Practice Relating to Rule 15. The Principle of Precautions in Attack
Section D. Information required for deciding upon precautions in attack
The Military Manual (2005) of the Netherlands states:
0511. The circumstances of the time are decisive to whether an object constitutes a military objective. The definition leaves the necessary discretion to the commanding officer. The Dutch Government, in ratifying AP I [1977 Additional Protocol I], has declared in this connection that military commanders who are responsible for carrying out attacks must base their decisions on their evaluation of the information available to them at the time …
During the second Gulf War (1990–91), the allied forces identified the Al-Firdus bunker in Baghdad as a military objective. The complex was surrounded by barbed wire barriers and was protected by an armed guard. However, it was not known that the complex was also used as overnight accommodation for Iraqi civilians. Attacks on the bunker complex resulted in 300 civilian fatalities. Given the information available at the time of the attack, the allied forces had firm grounds for classifying the complex as a military objective.
0544. If an attack has begun, it may be necessary to give orders to halt or suspend it. Essentially the same rules apply to this as to refraining from attack at the preparatory stage.
The extent to which commanding officers and their staffs, if any, may be bound by these rules depends on three specific factors:
- freedom of choice of means and methods;
- availability of intelligence;
- available time.
The higher the level, the stricter the requirement for the application of the rules …
0547. The rules of the law of war on attacking military objectives always apply in toto to the targeting process. This is a cyclical process of identifying and targeting objectives. The targeting process is integral to the command process at all levels. It demands coordination among a number of staff officers, including the legal adviser (staff jurist). The selection of targets gives a general view which forms the basis for intelligence gathering. Target detection is the next stage in the process. Information on the target must be analysed so that the final purpose of targeting can proceed. Finally, the result of targeting must be evaluated, to check whether the desired effect is achieved.
0548. The targeting process has several aspects in the law of war. In the first place, detected targets must be appraised in terms of the law of war. Does the target meet the criteria of a “military objective” (see points 0508 ff.)? The attacker must make sure that the objective to be attacked really is military. Where necessary, intelligence obtained must be verified. Then it is necessary to review how the objective is placed in relation to the civilian population and civilian objects. If necessary, precautionary measures must be taken in the choice of means and methods to be used. The issue in choosing the means is not only whether to use aeroplanes, helicopters or artillery, but also what types of bombs and ammunition to use. The choice of methods concerns, for example, the techniques of attack of fighter aircraft. The timing of the attack is another relevant factor.
The Air Force targeting cycle
The cyclical process of target selection begins with the issue of orders and guidelines by the Joint Force Commander (JFC). During the targeting cycle, the JFC’s objectives and guidelines are supplemented with intelligence and operational information, in order to select specific targets. This also serves to determine the means of achieving the desired effect of targeting. Target selection mechanisms exist at various levels. National governments or higher command headquarters may impose policy directives, restrictions and priorities on the JFC.
Joint Targeting Coordination Board
The JFC may set up a joint targeting coordination board (JTCB) to allow an integrated process of targeting to proceed. Key officers of the operational units and national liaison officers may be added to the JTCB. The JTCB may analyse target information, develop guidelines, set priorities and must compile a list of targets (the Joint Integrated Prioritized Target List or JIPTL).
The air force targeting cycle consists of six stages:
- Stage 1: coordination with component commanders (sea, land and air). The JFC regularly consults the component commanders on the results of operations, the strategy to follow and future operational plans. The JFC makes his purposes clear, provides general guidelines and determines his criteria for success. In doing so, he describes his intentions in detail and determines or adapts his priorities. The target list, compiled in this round of the coordination, includes the rules of engagement.
- Stage 2: target development. The JFC’s guidelines are used to develop targets. These are selected from the target list, requests for support from component commanders, and intelligence information. The end-product of stage 2 is a prioritized target list, the JIPTL.
- Stage 3: choice of weapons and allocation of resources, based on the JIPTL. The information is developed for approved targets. This includes stating the desired main point of impact (DMPI).
- Stage 4: Plan of implementation. The component commanders may still submit amendments to support requests at this stage. There is a greater need for explicit instructions, the more the participating units are dispersed, are of different nationalities, or originate from different sections of the armed forces.
- Stage 5: Implementation. The units carry out the actions as ordered.
- Stage 6: Combat assessment. This takes place at all levels of the joint force, and is necessary to ascertain the effectiveness of the accomplished missions. A good combat assessment requires a thorough and prompt battle damage assessment (BDA) and weapons effects analysis (WEA). Based on these, a quick decision can be taken to attack the targets further.
During execution of the mission (stage 5), it is possible to respond to targets which suddenly emerge, or to a rapidly changing operational situation, resulting in a changed order of priority. For this purpose, a process has been developed called flexible or flex targeting. Flexible targeting uses near-real-time information obtainable from various sources in the field of operations. Thus electronic and optical reconnaissance information can be used for the rapid addition of dynamic targets to the targeting cycle. The observations of forward air controllers (FACs), who may be airborne or attached to land units, may also furnish information about targets. The nearest FAC may be given direct clearance for an approved target. For the air force, the AWACS, in consultation with the FAC, observes which attack aircraft are in the vicinity and available. Depending on proximity to buildings, the probabilities of collateral damage and victims among the civilian population, and the rules of engagement, the FAC decides whether to attack, and which of the available aircraft and weapon systems to use. Both for stage 5 and for flex targeting, pilots on an attack mission may come across information which must be considered in the targeting process.
[emphasis in original]
At the CDDH, the Netherlands stated:
Commanders and others responsible for planning, deciding upon or executing attacks necessarily had to reach decisions on the basis of their assessment of the information from all sources which was available to them at the relevant time.
Upon ratification of the 1977 Additional Protocol I, the Netherlands declared with regard to Articles 51 to 58 inclusive:
It is the understanding of the Government of the Kingdom of the Netherlands that military commanders and others responsible for planning, deciding upon or executing attacks necessarily have to reach decisions on the basis of their assessment of the information from all sources which is available to them at the relevant time.