 1987, p. 1880.

  64. 64.

    One could argue that the knock is directed to a safe direction, but it is submitted that the launch of a projectile on a civilian object, such as the knock on the roof, can under no circumstances be understood as a safe direction. This is confirmed by the finding of a spokesman of Amnesty International that the munitions used for the knock have caused civilian casualties; Amnesty International stated that it has “documented cases of civilians killed or injured by such missiles [used for knocking on the roof] in previous Israeli military operations on the Gaza Strip”. Amnesty International UK (2014) Israel/Gaza: UN must impose arms embargo as civilian death toll rises. https://www.amnesty.org.uk/press-releases/israelgaza-un-must-impose-arms-embargo-civilian-death-toll-rises. Accessed 23 December 2016.

  65. 65.

    Article 48 AP I, above n 1.

  66. 66.

    The IDF report notes that knocks would be directed “at the target’s roof”, see State of Israel 2015, p. 180. However, knocks have also been launched at civilian houses located next to military objectives. See the Allegation Concerning the Deaths of Members of the Abu Itta Family in Tel Al-Za’atar: “a warning strike was executed on the roof of the building in which the weapons cache was located, as well as on the roof of the adjoining building which was expected to be significantly impacted as a result of the strike, as part of the ‘knock on the roof’ procedure.” IDF MAG Corps, Operation Protective Edge: Examinations and Investigation, Update no. 3. http://www.law.idf.il/1007-en/Patzar.aspx. Accessed 23 December 2016 (emphasis added).

  67. 67.

    Article 31(1) of the Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) (VCLT).

  68. 68.

    See generally Shelton 2003, pp. 145–172; see also International Law Commission 2006.

  69. 69.

    See for example the Constitutional Court of Columbia in 2007 (Constitutional Case No. C-291/07) as presented by the ICRC in the online ICRC database of State practice of the ICRC customary IHL study: “parties to a conflict are bound to make every effort to distinguish between military objectives and […] civilian property. This rule is found in international treaties applicable in internal armed conflicts and is binding on Colombia. It forms part of customary international humanitarian law and has attained ius cogens status”. ICRC Customary IHL Database (2016) Colombia – Practice relating to Rule 7. The principle of Distinction between Objects and Military Objectives. https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_cou_co_rule7. Accessed 23 December 2016 (italics in original).

  70. 70.

    Watkin 2005, p. 13: “[IHL] can be interpreted to place a higher premium on life than on the damage or destruction to ‘objects’.”

  71. 71.

    Article 57(2)(a)(ii) AP I, above n 1.

  72. 72.

    Milanovic 2009, p. 73: “An apparent conflict is one where the content of the two norms is at first glance contradictory, yet the conflict can be avoided, most often by interpretative means.”

  73. 73.

    The ILC Fragmentation Report calls this to attach relative priority to one rule (the duty to warn) over the other (the prohibition to attack civilian objects), allowing the former to be “set aside only temporarily [allowing it] to influence [the latter] ‘from the background’”, see International Law Commission 2006, p. 16.

  74. 74.

    Van den Boogaard 2013, pp. 25–26.

  75. 75.

    Kleffner 2016, p. 75.

  76. 76.

    For a discussion of the notion of military objectives, see generally Jachec-Neale 2015.

  77. 77.

    Article 52(2) AP I, above n 1 (emphasis added).

  78. 78.

    See Baruch and Neuman 2011, p. 387.

  79. 79.

    For example, Article 2 of the Hague Convention (IX) concerning Bombardment by Naval Forces in Time of War, opened for signature 18 October 1907, 36 Stat. 2351 (entered into force 26 January 1910), already obliged the commander of a warship to “take all due measures in order that the town may suffer as little harm as possible”. Schindler and Toman 2004, p. 1079. See also Article 34(1) of 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) (GCII): “The protection to which hospital ships and sick-bays are entitled shall not cease unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy. Protection may, however, cease only after due warning has been given […]”.

  80. 80.

