Practice Relating to Rule 15. The Principle of Precautions in Attack

Note: For practice concerning the feasibility of precautions to be taken in the use of booby-traps, see Rule 80. For practice concerning the feasibility of precautions in the use of landmines, see Rules 81–82. For practice concerning the feasibility of precautions in the use of incendiary weapons, see Rule 84.
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Argentina
Argentina’s Law of War Manual (1989) states: “Feasible precautions are those which are practicable or practically possible taking into account all circumstances prevailing at the time, including humanitarian and military considerations.” 
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 4.20.
Australia
Australia’s Defence Force Manual (1994) defines feasible precautions as “precautions which are practicable or practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations”. 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, p. xxiv.
Australia
Australia’s LOAC Manual (2006) states that “all feasible precautions must be taken to gather relevant intelligence and ensure attacks are directed against military objectives”. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 5.1; see also § 2.9.
The manual further states that the duties of Australian Defence Force commanders include “taking all feasible precautions, in the choice of means and methods of attack, to minimise collateral damage”. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 5.61.
The manual’s Glossary defines “feasible precautions” as: “Precautions which are practicable or practically possible taking into account all circumstances ruling at the time including humanitarian and military considerations.” 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, Glossary.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Canada
Canada’s LOAC Manual (1999), with respect to the standard of care to be applied to target verification, precautions in the choice of means and methods of attack and the assessment of the effects of an attack, states:
Commanders, planners and staff officers will not be held to a standard of perfection in reaching their decisions.
Commanders, planners and staff officers are required to take all “feasible” steps to verify that potential targets are legitimate targets. However, such decisions will be based on the “circumstances ruling at the time”. Consideration must be paid to the honest judgement of responsible commanders, based on the information reasonably available to them at the relevant time, taking fully into account the urgent and difficult circumstances under which such judgements are usually made.
The test for determining whether the required standard of care has been met is an objective one: Did the commander, planner or staff officer do what a reasonable person would have done in the circumstances? 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, pp. 4-3/4-4, §§ 25–27.
Canada
Canada’s LOAC Manual (2001) states in its chapter on targeting:
418. Standard of care
1. Commanders, planners and staff officers will not be held to a standard of perfection in reaching their decisions.
2. Commanders, planners and staff officers are required to take all “feasible” steps to verify that potential targets are legitimate targets. However, such decisions will be based on the “circumstances ruling at the time”. Consideration must be paid to the honest judgement of responsible commanders, based on the information reasonably available to them at the relevant time, taking fully into account the urgent and difficult circumstances under which such judgements are usually made.
3. The test for determining whether the required standard of care has been met is an objective one: Did the commander, planner or staff officer do what a reasonable person would have done in the circumstances? 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 418.1–3.
In its glossary, the manual defines “feasible precautions” as “those precautions that are practicable or practically possible taking into account all circumstances ruling at the time including humanitarian and military considerations.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, Glossary, p. GL-6.
Canada
Canada’s Use of Force Manual (2008), in a section entitled “Principles and rules governing the use of force that directly relates to the conduct of armed conflict”, states:
Standard of care. “Feasible” is understood as that which is practicable or practicably possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations. Planners and commanders are expected to act reasonably and in good faith. Decisions concerning the use of force shall be reached on the basis of an assessment of the information reasonably available at the relevant time and that such decisions cannot be judged on the basis of information which has subsequently come to light. Reasonable, good faith efforts must be made to gather intelligence and to review the available intelligence. This standard is one of “reasonableness”, not “perfection”. The test for determining whether the required standard of care has been met is an objective one: “Did the commander, planner or staff officer do what a reasonable person would have done in the circumstances?” 
Canada, Use of Force for CF Operations, Canadian Forces Joint Publication, Chief of the Defence Staff, B-GJ-005-501/FP-001, August 2008, § 112.6.
Netherlands
The Military Manual (1993) of the Netherlands states:
The extent to which commanders and their staff can be held accountable for compliance with these rules [on precautions in attack] is determined by three factors: freedom of choice of means and methods, availability of information [and] available time. The higher the level [of command] the stricter the required compliance is. 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. V-11.
Netherlands
The Military Manual (2005) of the Netherlands provides:
The extent to which commanding officers and their staffs, if any, may be bound by these rules [on precautions in attack] depends on three specific factors:
- freedom of choice of means and methods;
- availability of intelligence;
- available time.
