Practice Relating to Rule 16. Target Verification

Those who plan or decide upon an attack shall:

Without prejudice to other precautions required by international humanitarian law in the conduct of military operations, each Party to the conflict shall:

The person responsible for ordering or launching an attack shall, first of all: (a) make sure that the objective, or objectives, to be attacked are military objectives within the meaning of the present rules, and are duly identified. 

…

It must be emphasized that [a responsibility of] command regarding the law of armed conflict and international humanitarian law is to:

… [T]hose who decide or prepare an attack must verify that the objectives to be attacked are military objectives and that the law of armed conflict and international humanitarian law do not prohibit such an attack. 

1. Under the LOAC commanders, planners and staff officers have the following obligations:

1 Distinction. As a general rule civilians and civilian objects shall not be the object of attack (acts of violence against the adversary, whether in offence or defence). Targets shall be limited strictly to military objectives.

…

2 All feasible precautions must be taken to verify that the target is a military objective, and not a civilian or a civilian object, and that it is not subject to any of the specialized regimes of protection which prohibit, or severely restrict, attacks on certain persons and objects. Such regimes exist for wounded, sick, prisoners of war, religious, cultural and historic objects, dams, dykes and nuclear generating stations. 

IV.1.1. Obligations in the planning of offensive actions

In the preparation of an attack, a combatant must:

…

IV.1.3. Respect for objects subject to a special protection

Combatants must do everything in their power to verify that the objects to be attacked are not protected under IHL. In other words, they must not be cultural property, works containing dangerous forces, hospitals, protected zones or localities, nor prisoner-of-war camps. 

In any attack, it is a duty to ensure that:

When selecting objectives and preparing to attack, the attacker must:

…

f. Positive Identification (PID) of targets is required prior to engagement. PID is a reasonable certainty that the object of attack is verified and confirmed as a legitimate military target in accordance with this SROE [Standing Rules of Engagement]. 

…

6. Double-check your target. Don’t be too hasty and careless in firing at anyone whom you think is a combatant. There are times when it is too late to know that the supposed combatant is just carrying an airgun or a farm tool. Sometimes, friendly troops also become victims of friendly fires. This is also true to field artillery units. 

It is clear that [the] extensive definition of “civilian population” and the presumption of a person being a civilian can cause practical difficulty for tactical military commanders, especially in guerrilla type conflicts. Complete and proper intelligence will be invaluable for such commanders to assist them in determining the status of persons who they might encounter and who are ostensibly civilians. Other factors that might be of assistance are circumstantial factors, such as the person’s behaviour, location and appearance in relation to other circumstances.  [emphasis in original]

The principles of military necessity, distinction, proportionality and (the prevention of) unnecessary suffering form the basis for all targeting considerations undertaken in the absence of specific guidelines set forth under international and domestic law.

Targeting involves the careful application of the aforementioned principles, as well as an appreciation of what constitutes a valid military objective.

Consideration should be given [to] whether the potential target is for example [a] combatant, a defended place, or an object that makes an effective contribution to the enemy’s military effort; and does its destruction, capture, or neutralisation offer[] a definite military advantage?

… The general rule is that only clearly identified, designated, verified and assigned military objectives may be attacked.

…

The following precautions are mandatory to all applications of combat power against hostile targets or forces:

…

- The engagement and retaliation policy of the commander (as contained in his operational plan) will guide the conduct of operations.

…

- … This policy will be based on his analysis of fundamental factors of the LOAC [law of armed conflict], to wit:

Commanders have a specific responsibility to take the necessary precautions in attacks in order to avoid or minimise loss of civilian life or damage to civilian property collateral to attacks on military objectives. (Articles 48 and 49 of Additional Protocol I) These responsibilities are:

Additional Protocol 1 article 57 imposes a specific obligation on commanders to do everything feasible to verify that the target of an attack is a military objective. This confirms the need for proper intelligence and verification procedures. 

165 The following precautionary measures must be taken into consideration when making decisions, when issuing orders and in particular when conducting military operations.

