Published online by Cambridge University Press: 10 February 2017
The conduct of hostilities in urban areas is inherently difficult, particularly with respect to the protection of civilians. International humanitarian law places restraints on both attackers and defenders. While much is written about the obligations of attackers with respect to protecting civilians, much less attention has been paid to the defender's obligations. These obligations are routinely referred to as “passive precautions” or “precautions against the effects of attacks” and are codified in Article 58 of Additional Protocol I to the 1949 Geneva Conventions. Article 58 requires parties, “to the maximum extent feasible”, to remove civilians and civilian objects from the vicinity of military objectives, to avoid locating military objectives within or near densely populated areas, and to take other necessary precautions to protect civilians and civilian objects from the dangers resulting from military operations.
Even though they are limited by only requiring those actions which are feasible, the obligations placed on the defender are far from trivial and, if applied in good faith, would certainly provide much needed protections to civilians in armed conflict, particularly in times of urban conflict. However, this ever-increasing urbanization is creating significant pressure on the doctrine of precautions in defence, stretching the “feasibility” standard beyond its capacity to adequately protect civilians. On the other hand, the emergence of advanced technology provides a mechanism for defenders to more easily and more fully comply with their obligations to segregate or protect the civilian population.
For the customary obligation of “precautions against the effects of attacks” to maintain its effectiveness, particularly in urban areas of conflict, the understanding of feasibility and what is “practicable” in current urbanized armed conflicts will have to expand, increasing the practical responsibilities on the defender, including through the use of modern technology. Moreover, imposing criminal responsibility when appropriate and feasible precautions are not taken will rectify the perceived imbalance between the responsibilities of the attacker and those of the defender.
1 I will use the term Daesh to describe what Rosenberg and Schmitt refer to as the Islamic State.
2 Matthew Rosenberg and Eric Schmitt, “In ISIS Strategy, U.S. Weighs Risk to Civilians”, The New York Times, 19 December 2015, available at: www.nytimes.com/2015/12/20/us/politics/in-isis-strategy-us-weighs-risk-to-civilians.html?_r=0 (all internet references were accessed in December 2016). The article continues:
Its inmates are mainly victims of the extremist group – men caught sneaking a cigarette, women spotted with clothes that reveal even a hint of skin, shop owners who failed to pay their bills – and for American officials, the risk of killing any of them in an airstrike is too high.
The same is true of six other nearby buildings, including a mosque and court complex, which, together with city hall, compose the closest thing the Islamic State has to a headquarters.
… But Mr. Obama also acknowledged the dilemma the United States and its allies face in Raqqa and other urban areas in Syria and Iraq, noting that the Islamic State “is dug in, including in urban areas, and they hide behind civilians.[”]
3 Waxman, Matthew C., International Law and the Politics of Urban Air Operations, RAND Corporation, Santa Monica, CA, 2000, p. 16Google Scholar, where the author states: “The density of civilian populations in urban areas increases the chances that even accurate attacks will injure noncombatants. In addition, the collocation of military and civilian assets in urban environments multiplies the chances that military attacks will cause unintended, and perhaps disproportionate, civilian damage.”
4 See Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3, 8 June 1977 (entered into force 7 December 1978) (AP I), Art. 57.
7 A similar provision which was proposed for Additional Protocol II to the 1949 Geneva Conventions was rejected by the States negotiating the Protocol. See Henckaerts, Jean-Marie and Doswald-Beck, Louise (eds), Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005 CrossRefGoogle Scholar (ICRC Customary Law Study), Rule 22.
8 Ibid., Rules 22–24; Schmitt, Michael N., Garraway, Charles H. B. and Dinstein, Yoram, The Manual on the Law of Non-International Armed Conflict With Commentary, International Institute of Humanitarian Law, San Remo, 2006 Google Scholar, reprinted in Dinstein, Yoram and Domb, Fania (eds), Israel Yearbook of Human Rights, Vol. 36, 2006 Google Scholar, para. 2.3.7; Dinstein, Yoram, The Conduct of Hostilities under the Law of International Armed Conflict, 2nd ed., Cambridge University Press, Cambridge, 2010, p. 145CrossRefGoogle Scholar; Greenwood, Christopher, “Customary International Law and the First Geneva Protocol of 1977 in the Gulf Conflict”, in Rowe, Peter (ed.), The Gulf War 1990–91 in International and English Law, Routledge, New York and London, 1993, p. 86Google Scholar. Note that the International Group of Experts which produced the Tallinn Manual on the International Law Applicable to Cyber Warfare “took the position that the Rule's application was limited to international armed conflicts”. Schmitt, Michael N. (ed.), Tallinn Manual on the International Law Applicable to Cyber Warfare, International NATO Cooperative Cyber Defence Centre of Excellence, Cambridge University Press, Cambridge, 2013 (Tallinn Manual), p. 176CrossRefGoogle Scholar.