The higher the level [of command], the stricter the requirement for the application of the rules. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0544.
New Zealand
New Zealand’s Military Manual (1992) emphasizes that the obligation to verify targets, to choose means and methods of attack in order to avoid, and in any event to minimize, civilian losses and damage to civilian objects and the obligation to refrain from deciding to launch an attack which may be expected to cause disproportionate collateral damage is incumbent upon “those who plan or decide upon an attack”. The manual considers that:
This obligation presupposes that the measures are to be taken by a level which possesses a formalised planning process and a substantial degree of discretion concerning methods by which medium-term objectives are to be attained. It is unlikely that the proper level would normally be below a divisional or equivalent level of headquarters. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 518(2).
With respect to the notion of “feasible” precautions, the manual specifies that “feasible” means “that which is practicable or practically possible, taking into account all circumstances at the time, including those relevant to the success of the military operations”. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 518(4).
Peru
Peru’s IHL Manual (2004) states:
Those responsible for planning or deciding upon attacks must:
(1) do all that is feasible to verify that the designated target is in fact a military objective;
(2) take all feasible precautions when choosing the tactics and weapons to be used to avoid or, at least, minimize incidental loss of civilian life, injury to civilians and damage to civilian objects. 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 29.b.(1) and (2).
Peru
Peru’s IHL and Human Rights Manual (2010) states:
Those responsible for planning or deciding upon attacks must:
(1) Do all that is feasible to verify that the designated target is in fact a military objective.
(2) Take all feasible precautions in the selection of weapons and tactics in order to avoid or at any rate minimize the number of deaths and injuries amongst the civilian population and damage to civilian objects. 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 30(b)(1)–(2), p. 242.
Spain
Spain’s LOAC Manual (2007) states:
Those responsible for planning and deciding on attacks must take “all feasible precautions” in the choice of means and methods of attack, with a view to “minimizing” the number of casualties among the civilian population, and “do everything feasible” to verify that the military objectives to be attacked are not protected persons or property. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 2.4.c.(6).
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states:
With respect to attacks, the following precautions shall be taken:
(1) those who plan or decide upon an attack shall:
(b) 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. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 5.32; see also § 13.32 (maritime warfare).
The manual further states: “‘Feasible’ means that which is practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 5.32, footnote 191.
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Algeria
Upon accession to the 1977 Additional Protocol I, Algeria stated that the term “feasible” must be interpreted as referring to “precautions and measures which are feasible in view of the circumstances and the information and means available at the time”. 
Algeria, Interpretative declarations made upon accession to the 1977 Additional Protocol I, 16 August 1989, § 1.
Austria
At the CDDH, Austria considered that the precautions envisaged in Article 57 of the 1977 Additional Protocol I
could only be taken at a higher level of military command, in other words by the high command. Junior military personnel could not be expected to take all the precautions prescribed, particularly that of ensuring respect for the principle of proportionality during an attack. 
Austria, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.42, 27 May 1977, p. 212, § 46.
Belgium
Upon ratification of the 1977 Additional Protocol I, Belgium declared: “In view of the travaux préparatoires … ‘feasible precautions’ [are] those that can be taken in the circumstances prevailing at the moment, which include military considerations as much as humanitarian ones.” 
Belgium, Interpretative declarations made upon ratification of the 1977 Additional Protocol I, 20 May 1986, § 3.
Canada
At the CDDH, Canada stated that the word “feasible” when used in the 1977 Additional Protocol I, for example, in Articles 57 and 58, “refers to what is practicable or practically possible, taking into account all circumstances existing at the relevant time, including those circumstances relevant to the success of military operations”. 
Canada, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.42, 27 May 1977, p. 224.
Canada
Upon ratification of the 1977 Additional Protocol I, Canada stated: “The word ‘feasible’ means that which is practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations.” 
Canada, Reservations and statements of understanding made upon ratification of the 1977 Additional Protocol I, 20 November 1990, § 5.
France
Upon ratification of the 1977 Additional Protocol I, France stated that it considered that the term “feasible” as used in the Protocol meant “that which can be realized or which is possible in practice, taking into account all circumstances ruling at the time, including humanitarian and military considerations”. 
France, Reservations and declarations made upon ratification of the 1977 Additional Protocol I, 11 April 2001, § 3.