With respect to attacks, the following precautions shall be taken:

All possible means will be employed to limit the risk to the lives and property of friendly forces and civilians. In this respect, a target must be clearly identified as hostile prior to making a decision to place fire on it. 

Those who plan or decide upon an attack must do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and not subject to special protection but are military objectives and that it is permissible to attack them. 

Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 

Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 

Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the two additional protocols to [the 1949 Geneva] Conventions … is liable to imprisonment. 

The precautionary principle is the cornerstone of a number of specific rules which are all considered to have attained customary status and to be applicable in internal armed conflicts … Among these rules is … the obligation of the parties to a conflict to do everything feasible to verify that targets are military objectives.  [footnote in original omitted]

The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.

…

The accused’s position is stated to be that this Court has no jurisdiction to try him.

…

… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the [1949] Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …

…

On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …

South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.

After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.

Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.

…

The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …

The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …

South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …

…

… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.

…

To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.

…

Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.

Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …

…

I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.

…

It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …

…

In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.

…

To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …

…

According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.

This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].

…

I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.

For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.

This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.

In the result, the preliminary point is dismissed. The trial must proceed. 

In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.

…

Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:

Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.

This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.

Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.

The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …

Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus and/or opinio juris have not been met. See Petane.  [footnotes in original omitted]

If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris. 

…

e) Surrounding conditions and mission of the SET [Sonder-Einsatz-Team – Special Task Team, in Baghdad from February 2003]

…

Part of the mission of the SET was further:

- Generally, the collection of information in order to allow the Federal Government to gain an independent picture of the situation.

…

- Collection of GPS data, in order to prevent attacks against civilian installations protected under the international law of war (schools, hospitals, diplomatic institutions).

…

…

In the beginning, the focus of reporting from Baghdad was the identification and attribution of the embassies in Baghdad. The BND headquarters transferred this information to US authorities in order to prevent attacks on installations protected under the international law of war.

…

The US side placed requests for information concerning broadly diversified issues. Some of them were answered, also by using reports from the SET.

Those can thematically be classed as follows:

- Reports dealt with installations protected under the international law of war or with humanitarian concerns (embassies and consulates, synagogue/Torah scrolls, possible location of a missing US pilot). Some of these reports contained geographical coordinates.

…

Implementing the fundamental political position of the Federal Government, the following constraints for the exchange of information with the US side were given orally:

[W]hen possible, the IDF [Israel Defense Forces] used (in real time) updated and precise intelligence available regarding target identification and the risk of incidental civilian harm. When necessary, it also cross checked intelligence sources before commencing attacks, even in cases in which delaying fire entailed additional risk to both Israeli civilians and IDF forces. 

We have no means of ascertaining the numbers of military or civilian lives lost during the conflict in Iraq to date, although we make every effort to keep any impact upon the Iraqi civilian population to an absolute minimum. All our military planning is conducted in full accordance with our obligations under international law to employ the minimum necessary use of force to achieve military effect, and to avoid injury to non-combatants or civilian infrastructure. Practically, this is achieved through a combination of an extremely careful targeting process and highly accurate precision guided weapons. 

The prescriptions of … [Article 57 of the 1977 Additional Protocol I] (and of the corresponding customary rules) must be interpreted so as to construe as narrowly as possible the discretionary power to attack belligerents and, by the same token, so as to expand the protection accorded to civilians. 

In determining whether or not the mens rea requirement [intention or recklessness, for the offence of unlawful attack under Article 3 of the 1993 ICTY Statute] has been met, it should be borne in mind that commanders deciding on an attack have duties:

The practical application of the principle of distinction requires that those who plan or launch an attack take all feasible precautions to verify that the objectives attacked are neither civilians nor civilian objects, so as to spare civilians as much as possible. 

The attack may only be directed at a specific military objective. The military objective must be identified as such and clearly designated and assigned. The attack shall be limited to the assigned military objective. The precautions to be taken in targeting are equivalent to those to be respected in the choice of a military objective.

In combat action the military character of the objectives and targets must be verified.