Additional Protocol I
Article 57(2)(a) of the 1977 Additional Protocol I provides that, with respect to attacks, the following precautions shall be taken:
Those who plan or decide upon an attack shall:
i) do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection but are military objectives within the meaning of paragraph 2 of Article 52 and that it is not prohibited by the provisions of this Protocol to attack them.
Second Protocol to the Hague Convention for the Protection of Cultural Property
Article 7 of the 1999 Second Protocol to the Hague Convention for the Protection of Cultural Property states:
Without prejudice to other precautions required by international humanitarian law in the conduct of military operations, each Party to the conflict shall:
a) do everything feasible to verify that the objectives to be attacked are not cultural property protected under Article 4 of the Convention.
New Delhi Draft Rules
Article 8 of the 1956 New Delhi Draft Rules states:
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.
Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia
Paragraph 6 of the 1991 Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia requires that hostilities be conducted in accordance with Article 57 of the 1977 Additional Protocol I.
Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina
Paragraph 2.5 of the 1992 Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina requires that hostilities be conducted in accordance with Article 57 of the 1977 Additional Protocol I.
San Remo Manual
Paragraph 46(b) of the 1994 San Remo Manual provides: “In the light of the information available to them, those who plan, decide upon, or execute an attack shall do everything feasible to ensure that attacks are limited to military objectives.”
Argentina’s Law of War Manual (1989) states: “Those who plan or decide upon an attack shall, as far as possible, verify that the objectives to be attacked are not civilians, nor civilian objects, nor subject to special protection.”
Australia’s Defence Force Manual (1994) states: “Everything feasible [must be done] to verify that objects being attacked are military objectives.”
Australia’s LOAC Manual (2006) states that it is the duty of Australian Defence Force commanders to do “everything feasible to verify that objects being attacked are military objectives”.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Belgium’s Teaching Manual for Soldiers considers that an object can be attacked only when it can reasonably be considered to be a military objective and states that armed forces should not shoot first and check later.
Benin’s Military Manual (1995) states: “All necessary measures must be taken to verify that the target to be destroyed is a military objective.”
Burundi’s Regulations on International Humanitarian Law (2007) states that “belligerents are obliged to endeavour to verify that the envisaged object is well and truly a military objective”.
The Regulations also states: “The commander who prepares or decides [to launch] an operation must take all feasible measures to verify that the objectives to be targeted are military objectives and not civilians [or] civilian objects and do not benefit from special protection.”
Cameroon’s Instructor’s Manual (1992) requires that “those who plan or decide upon an attack do everything that is practically possible to verify that the targets to be attacked are military objectives”.
Cameroon’s Instructor’s Manual (2006) states:
It must be emphasized that [a responsibility of] command regarding the law of armed conflict and international humanitarian law is to:
- ensure respect for the principle of discrimination …
… [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.
Under the heading “Regulations regarding the Means and Methods of Attack”, the manual quotes Article 57(2)(a) of the 1977 Additional Protocol I concerning the verification of military objectives.
Canada’s LOAC Manual (1999) states: “Commanders, planners and staff officers have … to do everything feasible to verify that the objectives to be attacked are in fact legitimate targets and are not entitled to special protection under the LOAC.”
Canada’s LOAC Manual (2001) states in its chapter on targeting:
1. Under the LOAC commanders, planners and staff officers have the following obligations:
a. to do everything feasible to verify that the objectives to be attacked are in fact legitimate targets and are not entitled to special protection under the LOAC.
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:
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.
Central African Republic
The Central African Republic’s Instructor’s Manual (1999) states in Volume 3 (Instruction for non-commissioned officers studying for the level 1 and 2 certificates and for future officers of the criminal police): “All necessary measures must therefore be taken to verify that the target to be destroyed is a military objective.”
Côte d’Ivoire’s Teaching Manual (2007) provides in Book III, Volume 1 (Instruction of first-year trainee officers):
IV.1.1. Obligations in the planning of offensive actions
In the preparation of an attack, a combatant must:
- do everything in his power to verify that the target is a military objective. If there is doubt, he must abstain from attacking. The principle of distinction must guide the reflection.