Germany, Federal Republic of
At the CDDH, the Federal Republic of Germany stated that the word “feasible” in Article 57 of the 1977 Additional Protocol I should be interpreted “as meaning what is practicable or practically possible, taking into account all circumstances at the time, including those relevant to the success of military operations”. 
Germany, Federal Republic of, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.42, 27 May 1977, p. 226.
Germany
Upon ratification of the 1977 Additional Protocol I, Germany stated that it understood the word “feasible” to mean “that which is practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations”. 
Germany, Declarations made upon ratification of the 1977 Additional Protocol I, 14 February 1991, § 2.
India
At the CDDH, India explained its vote on Article 57 of the 1977 Additional Protocol I as follows:
India voted in favour of this article on the clear understanding that it will apply in accordance with the limits of capability, practical possibility and feasibility of each Party to the conflict. As the capability of Parties to a conflict to make distinction will depend upon the means and methods available to each Party generally or in particular situations, this article does not require a Party to undertake to do something which is not within its means or methods or its capability. In its practical application, a Party would be required to do whatever is practical and possible. 
India, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.42, 27 May 1977, p. 228.
Ireland
Upon ratification of the 1977 Additional Protocol I, Ireland stated: “The word ‘feasible’ means that which is practicable or practically possible, taking into account all circumstances at the time, including humanitarian and military considerations.”  
Ireland, Declarations and reservations made upon ratification of the 1977 Additional Protocol I, 19 May 1999, § 6.
Israel
In 2009, in a report on Israeli operations in Gaza between 27 December 2008 and 18 January 2009 (the “Gaza Operation”, also known as “Operation Cast Lead”), Israel’s Ministry of Foreign Affairs stated: “In assessing the adequacy of precautions [in attack], under the provisions of [the 1977] Additional Protocol I, the measure is one of ‘feasibility’, not perfection.” 
Israel, Ministry of Foreign Affairs, The Operation in Gaza 27 December 2008–18 January 2009: Factual and Legal Aspects, 29 July 2009, § 133.
Italy
At the CDDH, Italy stated that the term “feasible” in Article 57 of the 1977 Additional Protocol I “indicates that the obligations it imposes are conditional on the actual circumstances really allowing the proposed precautions to be taken, on the basis of the available information and the imperative needs of national defence”. 
Italy, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.42, 27 May 1977, p. 231.
Italy
Upon ratification of the 1977 Additional Protocol I, Italy declared: “The word ‘feasible’ means that which is practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations.” 
Italy, Declarations made upon ratification of the 1977 Additional Protocol I, 27 February 1986, § 2.
Netherlands
At the CDDH, the Netherlands stated:
The word “feasible” when used in Protocol I, for example in Articles 50 and 51 [57 and 58], should in any particular case be interpreted as referring to that which was practicable or practically possible, taking into account all circumstances at the time. 
Netherlands, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.42, 27 May 1977, p. 214, § 61.
Netherlands
Upon ratification of the 1977 Additional Protocol I, the Netherlands declared: “The word ‘feasible’ is to be understood as practicable or practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations.” 
Netherlands, Declarations made upon ratification of the 1977 Additional Protocol I, 26 June 1987, § 2.
Spain
Upon ratification of the 1977 Additional Protocol I, Spain interpreted the term “feasible” as meaning that “the matter in question is feasible or possible in practice, taking into account all the circumstances prevailing at the time, including humanitarian and military aspects”. 
Spain, Interpretative declarations made upon ratification of the 1977 Additional Protocol I, 21 April 1989, § 3.
Switzerland
At the CDDH, the representative of Switzerland was critical of the wording of Article 57 of the 1977 Additional Protocol I because it lacked clarity, specifically the words “those who plan or decide upon an attack” in the chapeau of Article 57(2). He stated that this
ambiguous wording might well place a burden or responsibility on junior military personnel which ought normally to be borne by those of higher rank. The obligations set out in [Article 57 of the 1977 Additional Protocol I] could concern the high commands only – the higher grades of the military hierarchy, and it was thus that Switzerland would interpret that provision. 
Switzerland, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.42, 27 May 1977, p. 212, § 43.
Switzerland
In its declaration made upon signature and in a reservation made upon ratification of the 1977 Additional Protocol I, Switzerland specified that Article 57(2) applied only to the ranks of commanding officers at the battalion or group level and those of higher ranks. 
