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Proportionality and precautions in attack: The reverberating effects of using explosive weapons in populated areas

Published online by Cambridge University Press:  27 January 2017

Isabel Robinson  and
Ellen Nohle
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Abstract

During an armed conflict, the use of explosive weapons with wide area effects in populated areas has a devastating impact on civilians. Less visible than the direct effects of explosive weapons, but equally devastating, are the reverberating effects of the use of explosive weapons in populated areas. While there is growing consensus that parties to an armed conflict are legally obliged to take into account the reasonably foreseeable reverberating effects of an attack, particularly for the purposes of the rules on proportionality and precautions in attack, the precise scope of this obligation remains unclear. After setting out the legal arguments in support of the position that reasonably foreseeable reverberating effects must be taken into account, this article goes on to examine how such effects should be evaluated and how they must be avoided or minimized.

Keywords

International humanitarian lawconduct of hostilitiesexplosive weapons in populated areasproportionalityfeasible precautionsreverberating effects
Type
The law
Information
International Review of the Red Cross , Volume 98 , Issue 901: War in cities , April 2016 , pp. 107 - 145
Copyright
Copyright © icrc 2017 

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References

1 Explosive weapons with wide area effects include: (1) weapons that employ an individual munition with a large destructive radius – i.e., with large blast and fragmentation range or effect (such as large bombs or missiles); (2) weapon systems with inaccurate delivery systems (such as unguided indirect fire weapons, including artillery and mortars); and (3) weapon systems that are designed to deliver multiple munitions over a wide area (for example, multi-barrel rocket launchers).

2 “Populated area” is synonymous with “concentration of civilians”, which is defined under international humanitarian law (IHL) as “a city, town, village or other area containing a similar concentration of civilians or civilian objects”. See Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3, 8 June 1977 (entered into force 7 December 1978) (AP I), Art. 51(5)(4). See also ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, report prepared by the ICRC for the 32nd International Conference of the Red Cross and Red Crescent, Geneva, 2015 (2015 Challenges Report), p. 49.

3 Schmitt, Michael N., “Wired Warfare: Computer Network Attack and Jus in Bello ”, International Review of the Red Cross, Vol. 84, No. 846, 2002, p. 392 Google Scholar.

4 See, for example, ICRC, Urban Services during Protracted Armed Conflict: A Call for a Better Approach to Assisting Affected People, Geneva, 2015 (Urban Services Report), pp. 21–32 Google Scholar.

5 Ibid .

6 See, for example, Walid Doleh, Warren Piper, Abdel Qamhieh and Kamel al Tallaq, Health and Welfare in Iraq After the Gulf Crisis: An In-depth Assessment, report by the International Study Team, Electrical Facilities Survey, October 1991; William Arkin, “Tactical Bombing of Iraqi Forces Outstripped Value of Strategic Hits, Analyst Contends”, Aviation Week and Space Technology, 27 January 1992, cited in Crawford, James, “The Law of Noncombatant Immunity and the Targeting of National Electrical Power Systems”, Fletcher Forum of World Affairs, Vol. 21, No. 2, 1997, p. 110 Google Scholar.

7 See, for example, Droege, Cordula, “Get Off My Cloud: Cyber Warfare, International Humanitarian Law and the Protection of Civilians”, International Review of the Red Cross, Vol. 94, No. 886, 2012, pp. 572CrossRefGoogle Scholar ff.

