Practice Relating to Rule 15. The Principle of Precautions in Attack
Section A. Constant care to spare the civilian population, civilians and civilian objects
Spain’s LOAC Manual (1996) states: “Constant care shall be taken to spare the civilian population, civilian persons and civilian objects.”
Spain’s LOAC Manual (2007) states:
In the conduct of military operations, constant care must be taken, to the extent possible, to spare the civilian population, civilians and civilian objects. …
The term “to the extent possible” means that the precautions should be practicable or practically possible, taking into account all circumstances prevailing at the time, including humanitarian and military considerations.
In 2010, in the Couso case, which concerned the killing of a Spanish journalist in Baghdad on 8 April 2003 by troops of the United States of America, the Criminal Chamber of Spain’s Supreme Court noted:
[A]s alleged [by the appellants], the appealed order [presently under review] seems to place an emphasis, in order to terminate the proceedings, on the second section of Article 611(1) of the PC [Penal Code (1995)] … when it is clear that on the last occasion the examining magistrate also based his proceedings on the first section referring to those who carry out or order an indiscriminate or excessive attack … [T]he latter should be evaluated by the Court, as was expressed in the dissenting opinion, according to the principles of International Humanitarian and customary law, and not in an anticipated manner. As a result the appealed order lacks the necessary reasoning, as it ignores the substantial grounds [raised] in the second indictment order …
In addition, the appealed order … reaches a conclusion concerning the termination of the proceedings in accordance with Article 637(2) LECr [Law on Criminal Prosecution of 1881] (as the facts did not constitute an offence) solely based on the allegation that there was a mistake by the acting [US] armed forces.
In this way, the order insists on the “credibility that there was a visual mistake concerning the presence of a sniper
… in the hotel, [and that this was] the reason that the decision to attack the building was [taken], in terms of prevention, in order to secure the area
[emphasis in original]
The Court further referred to norms of IHL relevant to the case under review, including Article 51(1) of the 1977 Additional Protocol I,
and restated Articles 57(1) and 85(3)(a) of the 1977 Additional Protocol I.
The Court also held:
The appealed decision declared the termination of the proceedings … as it considered that the “facts [of] the case did not constitute an offence
” … [H]owever, the proceedings carried out do not permit sharing the conclusions of the first instance tribunal; rather, the facts [denounced] merit being subsumed under the cited penal provisions and the aforementioned norms of International Humanitarian Law.
[emphasis in original]
In deciding upon a breach of the law due to the failure to apply the national and international provisions on the principle of precaution, the Court held:
1. … [T]here is no indication that the hotel was being used as a “shield” to commit an action against the accused, as was claimed by the Prosecution Service at one point and accepted by the appealed order. There is no trace – as opposed to what is stated in the order – that there was a visual mistake concerning the presence of a sniper … in the hotel. … [There is also no evidence] that the [US] tank was fired upon in the 35 minutes prior [to the attack on the hotel] or that there was anti-vehicle artillery capable of reaching it from the hotel, taking into account that the tank was more than 1500 metres away and that an RPG grenade launcher does not reach more than 650 metres. …
2. Due to their similarity with this matter, we must refer to what has been said in relation to the fifth and sixth issues raised by the previous appellants concerning the existence of rational indications of the commission of an offence which violate the ius in bello
, namely the norms of International Humanitarian Law that must be observed by belligerents.
[emphasis in original]
The Court upheld the appeal against the order of 23 October 2009 by the Third Section of the Criminal Chamber of the Spanish National Court, which declared the termination of the proceedings, and held that “the proceedings must continue, and the outstanding preparatory enquiries must be undertaken, as well as any others arising from the clarification of the events under investigation.”