Switzerland, Declaration made upon signature of the 1977 Additional Protocol I, 12 December 1977, § 1; Reservations made upon ratification of the 1977 Additional Protocol I, 17 February 1982, § 1.
In 2005, Switzerland withdrew its reservations to Articles 57 and 58 of the 1977 Additional Protocol I. 
Switzerland, Withdrawal of reservations to the 1977 Additional Protocol I, 17 June 2005.
Turkey
At the CDDH, Turkey stated that the word “feasible” in Article 57 of the 1977 Additional Protocol I should be interpreted as “related to what was practicable, taking into account all the circumstances at the time and those relevant to the success of military operations”. 
Turkey, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.42, 27 May 1977, p. 211, § 41.
United Kingdom of Great Britain and Northern Ireland
Upon signature of the 1977 Additional Protocol I, the United Kingdom stated: “The word ‘feasible’ means that which is practicable or practically possible, taking into account all circumstances at the time including those relevant to the success of military operations.” 
United Kingdom, Declarations made upon signature of the 1977 Additional Protocol I, 12 December 1977, § b.
United Kingdom of Great Britain and Northern Ireland
Upon ratification of the 1977 Additional Protocol I, the United Kingdom stated that it understood 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”. 
United Kingdom, Reservations and declarations made upon ratification of the 1977 Additional Protocol I, 28 January 1998, § b.
The United Kingdom further stated that the obligation mentioned in Article 57(2)(b) of the 1977 Additional Protocol I only applied to “those who have the authority and practical possibility to cancel or suspend the attack”. 
United Kingdom, Reservations and declarations made upon ratification of the 1977 Additional Protocol I, 28 January 1998, § o.
United States of America
At the CDDH, the United States stated:
The word “feasible” when used in draft Protocol I, for example in Articles 50 and 51 [57 and 58], refers to that which is practicable or practically possible, taking into account all circumstances at the time, including those relevant to the success of military operations. 
United States, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.42, 27 May 1977, p. 241.
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Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts
The Rapporteur of the Working Group at the CDDH reported that:
Certain words [in Article 50 (57) of the draft Additional Protocol I] created problems, particularly the choice between “feasible” and “reasonable” … The Rapporteur understands “feasible”, which was the term chosen by the Working Group, to mean that which is practicable, or practically possible. “Reasonable” struck many representatives as too subjective a term. 
CDDH, Official Records, Vol. XV, CDDH/III/264/Rev.1, Report to Committee III on the Work of the Working Group submitted by the Rapporteur, 13 March 1975, p. 353.
International Criminal Tribunal for the former Yugoslavia
In its final report to the ICTY Prosecutor in 2000, the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia stated:
The obligation to do everything feasible is high but not absolute … Both the commander and the aircrew actually engaged in operations must have some range of discretion to determine which available resources shall be used and how they shall be used. Further, a determination that inadequate efforts have been made to distinguish between military objectives and civilians or civilian objects should not necessarily focus exclusively on a specific incident. If precautionary measures have worked adequately in a very high percentage of cases then the fact they have not worked well in a small number of cases does not necessarily mean they are generally inadequate. 
ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, The Hague, 14 June 2000, § 29.
Eritrea-Ethiopia Claims Commission
In its Western Front, Aerial Bombardment and Related Claims (Eritrea’s Claim) partial award in 2005, the Eritrea-Ethiopia Claims Commission, in considering the necessity of precautions in attack directed at protecting civilians, stated:
The provisions of Geneva [1977 Additional] Protocol I cited by the Parties represent the best and most recent efforts of the international community to state the law on the protection of the civilian population against the effects of hostilities. The Commission … considers them to express customary international humanitarian law. Those provisions may be summarized as follows: they emphasize the importance of distinguishing between civilians and combatants and between civilian objects and military objectives; they prohibit targeting civilians or civilian objects; they prohibit indiscriminate attacks, including attacks that may be expected to produce civilian losses that would be disproportionate to the anticipated military advantage; and they require both attacker and defender to take all feasible precautions to those ends. 
Eritrea-Ethiopia Claims Commission, Western Front, Aerial Bombardment and Related Claims, Eritrea’s Claim, Partial Award, 19 December 2005, § 95.
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ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces the rule that:
The commander shall take all feasible precautions. “Feasible precautions” are those precautions which are practicable, taking into account the tactical situation (that is all circumstances ruling at the time, including humanitarian and military considerations). 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 365.
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