8 Sassòli, Marco and Cameron, Lindsey, “The Protection of Civilian Objects: Current State of the Law and Issues de Lege Ferenda ”, in Ronzitti, Natalino and Venturini, Gabriella (eds), The Law of Air Warfare: Contemporary Issues, Eleven International Publishing, Utrecht, 2006, p. 65Google Scholar; Schmitt, Michael N. and Widmar, Eric W., “‘On Target’: Precision and Balance in the Contemporary Law of Targeting”, Journal of National Security Law and Policy, Vol. 7, No. 3, 2014 Google Scholar; Rowe, Peter, “Kosovo 1999: The Air Campaign – Have the Provisions of Additional Protocol I Withstood the Test?”, International Review of the Red Cross, Vol. 82, No. 837, 2000, p. 152 Google Scholar; Schmitt, Michael N. (ed.), Tallinn Manual on the International Law Applicable to Cyber Warfare, Cambridge University Press, Cambridge, March 2013 (Tallinn Manual), p. 160CrossRefGoogle Scholar (prepared by the International Group of Experts at the Invitation of the NATO Cooperative Cyber Defence Centre of Excellence). It should be noted that the Commentary on the Harvard Humanitarian Policy and Conflict Research Manual on International Law Applicable to Air and Missile Warfare, Harvard University, 2010 (Commentary on the AMW Manual), indicates that “the issue is not entirely settled” (M. N. Schmitt and E. W. Widmar, “‘On Target’”, above, p. 405). See also Harvard Humanitarian Policy and Conflict Research Manual on International Law Applicable to Air and Missile Warfare, Harvard University, 2009 (AMW Manual). However, according to Schmitt – who was part of the process for both the Tallinn Manual and the AMW Manual – the Tallinn Manual is the better view. See Schmitt, Michael N., “Rewired Warfare: Rethinking the Law of Cyber Attack”, International Review of the Red Cross, Vol. 96, No. 893, 2014, pp. 202–205 CrossRefGoogle Scholar.

9 ICRC, Explosive Weapons in Populated Areas: Humanitarian, Legal, Technical and Military Aspects, Geneva, 2015 (Expert Meeting Report), p. 23Google Scholar (this report is a product of the Expert Meeting held in Chavannes-de-Bogis, Switzerland, on 24–25 February 2015); US Department of Defence, Law of War Manual, 2015 (US Law of War Manual), p. 342, note 158, citing the US Air Force Pamphlet, 1976; US Department of the Army, Counterinsurgency, FM 3-24/ MCWP 3-33.5, 2006 (US Counterinsurgency Manual), § 7–36; UK Ministry of Defence, The Joint Service Manual of the Law of Armed Conflict, JSP 383, 2004, amended in 2013 (UK Joint Service Manual), para. 5.33.4; “Response to the IHL Questionnaire from Switzerland”, CCW/GGE/XI/WG.1/WP.13, 3 August 2005, § 15; “Response to the IHL Questionnaire from Norway”, CCW/GGE/XI/WG.1/WP.5, 29 July 2005, § 19; “Response to the IHL Questionnaire from Austria”, CCW/GGE/XI/WG.1/WP.14, 4 August 2005, § 11; “Response to the IHL questionnaire from Czech Republic”, CCW/GGE/XIII/WG.1/WP.2, 10 February 2006; “Response from Sweden to Document CCW/GGE/X/WG.1/WP.2”, CCW/GGE/XI/WG.1/WP.8, 29 July 2005; Statement by Ireland on the McCormack Report, CCW Thirteenth Meeting of the Group of Government Experts on ERW, March 2006, available at: www.unog.ch/__80256ee600585943.nsf/(httpPages)/eaef687b33e754b8c12573cf0074929e?OpenDocument&ExpandSection=1 (all internet references were accessed in October 2016).

10 Dinstein, Yoram, The Conduct of Hostilities under the Law of International Armed Conflict, 3rd ed., Cambridge University Press, Cambridge, 2016, p. 159CrossRefGoogle Scholar; Schmitt, Michael N., “The Law of Targeting”, in Wilmshurst, Elizabeth and Breau, Susan (eds), Perspectives on the ICRC Study on Customary International Humanitarian Law, Cambridge University Press, Cambridge, 2007, pp. 131Google Scholar, 159.

11 While the foreseeable reverberating effects of an attack using explosive weapons in populated areas are also relevant to the prohibition against indiscriminate attack, this article will focus solely on the relevance of reverberating effects in the interpretation and application of the rules on proportionality and precautions in attack. The relevance of the foreseeable reverberating effects of a cyber-attack in relation to the prohibition against indiscriminate attacks, among other rules, is referred to in the 2015 Challenges Report, above note 2, pp. 42–43.