9 ICRC Customary Law Study, above note 7, Rules 23–24. See also Queguiner, Jean-Francois, “Precautions Under the Law Governing the Conduct of Hostilities”, International Review of the Red Cross, Vol. 88, No. 864, 2006, pp. 820–821 CrossRefGoogle Scholar, where the author states: “Contrary to what is sometimes maintained, Additional Protocol I does not introduce a fundamental imbalance between the precautions required of the defender and those required of the attacker. Responsibility for applying the principle of distinction rests equally on the defender, who alone controls the population and objects present on his territory, and on the attacker, who alone decides on the objects to be targeted and the methods and means of attack to be employed. Consequently, only a combination of precautions taken by all belligerents will effectively ensure the protection of the civilian population and objects.”
This is reflected in modern military operations. For example, a recent report on the armed conflict between Israel and the Palestinians in Gaza stated: “The Law of Armed Conflict not only prohibits targeting an enemy‘s civilians; it also requires parties to an armed conflict to distinguish their combatant forces from their own civilians, and not to base operations in or near civilian structures, especially protected sites such as schools, medical facilities and places of worship. … The reason for these rules is clear. When a party to an armed conflict uses civilian and protected spaces for military purposes, those spaces become legitimate targets for the opposing side, thereby placing civilian lives and infrastructure in grave danger.” Israel Ministry of Foreign Affairs, The Operations in Gaza: Factual and Legal Aspects, 29 July 2009, available at: www.mfa.gov.il.
10 See Bagley, David A., “Ratification of Protocol I to the Geneva Conventions of 1949 by the United States: Discussion and Suggestions from the American Lawyer-Citizen”, Loyola of Los Angeles International and Comparative Law Journal, Vol. 11, No. 3, 1989, pp. 448–449 Google Scholar, where the author argues that “Articles 51 through 58 of the Protocol are among the most sweeping in their expansion of the protection afforded civilians and civilian objects. In general, they are broad positive law enactment of the ‘principle of proportionality’ in that they require that destruction of civilian objects be minimized.”
11 See International Criminal Tribunal for the Former Yugoslavia (ICTY), The Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Judgment (Appeals Chamber), 30 November 2006, para. 194; and ICTY, The Prosecutor v. Kupreskic et al., Case No. IT-95-16-T, Judgment (Trial Chamber), 14 January 2000, para. 524, where the ICTY found Articles 57 and 58 to be “part of customary international law, not only because they specify and flesh out general pre-existing norms, but also because they do not appear to be contested by any State, including those which have not ratified the Protocol”.
12 US Department of Defense, Law of War Manual, Office of General Counsel, June 2015 (US Law of War Manual).
13 See J.-F. Queguiner, above note 9, p. 820, where the author states: “It is also worth noting that the standards laid down in Article 58 are not limited to prohibiting the deliberate scattering of military elements in a civilian environment in order to impede enemy operations. Article 58 has a much broader field of application: it requires the party under attack to adopt, in good faith, proactive measures that are designed to guarantee immunity of the civilian population and objects.”
15 Rogers, A. P. V., Law on the Battlefield, Manchester University Press, Manchester, 1996, p. 71Google Scholar.
16 Parks, W. Hays, “Air War and the Law of War”, Air Force Law Review, Vol. 32, No. 1, 1990, p. 153Google Scholar.
17 Convention (IV) respecting the Laws and Customs of War on Land, 36 Stat. 2277, The Hague, 18 October 1907 (entered into force 26 January 1910).
