Polytechnic University of the Philippines

A. Mabini Campus, Sta. Mesa, City of Manila

College of Law

THE BASIC PRINCIPLES OF IHL

Submitted by:
DATANGEL, ORLANDO
RAQUEL, MARLON
S.1JDHL311

Submitted to:
Judge Stanley Marvin J. Pengson
Humanitarian Law in Armed Conflicts

Dated:
17 MAY 2019
 THE PRINCIPLE OF PROPORTIONALITY

Rule 14. Proportionality in Attack

Rule 14. Launching an attack which may be expected to cause incidental loss of

civilian life, injury to civilians, damage to civilian objects, or a combination thereof,

which would be excessive in relation to the concrete and direct military advantage

anticipated, is prohibited.

Several States have stated that the expression “military advantage” refers to the

advantage anticipated from the military attack considered as a whole and not only

from isolated or particular parts of that attack. The relevant provision in the Statute of

the International Criminal Court refers to the civilian injuries, loss of life or damage

being excessive “in relation to the concrete and direct overall military advantage

anticipated” (emphasis added). The ICRC stated at the Rome Conference on the

Statute of the International Criminal Court that the addition of the word “overall” to

the definition of the crime could not be interpreted as changing existing law.

Australia, Canada and New Zealand have stated that the term “military advantage”

includes the security of the attacking forces.

Upon ratification of Additional Protocol I, Australia and New Zealand stated that they

interpreted the term “concrete and direct military advantage anticipated” as meaning

that there is a bona fide expectation that the attack would make a relevant and

proportional contribution to the objective of the military attack involved. According to

the Commentary on the Additional Protocols, the expression “concrete and direct”

military advantage was used in order to indicate that the advantage must be
“substantial and relatively close, and that advantages which are hardly perceptible

and those which would only appear in the long term should be disregarded”.

Numerous States have pointed out that those responsible for planning, deciding

upon or executing attacks necessarily have to reach their decisions on the basis of

their assessment of the information from all sources which is available to them at the

relevant time. These statements were generally made with reference to Articles 51–

58 of Additional Protocol I, without excluding their application to the customary rule.

THE PRINCIPLE OF PRECAUTION

Rule 15. Precautions in Attack

Rule 15. In the conduct of military operations, constant care must be taken to

spare the civilian population, civilians and civilian objects. All feasible precautions

must be taken to avoid, and in any event to minimize, incidental loss of civilian life,

injury to civilians and damage to civilian objects.

Feasibility of precautions in attack

The obligation to take all “feasible” precautions has been interpreted by many States

as being limited to those precautions which are practicable or practically possible,

taking into account all circumstances ruling at the time, including humanitarian and

military considerations.
Information required for deciding upon precautions in attack

Numerous States have expressed the view 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. At the same time, many military

manuals stress that the commander must obtain the best possible intelligence,

including information on concentrations of civilian persons, important civilian objects,

specifically protected objects, the natural environment and the civilian environment of

military objectives.

Rule 16. Target Verification

Rule 16. Each party to the conflict must do everything feasible to verify that

targets are military objectives.

Rule 17. Choice of Means and Methods of Warfare

Rule 17. Each party to the conflict must take all feasible precautions in the choice

of means and methods of warfare with a view to avoiding, and in any event to

minimizing, incidental loss of civilian life, injury to civilians and damage to civilian

objects.
The duty to take all feasible precautions in the choice of means and methods of

warfare is set forth in Article 57(2)(a)(ii) of Additional Protocol I, to which no relevant

reservations have been made.

Examples of the application of this rule include considerations about the timing of

attacks, avoiding combat in populated areas, the selection of means of warfare

proportionate to the target, the use of precision weapons and target selection. In

addition, Rule 21 sets out a specific requirement with respect to target selection.

Rule 18. Assessment of the Effects of Attacks

Rule 18. Each party to the conflict must do everything feasible to assess whether

the attack may be expected to cause incidental loss of civilian life, injury to

civilians, damage to civilian objects, or a combination thereof, which would be

excessive in relation to the concrete and direct military advantage anticipated.

The duty to do everything feasible to assess whether the attack may be expected to

cause excessive incidental damage is set forth in Article 57(2)(a)(iii) of Additional

Protocol I, to which no relevant reservations have been made.

Rule 19. Control during the Execution of Attacks

Rule 19. Each party to the conflict must do everything feasible to cancel or

suspend an attack if it becomes apparent that the target is not a military objective

or that the attack may be expected to cause incidental loss of civilian life, injury to
civilians, damage to civilian objects, or a combination thereof, which would be

excessive in relation to the concrete and direct military advantage anticipated.

The obligation to do everything feasible to cancel or suspend an attack if it becomes

apparent that the target is not a military objective or that the attack may be expected

to cause excessive incidental damage is set forth in Article 57(2)(b) of Additional

Protocol I, to which no relevant reservations have been made. Upon ratification of

Additional Protocol I, the United Kingdom stated that this obligation only applied to

“those who have the authority and practical possibility to cancel or suspend the

attack”.

Rule 20. Advance Warning

Rule 20. Each party to the conflict must give effective advance warning of attacks

which may affect the civilian population, unless circumstances do not permit.

As the rule indicates, State practice considers that a warning is not required when

circumstances do not permit, such as in cases where the element of surprise is

essential to the success of an operation or to the security of the attacking forces or

that of friendly forces. Necessary speed of response is another consideration cited in

practice as relevant to determining the feasibility of warnings.

Furthermore, the rule provides that warnings must only be given of attacks which

may affect the civilian population. Hence, the UK Military Manual considers that no

warning is required if no civilians are left in the area to be attacked. The US Air Force
Pamphlet states that no warning is required if civilians are unlikely to be affected by

the attack.

Some practice was found to interpret the requirement that a warning be “effective”.

The United States, in particular, has stated that a warning need not be specific and

may be general in order not to endanger the attacking forces or the success of their

mission. It has also stated that such a general warning can consist of a blanket alert

delivered by broadcast advising the civilian population to stay away from certain

military objectives.

State practice indicates that all obligations with respect to the principle of distinction

and the conduct of hostilities remain applicable even if civilians remain in the zone of

operations after a warning has been issued. Threats that all remaining civilians

would be considered liable to attack have been condemned and withdrawn.

Rule 21. Target Selection

Rule 21. When a choice is possible between several military objectives for

obtaining a similar military advantage, the objective to be selected must be that

the attack on which may be expected to cause the least danger to civilian lives

and to civilian objects.

The United States has emphasized that the obligation to select an objective the

attack on which may be expected to cause the least danger to civilian lives and to

civilian objects is not an absolute obligation, as it only applies “when a choice is

possible” and thus “an attacker may comply with it if it is possible to do so, subject to
mission accomplishment and allowable risk, or he may determine that it is impossible

to make such a determination”.