ALL FEASIBLE PRECAUTIONS IN THE CHOICE OF MEANS AND METHODS OF WARFARE
B. What does ‘feasible’ mean and how is it translated in practice?
Turning to the second point of this presentation, the definition of the word ‘feasible’, it is important to start from the equally authentic French version of AP I, which refers to ‘toutes les précautions pratiquement possibles’. Along the same lines, according to the Eritrea Ethiopia Claims Commission, ‘[t]he law requires all “feasible” precautions, not precautions that are practically impossible’.15 Protocols II and III of the Certain Conventional Weapons Convention define ‘feasible’ precautions as ‘those precautions which are practicable or practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations’.16 This interpretation has been confirmed by the declarations made by some of the States party to AP I at the time of ratification of the Protocol.17
What does this definition mean exactly? The first element of feasibility is that it is context-dependent. Indeed, there can be no pre-established list of means and methods to be applied in every situation. Means and methods that may be feasible in one context may prove not to be feasible in another. Factors which may be taken into account in determining the feasibility of the use of a specific means or method of warfare include the availability of weapons systems, the type of target, the placement of military objectives in relation to civilians, the enemy
14 W. H. Boothby, The Law of Targeting, OUP, Oxford, 2012, p. 120.
15 Eritrea Ethiopia Claims Commission, Ethiopia’s Claim 2, Central Front, Partial Award, 28 April 2004, paragraph 110.
16 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, Article 3 §10, 2048 UNTS 133, p. 136; Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (protocol III) annexed to the same convention, Article 1§5, 1342 UNTS 171, p. 172.
17 See, for example, the declarations by Belgium, 20 May 1986, available at <https://www.icrc.org/
applic/ihl/ihl.nsf/Notification.xsp?action=openDocument&documentId=EA2560B9B790488EC1256402 003FB2BC>; Canada, 20 November 1990, available at: <https://www.icrc.org/applic/ihl/ihl.nsf/No-tification.xsp?action=openDocument&documentId=172FFEC04ADC80F2C1256402003FB314>; Germany, 14 February 1991, available at: <https://www.icrc.org/applic/ihl/ihl.nsf/Notification.xsp?action=ope nDocument&documentId=3F4D8706B6B7EA40C1256402003FB3C7>; Italy, 27 February 1986, available at: <https://www.icrc.org/applic/ihl/ihl.nsf/Notification.xsp?action=openDocument&documentId=E2F 248CE54CF09B5C1256402003FB443>; Netherlands, 26 June 1987, available at: <https://www.icrc.org/
applic/ihl/ihl.nsf/Notification.xsp?action=openDocument&documentId=E6EF925C67966E90C1256402 003FB532>; Spain, 21 April 1989, available at: <https://www.icrc.org/applic/ihl/ihl.nsf/Notification.
xsp?action=openDocument&documentId=FC622F31C9E2236EC1256402003FB660>.
defences, the weather, the time of day, the standard of technical training of combatants, force protection, etc.18 In this respect, the UK Military Manual gives an illuminating list of factors:
‘In considering the means and methods of attack to be used, the commander should have regard to the following factors:
a. the importance of the target and the urgency of the situation;
b. intelligence about the proposed target – what it is being, or will be, used for and when;
c. the characteristics of the target itself, for example, whether it houses dangerous forces;
d. what weapons are available, their range, accuracy, and radius of effect;
e. conditions affecting the accuracy of targeting, such as terrain, weather, and time of day;
f. factors affecting incidental loss or damage, such as the proximity of civilians or civilian objects in the vicinity of the target or other protected objects or zones and whether they are inhabited, or the possible release of hazardous substances as a result of the attack;
g. the risks to his own troops of the various options open to him.’19
As for the ‘circumstances ruling at the time’ which need to be taken into account in the deter-mination of feasibility, Article 3 paragraph 10 of Protocol II on Mines, Booby-Traps and other Devises as amended on 3 May 1996 stipulates that:
‘[t]hese circumstances include, but are not limited to:
(a) the short – and long – term effects of mines upon the local civilian population for the duration of the minefield;
(b) possible measures to protect civilians (for example, fencing, signs, warning and monitoring);
(c) the availability and feasibility of using alternatives; and
(d) the short – and long – term military requirements for a minefield.’20
It has also been suggested that, while not justifying disrespect for the obligations set out in Article 57 of AP I, the violation of the obligations imposed on the Party subject to an attack (set out in Article 58 AP I) may affect what is feasible in a given situation.21 Finally, in accor-dance with the statements of several States party to AP I, the circumstances are appreciated
18 M. N. Schmitt, “Targeting in Operational Law”, in: T. D. Gill and D. Fleck (eds.), The Handbook of the International Law of Military Operations, OUP, Oxford, 2010, p. 260.
19 UK Manual, op cit., note 12, p. 83-84, paragraph 5.32.5.
20 Protocol II, as amended on 3 May 1996, op. cit., note 15, p. 136.
21 Henderson, op. cit., note 8, p. 174.
on the basis of the information from all sources which were available to the person planning or deciding the attack at the time he/she made the decision.22
The obligation to take all feasible precautions in order to avoid or minimise collateral damage covers both the choice of means of warfare and the way they will be used on the battlefield.