20 International Law Association, Draft Convention for the Protection of Civilian Populations Against New Engines of War, Amsterdam, 2 September 1938, available at: www.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?action=openDocument&documentId=29.DF95181E9CC0FDC12563CD002D6A9B.
21 A. P. V. Rogers, above note 15, p. 71.
23 Ibid ., p. 72. See also W. H. Parks, above note 16, p. 153, where the author states: “The practice of all nations that carried out aerial bombardment operations during World Wars I and II establishes clearly that no nation concerned itself with the risk of injury to the civilian population of an enemy nation incidental to the conduct of military operations.” Parks goes on to argue that “Protocol I constitutes an improvement in the law of war in recognizing that an attacker should, in most cases, give consideration to minimization of collateral civilian casualties.” Ibid., pp. 153–154.
24 ICRC, Draft Rules for the Limitation of the Dangers incurred by the Civilian Population in Time of War, 15 October 1956, available at: www.icrc.org/ihl/INTRO/420?OpenDocument.
27 Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974–1977), Swiss Federal Political Department, Bern, 1978 (Official Records), Vol. 1, Part. 1, p. 17.
28 AP I, Art. 58.l.
29 M. Bothe, K. J. Partsch and W. A. Solf, above note 26, p. 416.
30 AP I, Art. 58.
31 Article 57 of AP I states:
1. In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects.
2. With respect to attacks, the following precautions shall be taken:
(a) those who plan or decide upon an attack shall:
(i) do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection but are military objectives within the meaning of paragraph 2 of Article 52 and that it is not prohibited by the provisions of this Protocol to attack them;
(ii) 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;
(iii) 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;
(b) an attack shall be cancelled or suspended if it becomes apparent that the objective is not a military one or is subject to special protection or that the attack 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;
(c) effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit.
3. When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects.
4. In the conduct of military operations at sea or in the air, each Party to the conflict shall, in conformity with its rights and duties under the rules of international law applicable in armed conflict, take all reasonable precautions to avoid losses of civilian lives and damage to civilian objects.
5. No provision of this Article may be construed as authorizing any attacks against the civilian population, civilians or civilian objects.
32 M. Bothe, K. J. Partsch and W. A. Solf, above note 26, p. 413. The Commentary echoes this same conviction: “This article is a corollary to the numerous articles contained in the Protocol for the benefit of the population of enemy countries. It is not concerned with laying down rules for the conduct to be observed in attacks on territory under the control of the adversary, but with measures which every Power must take in its own territory in favour of its nationals, or in territory under its control.” Sandoz, Yves, Swinarski, Christophe and Zimmermann, Bruno (eds), Commentary on the Additional Protocols, ICRC, Geneva, 1987, p. 692Google Scholar.
33 See Ibid ., which states: “Belligerents may expect their adversaries to conduct themselves fully in accordance with their treaty obligations and to respect the civilian population, but they themselves must also cooperate by taking all possible precautions for the benefit of their own population as is in any case in their own interest.”
34 Kalshoven, Fritz, Reflections on the Law of War: Collected Essays, Martinus Nijhoff, Leiden, 2007, p. 223Google Scholar.
35 W. H. Parks, above note 16, p. 158.
37 US Law of War Manual, above note 12, p. 186. Further, the United States takes the view that the presumption of civilian status laid out in Article 52(3) of AP I is not customary international law and actually has the negative consequence of “encourag[ing] a defender to ignore its obligations to separate military objectives from civilians and civilian objects”. US Law of War Manual, above note 12, p. 197. The Manual then quotes a report from the 1991 Gulf War which states: “This language [of Article 52(3) of AP I], which is not a codification of the customary practice of nations, causes several things to occur that are contrary to the traditional law of war. It shifts the burden for determining the precise use of an object from the party controlling that object (and therefore in possession of the facts as to its use) to the party lacking such control and facts, i.e., from defender to attacker. This imbalance ignores the realities of war in demanding a degree of certainty of an attacker that seldom exists in combat. It also encourages a defender to ignore its obligation to separate the civilian population, individual civilians and civilian objects from military objectives, as the Government of Iraq illustrated during the Persian Gulf War.” US Department of Defense, Conduct of the Persian Gulf War: Final Report to Congress Pursuant to Title V of the Persian Gulf Conflict Supplemental Authorization and Personnel Benefits Act of 1991 (Public Law 102–25), April 1992, p. 616.