    Allen 2005, p. 133.

  81. 81.

    Ibid.

  82. 82.

    See Baruch and Neuman 2011, p. 387.

  83. 83.

    Conducting a prima facie illegal, minor initial attack like the knock may however not be used with a different purpose, such as a ruse of war. See for example Baruch and Neuman 2011, pp. 376–377.

  84. 84.

    Milanovic 2009, p. 73: “resolution requires one conflicting norm to prevail or have priority over another”.

  85. 85.

    International Law Commission 2006, p. 16.

  86. 86.

    Pouw 2013, p. 130: “The maxim lex specialis derogat lex generali is a historically deeply rooted and nowadays commonly accepted mechanism to regulate normative relationships of two norms being simultaneously valid and applicable to the same subject matter. In its traditional meaning, the lex specialis principle entails that in situations of simultaneous applicability of two norms to a similar factual situation, the more specific norm is awarded priority over the norm that is more general.”.

  87. 87.

    International Law Commission 2006, p. 35.

  88. 88.

    Kleffner 2016, p. 75.

  89. 89.

    According to Schmitt: “Although carte blanche deviation from established legal norms based on military necessity is impermissible, the balancing of necessity and humanity pervades contemporary international law in both a general and a specific sense. See Schmitt 2010, p. 798.

  90. 90.

    Van den Boogaard 2013, p. 26.

  91. 91.

    Schmitt 2010.

  92. 92.

    Van den Boogaard 2013, pp. 25–26.

  93. 93.

    Schmitt 2010, p. 798. See Hayashi 2016, p. 105, who notes that based on the character of the underlying notion of humanity, that “affirmative aspects of humanity and chivalry may survive the process of [IHL] norm-creation and operate as additional layers of lawfulness determination over positive [IHL rules].” And that this is not the case for military necessity.

  94. 94.

    Baruch and Neuman 2011, p. 395: “successful warnings that lead to most civilians leaving a combat area do allow military forces more freedom of action in the knowledge that less civilian collateral damage is expected.”.

  95. 95.

    Watkin 2005, p. 13.

  96. 96.

    See Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) (Rome Statute); the relevant crimes are codified in Articles 8(2)(b)(ii) for IACs and 8(2)(e)(ii) for NIACs.

  97. 97.

    Ibid., Articles 30 and 32.

  98. 98.

    See for example the Goldstone Report, United Nations General Assembly 2009, paras 439–498 (pp. 111–124). Furthermore, Jensen points to the possibilities modern technologies provide to defenders in order to comply with their part of the “shared” responsibility to protect civilians during armed conflict. See Jensen, p. 174.

  99. 99.

    The only armed forces that have used the knock on the roof procedure on a substantial number of occasions, the IDF, have reported that a large number of different precautions were taken during the armed conflicts in Gaza and that the knock on the roof procedure was effective in saving civilian lives. See State of Israel 2015, p. 178.

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Authors and Affiliations

  1. Netherlands Defence Academy, University of Amsterdam, Amsterdam, The Netherlands

    Jeroen C. van den Boogaard

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  1. Jeroen C. van den Boogaard
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  1. Criminal Law Section, Section Military Law, University of Amsterdam, Amsterdam, The Netherlands

    Terry D. Gill

  2. Melbourne Law School, Carlton, Victoria, Australia

    Tim McCormack

  3. School of Law, University of Glasgow, Glasgow, United Kingdom

    Robin Geiß

  4. Department of Law/Public Law, Free University of Berlin, Berlin, Germany

    Heike Krieger

  5. Research Department, T.M.C. Asser Instituut, The Hague, The Netherlands

    Christophe Paulussen

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van den Boogaard, J.C. (2018). Knock on the Roof: Legitimate Warning or Method of Warfare?. In: Gill, T., McCormack, T., Geiß, R., Krieger, H., Paulussen, C. (eds) Yearbook of International Humanitarian Law Volume 19, 2016. Yearbook of International Humanitarian Law, vol 19. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-213-2_7

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