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.
Croatia’s LOAC Compendium (1991) imposes a duty to “verify the military character of objectives and targets”.
Croatia’s Commanders’ Manual (1992) states: “The military character of the objective shall be verified by reconnaissance and target identification.”
Ecuador’s Naval Manual (1989) states: “All reasonable precautions must be taken to ensure that only military objectives are targeted.”
France’s LOAC Manual (2001) provides that those who plan or decide upon an attack must “verify that the objectives to be attacked are neither civilians nor civilian objects”.
Germany’s Military Manual (1992) states: “Before engaging an objective, every responsible military leader shall verify the military nature of the objective to be attacked.”
The Hellenic Navy’s International Law Manual (1995) provides: “In the course of planning and developing of military operations, all available data and evidence should be taken into account to ensure that selected targets are clearly of a military character.”
Hungary’s Military Manual (1992) imposes a duty to “verify the military character of objectives and targets”.
Israel’s Manual on the Laws of War (1998) states: “In any attack it is imperative to verify that the attack will be directed against a specific military target.”
Israel’s Manual on the Rules of Warfare (2006) states:
In any attack, it is a duty to ensure that:
- The attack is directed against specific military targets.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Italy’s LOAC Elementary Rules Manual (1991) states: “The military character of the objective shall be verified by reconnaissance and target identification.”
Kenya’s LOAC Manual (1997) states: “Everything feasible must be done to verify that the assigned target is a military objective.”
Madagascar’s Military Manual (1994) states: “The military character of an objective or target must be verified by reconnaissance and target identification.”
The Military Manual (1993) of the Netherlands states: “During the selection of targets and the preparation of attacks, it must be verified that the objectives to be attacked are neither civilians nor civilian objects but are military objectives.”
The Military Manual (2005) of the Netherlands states:
When selecting objectives and preparing to attack, the attacker must:
- make sure that the objectives to be attacked are not civilians, the civilian population or civilian objects, but military objectives.
New Zealand’s Military Manual (1992) states: “Those who plan or decide upon an attack shall do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection but are military objectives.”
Nigeria’s Military Manual (1994) states: “In the conduct of their attack, members of the armed forces shall only direct their attack at military objectives which must have been identified as such, clearly designated and assigned.”
The manual further states: “The military character of the objectives and targets must be verified and precaution taken not to attack non-military objectives like merchant ships, civilian aircraft etc.”
Peru’s IHL and Human Rights Manual (2010) states that commanders “must verify the military nature of an objective or a target through reconnaissance and identification”.
The Joint Circular on Adherence to IHL and Human Rights (1991) of the Philippines states: “Preparation fires may be delivered only against confirmed hostile positions prior to an attack or offensive action subject to the approval/direction of the brigade/equivalent level commander.”
The Philippines’ AFP Standing Rules of Engagement (2005) states:
8. General Rules for the Correct Use of Force towards Mission Accomplishment
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].
The Philippine Army Soldier’s Handbook on Human Rights and International Humanitarian Law (2006) provides:
During an 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.
South Africa’s LOAC Teaching Manual (2008) states:
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 manual also states:
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.
How to Determine Proper Targets
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.
Precautions in Attack
The following precautions are mandatory to all applications of combat power against hostile targets or forces:
- Verify the military nature of the target or objective.
- The factors to be considered when deciding whether a target is a legitimate target, are:
- Military Objectives
- Attacks shall be limited strictly to clearly identified and verified military objectives. ( Additional Protocol I article 52.1).
- Incidental or Collateral Damage
- … Due regard must be had to the principle of proportionality at all times and all feasible precautions must be taken to gather accurate intelligence and to ensure attacks are directed exclusively against military objectives.
Engagement and Retaliation Policy
- 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:
- The Military Necessity of Engaging a Target
. Is it a valid military objective?