38 M. C. Waxman, above note 3, p. 16; Schmitt, Michael N., “Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance”, Virginia Journal of International Law, Vol. 50, No. 4, 2010, p. 828Google Scholar.
39 Of course, as Geoffrey Corn points out, “[i]n this context, it would be improper to interpret the ‘densely populated’ qualifier as a license to co-mingle military assets with civilian populations when the civilian population is not ‘dense’”. Corn, Geoffrey S., “Targeting, Distinction, and the Long War: Guarding Against Conflation of Cause and Responsibility”, Israel Yearbook on Human Rights, Vol. 46, 2016 Google Scholar.
40 Y. Sandoz, C. Swinarski and B. Zimmermann, above note 32, p. 692. Parks echoes this concern when he notes: “For hygiene, morale, communications and other reasons, military personnel and units historically have been billeted or housed in populated areas, and the doctrine of most nations provides for a continuation of this practice; it should not necessarily be viewed as sinister.” W. H. Parks, above note 16, p. 159.
41 Jensen, Eric Talbot, “Cyberwarfare and Precautions against the Effects of Attacks”, Texas Law Review, Vol. 88, No. 7, 2010, pp. 1554–1555 Google Scholar. This view of “precautions” is confirmed by the Commentary, which states that the article contains “measures to be taken already in peacetime, even though, strictly speaking, the article is only addressed to Parties to a conflict. Some of these measures have a preventive or precautionary character since they are concerned with preventing the construction of certain buildings in particular places, or removing objectives from an area where such buildings are located, or otherwise separating the population and their homes from dangerous places.” Y. Sandoz, C. Swinarski and B. Zimmermann, above note 32, p. 692. See also ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, Report prepared for the 28th International Conference of the Red Cross and Red Crescent, 2–6 December 2003 (2003 Challenges Report), p. 14, available at: www.icrc.org/eng/assets/files/other/ihlcontemp_armedconflicts_final_ang.pdf, where the Conference identified the requirements of the defender to protect civilian populations as one of the areas that needed greater emphasis and noted: “States must be encouraged to take measures necessary to reduce or eliminate the danger to the civilian population already in peacetime.”
42 J.-F. Queguiner, above note 9, p. 820.
43 A. P. V. Rogers, above note 15, pp. 79–83. Solf agrees and writes that States must take precautions “such as the provision of shelters and civilian defense programs, to protect the civilian population against the danger resulting from military operations”. Solf, Waldemar A., “Protection of Civilians against the Effects of Hostilities under Customary International Law and Under Protocol I”, American University International Law Review, Vol. 1, No. 1, 1986, p. 132Google Scholar.
44 J.-F. Queguiner, above note 9, p. 817.
46 W. H. Parks, above note 16, p. 152.
47 J.-F. Queguiner, above note 9, p. 818; M. Bothe, K. J. Partsch and W. A. Solf, above note 26, p. 415.
48 J.-F. Queguiner, above note 9, p. 818.
49 M. Bothe, K. J. Partsch and W. A. Solf, above note 26, p. 415.
50 Y. Sandoz, C. Swinarski and B. Zimmermann, above note 32, pp. 693–694.
51 A. P. V. Rogers, above note 15, p. 73.
53 Y. Sandoz, C. Swinarski and B. Zimmermann, above note 32, p. 692, quoting Republic of Korea, O.R. VI, CDDH/SR.42, Annex, pp. 234–235,
54 See US Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, Department of Homeland Security and US Coast Guard, The Commander's Handbook on the Law of Naval Operations, NWP1-14M, MCWP 5-12.1, COMDTPUB P5800.7A, July 2007 ed., 2007, para. 8.3.2: “A party to an armed conflict has an affirmative duty to remove civilians under its control (as well as the wounded, sick, shipwrecked, and prisoners of war) from the vicinity of objects of likely enemy attack.”