12 AP I, Arts 48(1), 51(1), 51(2), 51(5)(b), 57; Henckaerts, Jean-Marie and Doswald-Beck, Louise (eds), Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005 (ICRC Customary Law Study), Rules 1, 7, 14, 15–21 CrossRefGoogle Scholar.

13 AP I, Art. 48(1); ICRC Customary Law Study, above note 12, Rules 1, 7.

14 AP I, Arts 51(2), 52(1); ICRC Customary Law Study, above note 12, Rules 1, 7.

15 AP I, Art. 51(4); ICRC Customary Law Study, above note 12, Rules 11, 12.

16 Under AP I, Article 51(5), area bombardment and disproportionate attacks are treated as particular forms of indiscriminate attacks.

17 AP I, Art. 51(5)(b); ICRC Customary Law Study, above note 12, Rule 14. The rule on proportionality in attack is also found in Article 3(8)(c) of the Protocol on Prohibitions on the Use of Mines, Booby-Traps and Other Devices as amended on 3 May 1996 (Amended Mines Protocol) annexed to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects, Geneva, 3 May 1996 (CCW), and Rule 102(b) of the San Remo Manual on International Law Applicable to Armed Conflicts at Sea, 12 June 1994, regarding naval blockades. See Doswald-Beck, Louise (ed.), San Remo Manual on International Law Applicable to Armed Conflicts at Sea, Cambridge University Press, Cambridge, 1995, p. 179CrossRefGoogle Scholar. It should be noted that violation of the rule on proportionality in attack constitutes a war crime in both international and non-international armed conflicts. See AP I, Art. 85(3)(b); Rome Statute of the International Criminal Court, UN Doc. A/CONF. 183/9, 17 July 1998 (entered into force 1 July 2002), Art. 8(2)(b)(iv); ICRC Customary Law Study, above note 12, Rule 156.

18 Jachec-Neale, Agnieszka, The Concept of Military Objectives in International Law and Targeting Practice, Routledge, New York, 2016, p. 69Google Scholar; Boothby, William H., The Law of Targeting, Oxford University Press, Oxford, 2012, pp. 104–105 CrossRefGoogle Scholar.

19 See Royal Army of the Netherlands, The Humanitarian Law of War: A Manual, VS 27-41, unofficial English translation available at the ICRC library, September 2005, para. 0546: “When attacking mixed objects …, it must be carefully considered whether the military advantage expected from eliminating the military element of the mixed objective outweighs the damage done to the civilian population, by damaging or destroying the civilian element of the mixed object or ending its civilian function”; Guymon, CarrieLyn D. (ed.), US Digest of United States Practice in International Law 2014, US Department of State, Office of the Legal Adviser, 2014, p. 737Google Scholar, where it is stated: “When undertaking a proportionality evaluation, parties to an armed conflict should consider the risk of unintended or cascading effects on civilians and civilian objects in launching a particular cyber attack, as well as the harm to civilian uses of dual-use infrastructure that may be the target of an attack”; US Joint Chiefs of Staff, Joint Targeting, Joint Publication 3–60, 31 January 2013 (US Joint Targeting Manual), p. A-5, mentions that: “If the attack is directed against dual-use objects that might be legitimate military targets but also serve a legitimate civilian need (e.g., electrical power or telecommunications), then this factor must be carefully balanced against the military benefits when making a proportionality determination.” See also Department of Homeland Security and US Coast Guard, Department of the Navy, Office of the Chief of Naval Operations and Headquarters, The Commander's Handbook on the Law of Naval Operations, NWP 1-14M, July 2007 (US Naval Handbook), para. 8.3, and the discussion of coalition practice in the Gulf War in Greenwood, Christopher, “Customary International Law and the First Geneva Protocol of 1977 in the Gulf Conflict”, in Rowe, Peter (ed.), The Gulf War 1990–91 in International and English Law, Routledge, London, 1993, pp. 63 ff., 73, 79Google Scholar.