[emphasis in original]
The manual further states:
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:
- To verify that the object of attack is a military objective, ie at all times to distinguish between the civilian population and combatants and between civilian objects and military objectives and to direct operations accordingly.
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.
Spain’s LOAC Manual (1996) states: “The military character of the objective shall be verified by reconnaissance and target identification.”
Spain’s LOAC Manual (2007) states that “those who plan or order an attack must do everything feasible to verify that the objectives that they are targeting are not civilians, civilian property or persons or objects subject to special protection”.
Sweden’s IHL Manual (1991) states: “The responsible commander shall verify that the attack is really directed against a military objective and not against [a] civilian population or civilian objects.”
Switzerland’s Basic Military Manual (1987) states: “Only specific and duly identified military objectives may be attacked.”
Switzerland’s Regulation on Legal Bases for Conduct during an Engagement (2005) states:
12.5 Precautionary measures
165 The following precautionary measures must be taken into consideration when making decisions, when issuing orders and in particular when conducting military operations.
166 Anyone who attacks:
1 must make sure that the objectives of the attack are neither civilians nor civilian objects.
[emphasis in original]
Togo’s Military Manual (1996) states: “All necessary measures must be taken to verify that the target to be destroyed is a military objective.”
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Pamphlet (1981) states: “Everything feasible must be done to verify that the target is a military objective.”
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states: “There is a legal obligation to do everything feasible to verify that the proposed target is not protected from attack and that it is a military objective.”
In its chapter on maritime warfare, the manual provides:
With respect to attacks, the following precautions shall be taken:
a. those who plan, decide upon or execute an attack must take all feasible measures to gather information which will assist in determining whether or not objects which are not military objectives are present in an area of attack;
b. in the light of the information available to them, those who plan, decide upon or execute an attack shall do everything feasible to ensure that attacks are limited to military objectives.
United States of America
The US Rules of Engagement for the Vietnam War (1971) stated:
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.
United States of America
The US Air Force Pamphlet (1976) states:
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.
United States of America
The US Naval Handbook (1995) states: “All reasonable precautions must be taken to ensure that only military objectives are targeted.”
United States of America
The US Naval Handbook (2007) states that “all reasonable precautions must be taken to ensure that only military objectives are targeted”.
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) states: “It is permitted to directly attack and bombard only military objectives. Before undertaking an attack, it is necessary to determine whether the objective to be attacked is identified as a military objective.”
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
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].
Denmark’s Military Criminal Code (2005) provides:
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].
Under Ireland’s Geneva Conventions Act (1962), as amended in 1998, any “minor breach” of the 1977 Additional Protocol I, including violations of Article 57(2)(a)(i), is a punishable offence.
Norway’s Military Penal Code (1902), as amended in 1981, provides:
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.
In 2007, in the Constitutional Case No. C-291/07, the Plenary Chamber of Colombia’s Constitutional Court stated:
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]
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:
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  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 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
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:
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 of customary international law.
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]
The Court also held:
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
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 referred to norms of IHL relevant to the case under review, including Article 57(2)(a)(i) of the 1977 Additional Protocol I.
The Report on the Practice of Egypt considers target verification to be an absolute obligation.
In 2006, in a report produced in response to a request by the Parliamentary Control Panel (parliamentary body controlling intelligence services) regarding incidents relating to the Iraq war and the fight against international terrorism, Germany’s Federal Government stated:
2. Activities of the BND [Bundesnachrichtendienst – Foreign Intelligence Service] in connection with the Iraq war
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).
f) Mission of the SET
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.
g) Development of the cooperation with US authorities
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:
1. No support to the offensive strategic aerial warfare …
2. No transfer of information of direct relevance to the tactical air and land warfare of the coalition troops …
3. Support to the coalition troops in avoiding attacks on objects protected under the international law of war.
On the basis of an interview with a senior officer of the armed forces, the Report on the Practice of Indonesia states that the Indonesian armed forces normally observe the precautions listed in Article 57 of the 1977 Additional Protocol I.