55 A. P. V. Rogers, above note 15, p. 74.
56 ICRC Customary Law Study, above note 7, Rules 23–24.
57 See A. P. V. Rogers, above note 15, pp. 77–78, where the author states: “During the Gulf War of 1990–91 it was alleged that Iraq pursued a deliberate policy of placing military objectives near protected objects, for example, near mosques, medical facilities and cultural property. Examples included dispersing military helicopters in residential areas, storing military supplies in mosques, schools and hospitals, including a cache of Silkworm missiles in a school in Kuwait City, placing fighter aircraft near the ancient temple of Ur and the discovery by UN inspectors of chemical weapon production equipment in a sugar factory in Iraq.”
58 The Independent International Fact-Finding Mission on the Conflict in Georgia found that many South Ossetian fighters used civilian homes and buildings in the city of Tskhinvali to fire upon the Georgians, “putting at risk the lives of civilians who were sheltering in the basements of the same buildings” and thus committing a “clear violation of the obligation to avoid locating military objectives within or near densely populated areas”. Independent International Fact-Finding Mission on the Conflict in Georgia, Report, Vol. 2, September 2009, p. 350.
59 Human Rights Watch documented numerous violations during the conflict between the Liberation Tigers of Tamil Eelam (LTTE) and Sri Lanka with respect to the responsibility to segregate forces from civilians, including allegations that the LTTE “prevented civilians under its effective control from fleeing to areas away from the fighting, [and] … forcing civilians to retreat with its forces”. Similarly, the Sri Lankan Army (SLA) established safe zones for civilians and subsequently “subjected [those safe zones] to heavy shelling from SLA positions”. Human Rights Watch, War on the Displaced: Sri Lankan Army and LTTE Abuses against Civilians in the Vanni, Report, February 2009, available at: www.hrw.org.
60 Watch, Human Rights, Why They Died: Civilian Casualties during the 2006 War, Report, Vol. 19, No. 5(E), September 2007, pp. 42–43 , available at: www.hrw.org/sites/default/files/reports/lebanon0907.pdf.
63 See Jensen, Eric Talbot, “Cyber Attacks: Proportionality and Precautions in Attack”, International Law Studies, Vol. 89, 2013, p. 213Google Scholar, where the author argues that “the ubiquitous nature of the cyber domain has made it almost impossible to segregate potential military objectives from civilian objects even in a geographic sense. Consider air traffic control centers and other major civilian transportation control centers as well as power generation facilities. All of these serve both civilian and military purposes and are clear cyber targets but are also virtually impossible to segregate. State practice in this area has at least demonstrated that nations have not found such segregation to be feasible. In fact, many militaries seem to be moving in the exact opposite direction and co-locating an ever greater percentage of their cyber infrastructure with civilian infrastructure.”
64 Tallinn Manual, above note 8, p. 177.
65 J.-F. Queguiner, above note 9, p. 818.
66 See E. T. Jensen, above note 63, p. 212.
67 See Y. Sandoz, C. Swinarski and B. Zimmermann, above note 32, p. 600.
69 M. Bothe, K. J. Partsch and W. A. Solf, above note 26, p. 416. The fifth paragraph of Article 18 of the Fourth Geneva Convention states: “In view of the dangers to which hospitals may be exposed by being close to military objectives, it is recommended that such hospitals be situated as far as possible from such objectives.” Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War of 12 August 1949, 75 UNTS 973 (entered into force 21 October 1950), Art. 18, available at: www.icrc.org/ihl.nsf/FULL/380?OpenDocument.
70 See Official Records, above note 27, Vol. 14, pp. 198–199, where B. G. Wolfe is quoted as having argued that “use of the word ‘control’ would impose obligations on the parties which would not necessarily be implied by the use of the word ‘authority.’ It referred to the de facto as opposed to the de jure situation.”
71 Fleck, Dieter (ed.), The Handbook of Humanitarian Law in Armed Conflicts, Oxford University Press, Oxford, 1995, p. 223Google Scholar.
72 J.-F. Queguiner, above note 9, pp. 818–819. Rogers adds: “The last obligation covers a wide range of possibilities, from the provision of shelters, firefighting, provision of equipment to protect civilians from nuclear, chemical or biological attack, the enforcement of a blackout, an evacuation service, co-ordination of the emergency services and taking other adequate civil defence measures, a civil responsibility, to the broadcasting of warnings such as air raid warnings, a shared responsibility, and the fencing of minefields or the provision of military engineer support, a military responsibility.” A. P. V. Rogers, above note 15, p. 76.