20 Tallinn Manual, above note 8, p. 135; W. H. Boothby, above note 18, pp. 104–105; Shue, Henry and Wippman, David, “Limiting Attacks on Dual-Use Facilities Performing Indispensable Civilian Functions”, Cornell International Law Journal, Vol. 35, No. 3, 2002, p. 565 Google Scholar; Noam Lubell, “Current Challenges with Regard to the Notion of Military Objective – Legal and Operational Perspectives”, in Conduct of Hostilities: The Practice, the Law and the Future, International Institute of Humanitarian Law, September 2014, p. 84; M. N. Schmitt and E. W. Widmar, above note 8, p. 393; M. Sassòli and L. Cameron, above note 8, para. 57 ff.

21 Laurent Gisel, “Relevant Incidental Harm for the Proportionality Principle”, Urban Warfare, Proceedings of the 16th Bruges Colloquium, 15–16 October 2015, p. 123.

22 AP I, Art. 57(2)(a)(i); ICRC Customary Law Study, above note 12, Rule 16.

23 AP I, Art. 57(2)(a)(ii); ICRC Customary Law Study, above note 12, Rule 15.

24 AP I, Art. 57(2)(a)(iii); ICRC Customary Law Study, above note 12, Rules 17 and 18.

25 AP I, Art. 57(2)(b); ICRC Customary Law Study, above note 12, Rule 19. Note that Rule 19 does not refer to objects “that are subject to special protection”. Additional precautionary requirements are set out in AP I, Articles 57(2)(c), 57(3) and 57(4), and ICRC Customary Law Study, above note 12, Rules 20 and 21.

26 Commentary to ICRC Customary Law Study, above note 12, Rule 15.

27 Dörmann, Knut, “Obligations of International Humanitarian Law”, Military and Strategic Affairs, Vol. 4, No. 2, 2012, p. 12 Google Scholar.

28 There are four such rules: (1) the rule on proportionality; (2) the obligation to take feasible precautionary measures in the choice of means and methods of attack in order to avoid and in any event minimize “expected” incidental damage; (3) the obligation to refrain from launching an attack that may be expected to violate the rule on proportionality, including to do everything feasible to assess whether the attack may be expected to violate this rule; and (4) the obligation to cancel or suspend an attack if it becomes apparent that the attack may be expected to violate the rule on proportionality.

29 See ICRC Customary Law Study, above note 12, Rule 14. See also Y. Dinstein, above note 10, p. 150.

30 2015 Challenges Report, above note 2, pp. 42, 52; Expert Meeting Report, above note 9, p. 21; ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, report prepared by the ICRC for the 28th International Conference of the Red Cross and Red Crescent, Geneva, 2003, p. 12; ICRC, Existing Principles and Rules of International Humanitarian Law Applicable to Munitions that May Become Explosive Remnants of War, Working Paper submitted to the CCW Group of Government Experts, CCW/GGE/XI/WG.1/WP.7, Geneva, 28 July 2005. See also K. Dörmann, above note 27, p. 17; Brehm, Maya, “International Humanitarian Law and the Protection of Civilians from the Effects of Explosive Weapons”, in Harvey, Caroline, Summers, James and White, Nigel D. (eds), Contemporary Challenges to the Laws of War: Essays in Honour of Professor Peter Rowe, Cambridge University Press, Cambridge, 2014, p. 254 Google Scholar; Barber, Rebecca J., “The Proportionality Equation: Balancing Military Objectives with Civilian Lives in the Armed Conflict in Afghanistan”, Journal of Conflict & Security Law, Vol. 15, 2010, p. 480 CrossRefGoogle Scholar; Droege, Cordula and Tougas, Marie-Louise, “The Protection of the Natural Environment in Armed Conflict – Existing Rules and Need for Further Legal Protection”, Nordic Journal of International Law, Vol. 82, No. 1, 2013, p. 30 CrossRefGoogle Scholar; Roscini, Marco, Cyber Operations and the Use of Force in International Law, Oxford University Press, Oxford, 2014, p. 221 CrossRefGoogle Scholar.