This involves a series of decisions bearing on the choice of a specific weapon type in view of its characteristics,23 the way in which the weapon will be deployed on the target, the system of guidance and control, the timing of the attack, the choice of the target, the angle of ap-proach, the explosive fill of munitions, fusing arrangements, etc. As it has been correctly asserted, allowance should be made for what might happen, and not just for the best case scenario: if certain types of guided munitions tend on average to fall short rather than go long, then this should be factored into the planning process and the attack route chosen should aim at minimising collateral damage if the weapon should fall short.24 For example, in the 1999 NATO bombing campaign in Kosovo, it is reported that the target assessment made by the Joint Staff’s intelligence division included consideration of outliers, ‘the potential for a bomb or missile to miss its target (…) This assessment [of outliers] was particularly important where there was a heavy built-up area with large urban structures around the target. There is a greater risk of outliers in these situations.’25
Concrete examples of implementing the obligation set out in Article 57(2)(a)(ii) include the use of lasers to designate targets and then launch an attack by laser-guided bombs,26 bomb-ing at night, usbomb-ing penetrator munitions and delayed fuse bombs27 in order to ensure that the damage from blast and fragmentation is kept within the impact area, using attack angles
22 See for example, the declarations by Austria (13 August 1982, available at: <https://www.icrc.org/
applic/ihl/ihl.nsf/Notification.xsp?action=openDocument&documentId=C5CD201B43C3E56AC1256402 003FB262>), Belgium (op. cit.), Germany (op. cit.), Egypt (9 October 1992, available at: <https://
www.icrc.org/applic/ihl/ihl.nsf/Notification.xsp?action=openDocument&documentId=AF3791A0FF16 7FFDC1256402003FB393>), Netherlands (op. cit.), Italy (op. cit.), Ireland (19 May 1999, available at: <https://www.icrc.org/applic/ihl/ihl.nsf/Notification.xsp?action=openDocument&documentId=27 BBCD34A4918BFBC1256402003FB43A>); Canada (op. cit.), Spain (op. cit.), New Zealand, 8 February 1988, available at: <https://www.icrc.org/applic/ihl/ihl.nsf/Notification.xsp?action=openDocument&
documentId=8FEC3861203ABE21C1256402003FB53B>.
23 For example, a direct fire weapon (rifle / wire-guided anti-tank missile) is less likely to cause inciden-tal damage than indirect fire weapons (mortar or artillery rounds), and free fall bombs, unless dropped at a very low altitude, are less likely to hit a narrowly defined target than laser-guided bombs; see UK Manual, op. cit., note 12, p. 83, paragraph 5.32.4.
24 Henderson, op. cit., note 8, p. 170.
25 G. D. Solis, The Law of Armed Conflict, CUP, Cambridge, 2010, p. 533.
26 This method was employed in the 1991 Gulf War; UK Manual, op. cit., p. 83, note 204.
27 Bombs that have a fuse set to detonate some milliseconds after impact are likely to produce less fragmentation problems than the same bomb designed to explode on impact or just prior to impact.
that take into account the location of civilian facilities, etc.28 The methodologies developed by armed forces in order to evaluate collateral damage, including tools such as minimum safe distances, after-action reports and lessons-learnt procedures, are also relevant in minimising collateral damage. Some forces have developed ‘computer modelling to determine the weapon, fuse, attack, angle, and time of day that will ensure maximum effect on targets with minimum civilian casualties.’29 In the 1999 NATO airstrikes in Kosovo, ‘[t]he intense concern over the issue of collateral damage (…) meant that only a certain type of ammunitions could be used or the target could only be attacked at certain times of day.’30
Naturally, respect for the obligation to take all feasible precautions in order to minimise col-lateral damage becomes much more important in urban warfare. During the 1991 Gulf War, in setting up the master attack list for the city of Baghdad, a six-mile area around each target was scanned for schools, hospitals, and mosques in order to identify those targets where ex-treme care was required.31 Also, ‘attacks on known dual (i.e., military and civilian) use facili-ties normally were scheduled at night, because fewer people would be inside or on the streets outside.’32 According to the UK military manual:
‘[s]ometimes, especially during fighting in towns, the tactics employed can make a great difference to the control of incidental damage. Artillery fire can cause a lot of incidental damage without any appreciable military advantage. The same military advantage might be just as well achieved by manoeuvre, outflanking or by-passing the objective, rather than direct assault.’33
Aside from these considerations, one of the most salient questions relating to the conduct of urban warfare is whether the rule contained in Article 57(2)(a)(ii) entails a prohibition to use explosive munitions in densely populated areas and an obligation to use precision-guided mu-nitions instead. It is to this question that I will turn to in the final part of this presentation.
28 These methods were used by the coalition forces during the 2003 war in Iraq.
29 Solis, op. cit., note 24, p. 532.
30 T. Montgomery, “Legal Perspective from the EUCOM Targeting Cell”, in A. E. Wall (ed.), Legal and Ethi-cal Lessons of NATO’s Kosovo Campaign, International Law Studies, vol. 78, Naval War College, Newport, Rhode Island, 2002, p. 195.
31 US Department of Defense, Conduct of the Persian Gulf War: Final Report to Congress, April 1992, p. 153, available at: <http://www.ssi.army.mil/!Library/Desert%20Shield-Desert%20Storm%20Battle%20 Analysis/Conduct%20of%20the%20Persian%20Gulf%20War%20-%20Final%20Rpt%20to%20Congress.
pdf>.
32 Ibid.
33 UK Manual, op. cit., note 12, p. 83, §5.32.4.