The Commentary also confirms many of the same options: “As regards persons, the other measures that can be taken by a Party to the conflict consist mainly of making available to the civilian population shelters which provide adequate protection against the effects of weapons. In some countries real efforts are made to supply the population with such shelters, both collectively and individually, the latter when every dwelling includes a shelter for the occupants.” Y. Sandoz, C. Swinarski and B. Zimmermann, above note 32, pp. 694–695.
73 Report of the Secretary-General to the Security Council on the Protection of Civilians in Armed Conflict, UN Doc. S/2001/331, 30 March 2001, para. 47.
74 Report of the Secretary-General pursuant to General Assembly Resolution 53/55: The Fall of Srebrenica, UN Doc. A/54/549, 15 November 1999, available at: www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/a_549_1999.pdf.
75 2003 Challenges Report, above note 41, p. 14.
76 See A.P.V. Rogers, above note 15, p. 76, where the author states that the language “to the maximum extent feasible” was “included on the insistence of the densely populated countries, which felt that Art. 58 would adversely affect their ability to defend themselves, and of countries worried about the expense of complying with the provision.”
77 F. Kalshoven and L. Zegveld, above note 45, p. 117.
78 M. Bothe, K. J. Partsch and W. A. Solf, above note 26, p. 414.
79 A. P. V. Rogers, above note 15, p. 76.
80 M. Bothe, K. J. Partsch and W. A. Solf, above note 26, p. 414.
81 CDDH/SR. 42, paras. 54, 55, quoted in M. Bothe, K. J. Partsch and W. A. Solf, above note 26, p. 416. “The expression ‘to the maximum’ extent feasible used in such provisions, if they were to be applied in the concrete case of France, could not really become operative, given the distribution and density of the population, unless it were accepted that French territory would not be defended …. That amounted to saying either that it was impossible to apply the provisions of subparagraph (b) or that such provisions, if they were actually applied, would prevent France from exercising its right to self defence, which was unacceptable.” Ibid., p. 416.
83 J.-F. Queguiner, above note 9, pp. 819–820.
84 W. H. Parks, above note 16, p. 159.
85 J.-F. Queguiner, above note 9, pp. 819–820; Gaudreau, Julie, “The Reservations to the Protocols Additional to the Geneva Conventions for the Protection of War Victims”, International Review of the Red Cross, Vol. 85, No. 849, 2003, pp. 143, 157Google Scholar.
86 Official Records, above note 27, Vol. 14, p. 199.
88 M. Bothe, K. J. Partsch and W. A. Solf, above note 26, p. 414; CDDH/215/Rev.1, para. 102.
89 For example, the term “feasible” is also used in Articles 41, 56, 57, 78 and 86.
90 A. P. V. Rogers, above note 15, p. 73; Michael N. Schmitt, “Asymmetrical Warfare and International Humanitarian Law”, Air Force Law Review, Vol. 62, No. 1, 2008, p. 21.
91 A.P.V. Rogers, above note 15, p. 77.
92 Official Records, above note 27, Vol. 6, p. 214; E. T. Jensen, above note 41, p. 1548.
93 Official Records, above note 27, Vol. 6, p. 214.
94 J. Gaudreau, above note 85, pp. 156–157; M. Bothe, K. J. Partsch and W. A. Solf, above note 26, p. 415.
95 See United States Military Tribunal, Nuremberg, United States v. Wilhelm List et al., Case No. 47, Judgment (Military Tribunal V), 19 February 1948, in Trials Of War Criminals Before The Nuremberg Military Tribunals Under Control Council Law No. 10, Vol. 11, 1950, p. 1295; See also Jensen, Eric Talbot, “Unexpected Consequences from Knock-On Effects: A Different Standard for Computer Network Operations?”, American University International Law Review, Vol. 18, No. 5, 2003, pp. 1181–1183 Google Scholar.
96 United States v. Wilhelm List et al., above note 96, p. 1296.
97 US Law of War Manual, above note 12, p. 190.
98 See Y. Sandoz, C. Swinarski and B. Zimmerman, above note 32, pp. 681–682; J. Gaudreau, above note 85, pp. 143, 157.
99 See Y. Sandoz, C. Swinarski and B. Zimmerman, above note 32, pp. 681–682; J. Gaudreau, above note 85, p. 692, which states: “In fact the Diplomatic Conference often used this expression to illustrate the fact that no one can be required to do the impossible. In this case it is clear that precautions should not go beyond the point where the life of the population would become difficult or even impossible.”
