Rule 16. Target Verification
Rule 16. Each party to the conflict must do everything feasible to verify that targets are military objectives.
State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.
The obligation to do everything feasible to verify that targets are military objectives is set forth in Article 57(2)(a) of Additional Protocol I, to which no reservations relevant to this rule have been made.[1]
This obligation is included in numerous military manuals.[2] It is supported by official statements and reported practice.[3] This practice includes that of States not, or not at the time, party to Additional Protocol I.[4] When the ICRC appealed to the parties to the conflict in the Middle East in October 1973, i.e., before the adoption of Additional Protocol I, to respect the obligation to do everything feasible to verify that targets are military objectives, the States concerned (Egypt, Iraq, Israel and Syrian Arab Republic) replied favourably.[5]
While Additional Protocol II does not include an explicit reference to this rule, more recent treaty law applicable in non-international armed conflicts does so, namely the Second Protocol to the Hague Convention for the Protection of Cultural Property.[6] In addition, the rule is contained in other instruments pertaining also to non-international armed conflicts.[7]
The rule that it is incumbent upon the parties to do everything feasible to verify that targets are military objectives is set forth in military manuals which are applicable in or have been applied in non-international armed conflicts.[8]
The jurisprudence of the International Criminal Tribunal for the Former Yugoslavia in the Kupreškić case provides further evidence of the customary nature of this rule in both international and non-international armed conflicts. In its judgment, the Tribunal considered that this rule was customary because it specified and fleshed out general pre-existing norms.[9] It can be argued indeed that the principle of distinction, which is customary in international and non-international armed conflicts, inherently requires respect for this rule. The Tribunal also relied on the fact that this rule had not been contested by any State.[10] This study found no official contrary practice either.
[1] Additional Protocol I, Article 57(2)(a) (adopted by 90 votes in favour, none against and 4 abstentions) (cited in Vol. II, Ch. 5, § 207).
[2] See, e.g., the military manuals of Argentina (ibid., § 213), Australia (ibid., § 214), Belgium (ibid., § 215), Benin (ibid., § 216), Cameroon (ibid., § 217), Canada (ibid., § 218), Croatia (ibid., §§ 219–220), Ecuador (ibid., § 221), France (ibid., § 222), Germany (ibid., § 223), Hungary (ibid., § 224), Israel (ibid., § 225), Italy (ibid., § 226), Kenya (ibid., § 227), Madagascar (ibid., § 228), Netherlands (ibid., § 229), New Zealand (ibid., § 230), Nigeria (ibid., § 231), Philippines (ibid., § 232), Spain (ibid., § 233), Sweden (ibid., § 234), Switzerland (ibid., § 235), Togo (ibid., § 236), United Kingdom (ibid., § 237), United States (ibid., §§ 238–240) and Yugoslavia (ibid., § 241).
[3] See, e.g., the statements of Indonesia (ibid., § 246), Iraq (ibid., § 248), Jordan (ibid., § 250), Netherlands (ibid., § 252) and United Kingdom (ibid., § 254) and the reported practice of Islamic Republic of Iran (ibid., § 247), Israel (ibid., § 249), Malaysia (ibid., § 251), Syrian Arab Republic (ibid., § 253), United States (ibid., § 255) and Zimbabwe (ibid., § 256).
[4] See, e.g., the practice of Indonesia (ibid., § 246), Iraq (ibid., § 248), Israel (ibid., § 225), Kenya (ibid., § 227), United Kingdom (ibid., §§ 237 and 254) and United States (ibid., §§ 238–240) and the reported practice of the Islamic Republic of Iran (ibid., § 247), Israel (ibid., § 249), Malaysia (ibid., § 251) and United States (ibid., § 255).
[5] See ICRC, The International Committee’s Action in the Middle East (ibid., § 263).
[6] Second Protocol to the Hague Convention for the Protection of Cultural Property, Article 7 (ibid., § 208).
[7] See, e.g., Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia, § 6 (ibid., § 210); Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina, § 2.5 (ibid., § 211); San Remo Manual, § 46(b) (ibid., § 212).
[8] See, e.g., the military manuals of Benin (ibid., § 216), Croatia (ibid., §§ 219–220), Ecuador (ibid., § 221), Germany (ibid., § 223), Italy (ibid., § 226), Kenya (ibid., § 227), Madagascar (ibid., § 228), Nigeria (ibid., § 231), Philippines (ibid., § 232), Togo (ibid., § 236) and Yugoslavia (ibid., § 241).
[9] ICTY, Kupreškić case, Judgment (ibid., § 260).
[10] ICTY, Kupreškić case, Judgment (ibid., § 260).
