Practice Relating to Rule 15. The Principle of Precautions in Attack
Switzerland’s Regulation on Legal Bases for Conduct during an Engagement (2005) states: “The precautionary measures thus aim to spare as far as possible the population and civilian objects during acts of war.”
Switzerland’s ABC of International Humanitarian Law (2009) states:
Although military operations can be legitimately carried out against Military objectives
only, this does not prevent civilians or civilian objects from being harmed. In order to protect them, international humanitarian law requires that, in the conduct of military operations, constant care shall be taken to spare civilians and civilian objects. This is what is called the principle of precaution.
In 2009, in a statement before the UN Security Council during an open debate on the protection of civilians in armed conflict, the permanent representative of Switzerland stated:
The current situation in Gaza cries out to us the importance of the issue we are discussing today. The main victims of the Israeli-Palestinian conflict are civilians. Switzerland is deeply shocked by the very high number of civilians that have been killed or wounded in this conflict, and in particular the high number of child victims. …
Switzerland therefore reiterates its call for … strict compliance with international law by all parties to the conflict. This includes in particular the obligation to respect the principles of distinction, proportionality and precaution.
In 2010, in its Report on IHL and Current Armed Conflicts, Switzerland’s Federal Council stated:
Military responses to guerrilla tactics must be in conformity with the requirements of international humanitarian law. There is a consensus today that the majority of the provisions of [the 1977] Additional Protocol I apply equally to non-international armed conflicts, through customary law. … Even if combatants blend in with the civilian population and use it as a human shield in violation of the law, measures should be taken in order to carry out attacks in a targeted manner and to spare civilians as much as feasible (for example by warning them in advance).
[footnotes in original omitted]
In 2012, Switzerland’s Federal Department of Foreign Affairs issued a press release entitled “Official visit by the Palestinian President”, which stated:
During the meeting, the Head of the FDFA [Federal Department of Foreign Affairs] expressed his deep concern at the escalation of violence throughout the region. It is crucial that all measures of precaution be taken so as to spare the civilian population from the effects of the hostilities being conducted in one of the most densely populated zones in the world.
In 2013, in answer to an interpellation in Parliament regarding the use of drones, Switzerland’s Federal Council stated:
In armed conflicts, strikes carried out with armed drones must respect the rules of the conduct of hostilities as stipulated by international humanitarian law, including the principles of distinction, proportionality and precaution, and must therefore not be directed against civilians or civilian objects. For each strike, it is thus necessary to verify that these principles were respected.
In 2013, in a statement before the UN Security Council during a debate on the protection of civilians in armed conflict made on behalf of the group of friends on the protection of civilians, Switzerland’s chargé d’affaires a.i.
stated: “Parties to conflict too often fail to comply with their obligations under international humanitarian law, which requires all parties to conflict to spare the civilian population from the effects of hostilities.”
In 2013, in a statement at the Meeting of the High Contracting Parties to the 1980 Convention on Certain Conventional Weapons, the permanent representative of Switzerland stated:
The community of States cannot remain indifferent to the human suffering caused by armed conflicts. It was in direct response to this fundamental concern that the CCW [1980 Convention on Certain Conventional Weapons] and its protocols were adopted, with a view to prohibiting or limiting the use of certain specific types of weapons known to inflict superfluous injury or unnecessary suffering, or to strike indiscriminately.
In this regard, Switzerland is deeply concerned by the alleged use of weapons in Syria falling within the ambit of the CCW and its respective protocols, such as the alleged use of anti-personnel mines as well as the alleged use of incendiary weapons in populated areas causing severe human suffering. We call upon all parties to the conflict to comply with their obligations under international law, in particular the principles of distinction, precaution, and proportionality.
Switzerland’s Basic Military Manual (1987) states: “During every attack, commanding officers at the battalion or group level, and those of higher ranks, shall see to it that the civilian population … does not suffer any damage.”
Switzerland’s ABC of International Humanitarian Law (2009) states:
Conduct of hostilities
Not all Means and methods of warfare
are allowed in an Armed conflict
. International humanitarian law stipulates the military operations, tactics and weapons that are permissible. The two generally accepted principles of Distinction
are the basis for a number of specific rules such as the prohibition of direct attacks on the civilian population or on Civilian objects
, the prohibition of indiscriminate attacks and the obligation to adopt precautionary measures (Precaution
) so as to avoid or limit casualties among Civilians
and damage to civilian objects to the greatest possible extent.
In 2010, in its objection to the reservation by the United States to the 1980 Protocol III to the Convention on Certain Conventional Weapons, Switzerland stated:
Upon depositing the instrument of ratification of Protocol III to the Convention on Certain Conventional Weapons on 21 January 2009, the United States of America made a reservation with reference to paragraphs 2 and 3 of article 2 of the said Protocol. According to the reservation, the United States
“reserve[s] the right to use incendiary weapons against military objectives located in concentrations of civilians where it is judged that such use would cause fewer casualties and/or less collateral damage than alternative weapons, but in so doing will take all feasible precautions with a view to limiting the incendiary effects to the military objective and to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects”.
Switzerland appreciates the willingness expressed by the United States to take all feasible precautions to protect the civilian population and individual civilians not directly participating in hostilities. Switzerland considers that these measures are in keeping with the fundamental principle of distinction under international humanitarian law, a principle that is enshrined, in particular, in articles 57 (2) (ii) and 57 (4) of the first 1977 Protocol Additional to the Geneva Conventions of 1949. These provisions require each party to a conflict to “take all reasonable precautions to avoid losses of civilian lives and damage to civilian objects”.
Nonetheless, Switzerland considers that the reservation made by the United States is incompatible with the object and purpose of Protocol III, and therefore it objects to the reservation for the following reasons: …
Switzerland considers that this objection does not constitute an obstacle to the entry into force of Protocol III as between Switzerland and the United States of America.
In 2012, Switzerland’s Federal Department of Foreign Affairs issued a press release entitled “Appeal by the Swiss authorities for compliance with international humanitarian law in Syria”, which stated:
International humanitarian law is applicable to non-international armed conflict.
4. International humanitarian law is applicable in non-international armed conflicts. All parties to the conflict are therefore obliged to respect its rules in all circumstances, including the rules protecting persons who are [not] or are no [longer] participating in the hostilities, as well as the rules relative to the means and methods of warfare. …
Appeal to respect international rules
7. [Switzerland] recalls that in the conduct of military operations, all feasible precautions must be taken with a view to avoid incidental loss of civilian life[,] injury to civilians and damage to civilian objects and collateral damage to civilian property. All parties are subject to the obligation to respect the principles of distinction, proportionality and precaution.
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.
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.
In 2005, Switzerland withdrew its reservations to Articles 57 and 58 of the 1977 Additional Protocol I.