100 See US Law of War Manual, above note 12, p. 189, which states: “Although this manual primarily uses ‘feasible,’ other adjectives have been used to describe the obligations to take feasible precautions during armed conflict. The words ‘practicable,’ ‘reasonable,’ ‘due,’ and ‘necessary’ have been used to describe this obligation”; and letter from Ambassador Christopher Hulse to the Swiss government, 28 January 1998, available at: www.icrc.org/ihl.nsf/NORM/0A9E03F0F2EE757CC1256402003FB6D2?OpenDocument, listing the United Kingdom's reservations and declarations to AP I, and explaining in paragraph (b) that “[t]he United Kingdom understands the term ‘feasible’ as used in the Protocol to mean that which is practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations”. See also UK Ministry of Defence, Manual of the Law of Armed Conflict, JSP 383, 2004, p. 81, para. 5.32; ICRC Customary Law Study, above note 7, p. 54.
101 AP I, Art. 85.
102 J.-F. Queguiner, above note 9, p. 816. See also Rewi Lyall, “Voluntary Human Shields, Direct Participation in Hostilities and the International Humanitarian Law Obligations of States”, Melbourne Journal of International Law, Vol. 9, No. 2, 2008, p. 316, where the author states: “By contrast, liability does not attach to a breach of art. 58 amounting to a failure by a defending state to fulfil its responsibility to take adequate precautions to remove and protect civilians from attack”; and W. H. Parks, above note 16, p. 158, where the author states: “In practical terms, article 58 can do little more than admonish. … The provisions contained in article 58 are not obligatory.” Note that the Rome Statute has no provision for a violation of precautions against the effects of attacks. The closest possible violation would be the prohibition on human shields found in Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, 17 July 1998 (entered into force 1 July 2002), Art. 8(b)(xxxiii).
103 Report of the United Nations Fact-Finding Mission on the Gaza Conflict, Human Rights Council, UN Doc. A/HRC/1 2/48, 25 September 2009, para. 496, available at: www2.ohchr.org/english/bodies/hrcouncil/docs/12session/A-HRC-12-48.pdf.
105 J.-F. Queguiner, above note 9, p. 821.
106 See the discussion above.
107 J.-F. Queguiner, above note 9, pp. 811–817; Robin Geiss, “When Locating Military Objectives Within Populated Areas Becomes Using Human Shields”, in Edoardo Greppi (ed.), Proceedings of the 37th Round Table on Current Issues in International Humanitarian Law: Conduct of Hostilities: The Practice, the Law and the Future, 2014.
108 This type of activity has been termed “lawfare”. See Col. Charles J. Dunlap Jr., “Law and Military Interventions: Preserving Humanitarian Values in 21st Century Conflicts”, presentation prepared for the Humanitarian Challenges in Military Intervention Conference, Washington, DC, 29 November 2001, available at: www.ksg.harvard.edu/cchrp/Web%20Working%20Papers/Use%20of%20Force/Dunlap2001.pdf; Michael N. Schmitt, “The Impact of High and Low-Tech Warfare on the Principle of Distinction”, Harvard Program on Humanitarian Policy and Conflict Research, Briefing Paper, November 2003, reprinted in Roberta Arnold and Pierre-Antoine Hildbrand (eds), International Humanitarian Law and the 21st Century's Conflicts: Changes and Challenges, Editions Interuniversitaires Suisses, Lausanne, 2005.
109 AP I, Art. 51(7); Melzer, Nils, Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law, ICRC, Geneva, 2009, pp. 56–57 Google Scholar, available at: www.icrc.org/eng/assets/files/other/icrc-002-0990.pdf.