31 See L. Gisel, above note 21, p. 125.

32 Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, Vol. 1155, Art. 31(1).

33 Bothe, Michael, Partsch, Karl Josef and Solf, Waldemar A., New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949, Martinus Nijhoff, Leiden, 2013 Google Scholar, para. 2.6.2.

34 C. Droege, above note 7, p. 572.

35 M. Sassòli and L. Cameron, above note 8, p. 65 (emphasis added).

36 Oxford Dictionary of English, 3rd ed., Oxford University Press, Oxford, 2010, available at: www.oxforddictionaries.com/definition/english/expect.

37 AP I, Art. 51(1).

38 AP I, Art. 57(1); ICRC Customary Law Study, above note 12, Rule 15. According to Kalshoven: “This should be taken literally: total avoidance of damage to the civilian population is the ideal standard that combatants should seek to attain in all cases.” Kalshoven, Frits, Constraints on the Waging of War: An Introduction to International Humanitarian Law, 4th ed., Cambridge University Press, Cambridge, 2011, p. 113CrossRefGoogle Scholar.

39 See M. Roscini, above note 30, p. 221, note 376.

40 See “Response from Switzerland to Document CCW/GGE/X/WG.1/WP.2,” CCW/GGE/XI/WG.1/WP.13, 3 August 2005, § 15. See also “Response from Norway to the Document CCW/GGE/X/WG.1/WP.2,” CCW/GGE/XI/WG.1/WP.5, 29 July 2005, § 18 (“a military commander, in his assessment of the proportionality between the military necessity of launching the attack and the humanitarian consequences caused by the attack, must take into consideration both the humanitarian concerns related to the direct impact of the munitions (due to the wide dispersal and in some cases large number of submunitions contained in the bomb), as well as the humanitarian effects caused by unexploded ordnance remaining on the ground after the attack”); “Response from Sweden to Document CCW/GGE/X/WG.1/WP.2,” CCW/GGE/XI/WG.1/WP.8, 29 July 2005 § 4 (“It may be argued that a cluster bomb with submunitions that have a high dud rate and is used in populated areas is likely to create a disproportionate suffering for the civilian population compared with the military advantage from the use of such a weapon. Furthermore, it could be argued that a cluster bomb with a large ‘foot print’ can be considered to be indiscriminate if used in a populated area.”); Intervention by Ireland, CCW Review Conference, Main Committee II – Explosive Remnants of War, 9 November 2006 (“Ireland has been concerned to ensure that parties to armed conflict pay due regard to the foreseeable long term effects on civilians of the use of particular weapon systems when considering means and methods of attack.”). See also McCormack, Tim and Mtharu, Paramdeep, Expected Civilian Damage and The Proportionality Equation: International Humanitarian Law and Explosive Remnants of War, Asia Pacific Centre for Military Law, University of Melbourne Law School, 2006, pp. 12–13 Google Scholar, available at: http://apcml.org/uploads/c0a7d9021926fd6fa4aa87d4737e9ae9cabd06f2.pdf.

41 See Third Review Conference of the High Contracting Parties to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, Final Declaration, CCW/CONF.III/11, Part II, 17 November 2006, p. 4 (Final Declaration of the 3rd Review Conference). The Final Declaration was reached on the basis of consensus between seventy-six States Parties. Available at: www.unog.ch/80256EE600585943/(httpPages)/1DB747088014E6D7C12571C0003A0818?OpenDocument.

