First, technology does improve the ability to communicate – for military forces, armed groups, and for civilians themselves. That in itself may change the nature, in some cases, of warnings.
As I said, I think it narrows some of the exceptions from when warnings should be considered as impossible, particularly for armed groups. But the other danger would be if new technolo-gies become the aim in themselves, i.e. considering that putting a message on social media would constitute an effective warning. The situation at a particular time must be evaluated, especially in situations of urban conflicts: what if the electricity is cut off or if the civilian population does not have access to social media because phones cannot be charged? Parties must create a communication that will be effective, but communicate in a way that will also be understood.
The second issue to be considered is the following: how would warnings apply to a use of drones, or any so-called new technologies targeting outside a battlefield? The use of drones
outside a battlefield may raise many legal concerns apart from warnings, including when the arguments about the legality of any attack and what law applies are blurred between what is a conflict and what is not a conflict. If drones and other new technologies are used to attack in the middle of a clear conflict, on the battlefield, the same issue about warnings arises as before. There are specific concerns regarding warnings if the law of armed conflict is being ap-plied in situations of targeted killing a long way from a battlefield: on the one hand, it might be a classic case of where surprise is needed if a specific individual is targeted, but on the other hand, the attack might take place in an area where civilians would have no warning that an attack is coming. If we consider that the technology exists to carry out targeted killings, the technology could also play an important role in delivering clear warnings. But exactly what type of warnings would be needed in such cases? For example, when some individuals are being targeted and are named in advance by some countries, this cannot in itself constitute effective warning of civilians because it is not clear where the attack will take place. The use of drones and other technology for such targeted killings may turn out to be an important threat to warnings because it could be that States will argue that warnings would never be practicable in such situations.
Last but not least, is the issue of making warnings ‘more effective’, because of improving tech-nology, knowledge and the ability to communicate with the civilian populations during armed conflicts and afterwards. We can begin to find out much more about what makes a warning effective. Different methods are being developed, but it is important to make sure that we all continue to research and assess whether a given warning was effective. Was it understood? Did the civilian population take measures in response? Were these measures effective in protecting them? It is our role, as Non-Governmental Organisations (NGOs), military or other academic groups to work further together on this topic.
SESSION 2 – PRECAUTIONS WHEN CARRYING OUT ATTACKS IN CITIES
Following these two presentations, the audience raised questions on the following main is-sues:
1. Proportionality in attack and avoidance or minimisation of inciden-tal damage
One of the participants made a comment about the fact that we have proportionality on the one hand, and we have to minimise damage in the other hand. Proportionality is not a fea-sible precaution. For instance, proportionality is an absolute criterion, which when you have precise weapons, they may give you an advantage. Indeed, if you can reach your objective by destroying a room in a building, it will be proportionate, but if you destroy the build-ing, it will naturally not be proportionate. In the end, you may have an advantage if you have precise weapons, because you will be able to reach an objective, in accordance with the principle of proportionality, that you could not reach otherwise. Even if the principle of proportionality is respected, you will have – in addition to that – to minimise damage, i.e. using the most precise weapons at your disposal. In the participant’s view, this point was very important to mention, because there is a debate today as to whether if you do not have a precise weapon you can still attack, and if you are able to manufacture or acquire the weapon, or if the weapons are available but not on the spot, you should refrain from attack-ing. On this particular issue, the participant considered that we need an in-depth legal and ethical debate, and asked the panellist if he knows whether there has been, there is or there will be any debate of this kind.