On the basis of a reply by Iraq’s Ministry of Defence to a questionnaire, the Report on the Practice of Iraq lists, among the precautions required in attack, the duty to ascertain the purely military nature of a target before taking any action against it.
Islamic Republic of Iran
The Report on the Practice of the Islamic Republic of Iran notes, with respect to the Iran-Iraq War: “Iranian authorities claimed that they did take all feasible precautions to verify that the objectives to be attacked were neither civilians nor civilian objects.”
The Report on the Practice of Israel states: “In principle, the IDF [Israel Defense Forces] recognizes a general obligation to verify the military nature of a target during pre-attack planning phases.”
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:
[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.
The Report on the Practice of Jordan notes that a booklet on the law of armed conflict prepared by the ICRC is used by military commanders. The booklet gives a list of principles to apply in military action, among which is the obligation to verify the military nature of an objective prior to the attack.
According to the Report on the Practice of Malaysia, the obligation to verify that targets are indeed military objectives forms part of Malaysian practice.
According to the Government of the Netherlands, commanders have to take all the precautionary measures required by Article 57 of the 1977 Additional Protocol I when carrying out an attack.
In 2005, Switzerland withdrew its reservations to Articles 57 and 58 of the 1977 Additional Protocol I.
Syrian Arab Republic
The Report on the Practice of the Syrian Arab Republic asserts that the Syrian Arab Republic considers Article 57 of the 1977 Additional Protocol I to be part of customary international law.
United Kingdom of Great Britain and Northern Ireland
In a report submitted to the UN Security Council on operations in the Gulf War, the United Kingdom asserted that UK commanders were briefed on the “locations and significance of sites of religious and cultural importance in Iraq” and that operations would take this information into account.
United Kingdom of Great Britain and Northern Ireland
In 2003, in reply to a written question in the House of Commons, the UK Minister of State for the Armed Forces, Ministry of Defence, wrote:
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.
United States of America
The Report on US Practice refers to an instance recorded during the Vietnam War in the early 1970s when a possible storage facility for air defence missiles, which would normally have been a high-priority target, was removed from the target list because it was “in a heavily populated area on the edge of Hanoi and the intelligence which indicated that it might be a storage facility was somewhat speculative”.
The Report on the Practice of Zimbabwe states that the provisions of Article 57 of the 1977 Additional Protocol I would be regarded as customary by Zimbabwe because of its adoption of the Geneva Conventions Amendment Act which incorporates the 1977 Additional Protocol I into Zimbabwe’s law and practice.
North Atlantic Treaty Organization
During the air campaign against the Federal Republic of Yugoslavia in 1999, NATO stated on various occasions that the targets attacked were exclusively military. According to NATO, the targets were carefully selected and continuously assessed to avoid collateral damage.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Kupreškić case
in 2000, the ICTY Trial Chamber stated that Article 57 of the 1977 Additional Protocol I was now part of customary international law, not only because it specified and fleshed out general pre-existing norms, but also because it did not appear to be contested by any State, including those that had not ratified the Protocol.
With reference to the Martens Clause, the Trial Chamber held:
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.
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:
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:
a) to do everything practicable to verify that the objectives to be attacked are military objectives.
Regarding the 15,000 feet minimum flying altitude adopted by NATO for part of the campaign, the Committee stated: “NATO air commanders have a duty to take practicable measures to distinguish military objectives from civilians and civilian objectives.”
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Galić case in 2003, the ICTY Trial Chamber stated:
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.
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces the following rules:
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.
In an appeal issued in October 1973, the ICRC urged all the belligerents in the conflict in the Middle East (Egypt, Iraq, Israel and the Syrian Arab Republic) to observe forthwith, in particular, the provisions of, inter alia
, Article 50(1)(a) of the draft Additional Protocol I, which stated in part: “Those who plan or decide upon an attack shall ensure that the objectives to be attacked are duly identified as military objectives.” (Proposal I). All governments concerned replied favourably.