110 See G. S. Corn, above note 39.
112 It might be argued that the wording of Article 58 of “The Parties to the conflict” applies only to States and would not bind non-State actors. This interpretation is refuted by the ICRC in a March 2008 Opinion Paper which states, “non-governmental groups involved in the conflict must be considered as ‘parties to the conflict’”. ICRC, “How is the Term ‘Armed Conflict’ Defined in International Humanitarian Law?”, Opinion Paper, March 2008, available at: www.icrc.org/eng/assets/files/other/opinion-paper-armed-conflict.pdf. This view is also reflected in the 2016 Commentary to Article 3 which clearly makes the distinction between States and Parties to a conflict. ICRC, Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 2nd ed., 2016, paras 384–392, available at: https://ihl-databases.icrc.org/ihl/full/GCI-commentary.
113 For example, a 2012 issue of the International Review of the Red Cross was dedicated to “New Technologies and Warfare”: International Review of the Red Cross, Vol. 94, No. 886, 2012, available at: www.icrc.org/en/international-review/new-technologies-and-warfare. See also William H. Boothby, “The Legal Challenges of New Technologies: An Overview”, in Hitoshi Nasu and Robert McLaughlin (eds), New Technologies and the Law of Armed Conflict, Asser Press, The Hague, 2014, p. 22, where the author argues that it is “a matter of some difficulty to determine whether it is technology that challenges the law or the law that challenges the use of novel technologies in armed conflict”.
115 See G. S. Corn, above note 39.
116 See Patrick Tucker, “Military Looking to Give Troops Super Sensing Abilities”, Defense One, 10 February 2015, available at: www.defenseone.com/technology/2015/02/military-looking-give-troops-super-sensing-abilities/105039/, where the author writes: “By digitization, [the Defense Advanced Research Projects Agency] means collecting sensor data that would provide much more detailed and actionable real-time information about a squad's condition, surroundings and adversaries.”
117 See National Nanotechnology Initiative, “Frequently Asked Questions”, available at: http://nano.gov/nanotech-101/nanotechnology-facts; Jensen, Eric Talbot, “The Future of the Law of Armed Conflict: Ostriches, Butterflies, and Nanobots”, Michigan Journal of International Law, Vol. 35, No. 2, 2014, p. 301Google Scholar.
118 Lockheed Martin, “High-Performance Nanoenabled Electronics: Robust, Versatile, Affordable, Fast”, Lockheed Martin Corporation, Bethesda, MD, 2013, available at: www.lockheedmartin.com/content/dam/lockheed/data/corporate/documents/nano/sensors.pdf.
119 Patrick Tucker, “Pentagon Seeks Sensors that Last for Years”, Defense One, 13 April 2015, available at: www.defenseone.com/technology/2015/04/pentagon-seeks-sensors-last-years/110044/.
120 Steven Erlanger and Fares Akram, “Israel Warns Gaza Targets by Phone and Leaflet”, The New York Times, 8 July 2014, available at: http://www.nytimes.com/2014/07/09/world/middleeast/by-phone-and-leaflet-israeli-attackers-warn-gazans.html, where the authors state: “But the events on Tuesday were another example of a contentious Israeli policy in which occupants of a building about to be bombed or shelled are given a brief warning in Arabic to evacuate. The Israelis have used such telephone calls and leaflets for years now, in a stated effort to reduce civilian casualties and avoid charges of indiscriminate killings or even of crimes against the rules of war.”
121 ISACA, Geolocation: Risk, Issues and Strategies, White Paper, Rolling Meadows, IL, 2011, available at: www.isaca.org/groups/professional-english/wireless/groupdocuments/geolocation_wp.pdf.
122 For example, the New York City Police Department uses an extensive camera system to provide real-time surveillance of the city. Similar cameras could be installed in key locations by the defender in order to monitor population movements and provide greater protections. See Bob Hennelly, “A Look Inside the NYPD Surveillance System”, WNYC News, 21 May 2010, available at: www.wnyc.org/story/71535-a-look-inside-the-nypd-surveillance-system/.
123 See US Law of War Manual, above note 12, pp. 251–252, which states: “It may be appropriate to identify protected persons and objects, as such, through the use of distinctive and visible signs. For example, it may be appropriate to identify civilian hospitals or civilian air raid shelters in order to facilitate their protection during enemy bombardment. Signs indicating civilian objects, as such, should be notified to the opposing party so that the opposing party knows to refrain from bombarding places or buildings bearing these signs.”
124 W. H. Boothby, above note 113, p. 25.
125 See G. S. Corn, above note 39.