The panellist explained that it is difficult to answer this kind of very precise question, espe-cially when you do not have access to the concrete way armed forces plan their attacks. In the end, you must quote practices from the 1991 Gulf War, or reports that the US Department of Defence has published, and other pieces that you may find. How is the whole concept of feasibly translated in reality? This is actually something very difficult to ascertain when you are outside the operations room. The panellist came back on the ethical essence of the debate, underlining the following guiding principle in accordance with IHL: if you look at the defini-tion of ‘feasible’, you have to have a balance between military and humanitarian considera-tions. The Commentary of the ICRC on Article 57 of the 1977 First Additional Protocol says that it would basically be a question of interpreting this obligation ‘in good faith’. Actually, this does not guide us much, and the panellist noted, on the one hand, the need for a debate in the sense of knowing States’ practices and, on the other hand, the need for an ethical debate on this issue. According to the panellist, the practice that has been published to date gives
the impression that States do actively look for a minimisation and an avoidance of collateral damage. Yet, the problem a lawyer may have in analysing this practice is that one needs to be very careful as to whether this practice stems from a legal perception, i.e. States have a legal obligation to do so, or from policy reasons. For instance, how do you define that each and every part of their practice falls under this opinio juris legal obligation aspect, and how do you distinguish that from policy reasons, which can be explained by the fact that for example, in urban warfare, armed forces need to have the civilian population on their side, so they will avoid collateral damage. For all these reasons, the panellist agreed with the fact that this truly constitutes a large area for further development and research.
2. Obligation to take all feasible precaution and the use of precision-guided munitions
From his experience, one of the participants mentioned that precision-guided munitions are mostly available to countries with advanced weapon technology.
The panellist specified that he referred to precision-guided munitions as an example, because it is among the contentious points found in the literature. Of course, the obligation to take all feasible precautions in choosing means and methods of warfare is translated differently in relation to the type of weapons used by the belligerents. For example, if you do not possess advanced technology and you only have ‘dumb bombs’, then the feasibility of the means and methods of warfare you choose to avoid damage to civilians will be judged in relation to that.
From an intellectual point of view, the panellist noted that it raises a number of questions. But as far as we deal with the application of the principle, it is applicable to everyone in respect to their own capacities.
In addition to that, another panellist explained that a legal and a moral debate is currently taking place on that particular issue. Countries that may not have precision-guided munition, at a certain time, may request this kind of ammunition and run attacks, especially in the framework of a coalition operation. To illustrate this, the panellist took for example people living in the middle of the jungle who do not know what internet is, emphasising that when they know that internet exists, those people will start asking themselves whether they need internet, etc. This is the same idea behind advanced weapon technology. As soon as the access to this kind of weapons is possible, the legal and the moral debate exists.
Lastly, another participant shared his view, agreeing that indeed, very few countries do pos-sess precision-guided munitions. Furthermore, during the targeting process, armed forces may prefer to keep these expensive munitions for themselves for high-value and sensitive targets.
But before starting to use precision-guided munitions, the participant further stressed the
need for specific training of armed forces in the context of urban warfare, notably, for example, to improve the accuracy of their communication means.
3. Effects of an effective warning and circumstances in which it must be given
Another participant raised a question on the issue of effective warning, and more especially on Article 57(2)(c) of the 1977 First Additional Protocol referring to ‘unless circumstances do not permit’. With regard to precaution, the definition of ‘feasibility’ encompasses both military and humanitarian considerations. The participant wondered whether these two elements of military necessity and humanitarian consideration would be more demanding on the obligation to give warning, if the warning can change a lot in terms of protecting civilians. If the warning slows down the operation, would that constitute a ground for ‘circumstances do not permit’, or does he consider that the terms of Article 57(2)(c) operate differently from the concept of feasibility generally speaking?
In the panellist’s view, it would seem that, given the article’s wording, warning should be given, except in some circumstances. The question for armed forces would be: what prevents it being feasible in such cases? Yet, it has to be kept in mind that in any case, the effects on civilians will always have to be taken into account. The panellist mentioned the need to continuously assess and reassess the feasibility of the impact on civilians of an operation, meaning that if a warning was not possible at one stage, it must be given at a later stage – especially when operations last much longer than expected.
The following was also raised: did the panellist have in his experience or knowledge various situations in which effective warning had been given and led to a situation in which the ef-fective contribution to military action – to which the structure was contributing by its use by armed groups – vanished when the armed groups vacated the object and therefore prevented an actual or a potential attack?
The panellist did not have a specific example but agreed with the participant that it could happen, but it would be part of the overall duty to avoid or minimise collateral damage.