42 Expert Meeting Report, above note 9, p. 23.

43 For example, see UK Joint Service Manual, above note 9, para. 5.33.4 (in deciding whether an attack would be proportionate, commanders must bear in mind the “foreseeable effects of the attack”; the Manual gives the example of an attack on a military fuel storage depot where there is a foreseeable risk of the burning fuel flowing into a civilian residential area and causing injury to the civilian population); US Law of War Manual, above note 9, p. 342, note 158, citing the US Air Force Pamphlet, 1976 (“International law does not require that a weapon's effects be strictly confined to the military objectives against which it is directed, but it does restrict weapons whose foreseeable effects result in unlawful disproportionate injury to civilians or damage to civilian objects.”); Ministry of Defence of Spain, Orientaciones: El derecho de los conflictos armados, OR7-004, 18 March 1996, Vol. 1, para. 2.5 (“An attack is prohibited if, during the planning phase, the available information makes it foreseeable that the damage to the civilian population and/or to civilian objects which the attack will cause is excessive in relation to the military advantage anticipated from the attack as a whole.”).

44 US Counterinsurgency Manual, above note 9, § 7–36.

45 2015 Challenges Report, above note 2, pp. 42, 52; Final Declaration of the 3rd Review Conference, above note 41. See also K. Dörmann, above note 27, p. 17; M. Brehm, above note 30, p. 254; R. J. Barber, above note 30, p. 480; C. Droege and M.-L. Tougas, above note 30, p. 30; M. Roscini, above note 30, p. 221.

46 As noted above, the rules of proportionality and precautions in attack, as well as other conduct of hostilities rules, impose an obligation at the time of the attack and not in hindsight. See, for example, F. Kalshoven, above note 38, pp. 101, 105, 185.

47 See Final Declaration of the 3rd Review Conference, above note 41, p. 4.

48 See, for example, Ministry of Defence of Spain, above note 43, Vol. 1, para. 2.5 (“An attack is prohibited if, during the planning phase, the available information makes it foreseeable that the damage to the civilian population and/or to civilian objects which the attack will cause is excessive in relation to the military advantage anticipated from the attack as a whole.”); UK Joint Service Manual, above note 9, para. 5.33.4 (commanders must bear in mind the “foreseeable effects of attack”); US Law of War Manual, above note 9, p. 342, note 158, citing the 1976 Air Force Pamphlet (“International law does not require that a weapon's effects be strictly confined to the military objectives against which it is directed, but it does restrict weapons whose foreseeable effects result in unlawful disproportionate injury to civilians or damage to civilian objects.” (emphasis added)).

49 Inter-American Commission on Human Rights, Third Report on the Human Rights Situation in Colombia, OEA/Ser.L/V/II.102, Doc. 9, Rev. 1, 26 February 1999, para. 79.

50 Michael N. Schmit, Heather A. Harrison Dinnis and Thomas C. Wingfield, Computers and War: The Legal Battlespace, Background Paper prepared for the Informal High-Level Expert Meeting on Current Challenges to International Humanitarian Law, Cambridge, 25–27 June 2004, p. 9, available at: www.hpcrresearch.org/sites/default/files/publications/schmittetal.pdf, cited in M. Roscini, above note 30, p. 221.

51 See Christopher Greenwood, Observations dated 13 November 2003 circulated by the United Kingdom Delegation to the CCW Group of Governmental Experts, 17–24 November 2003, cited in Boothby, William H., Cluster Bombs: Is There a Case for New Law?, Occasional Paper Series, Program on Humanitarian Policy and Conflict Research, Harvard University, 2005, p. 28Google Scholar.

52 Commentary on the AMW Manual, above note 8, p. 91 (emphasis added). See also M. Roscini, above note 30, p. 221. It should be noted, however, that in relation to reverberating effects, the AMW Manual specifically endorses an approach based on reasonable foreseeability, stating that “indirect effects cannot be taken into account if they are too remote or cannot be reasonably foreseen”.

53 Ibid .

54 In M. Bothe, K. J. Partsch and W. A. Solf, above note 33, pp. 351–352, the authors note that the decision on “whether those effects are excessive” will “involve a balancing of different values which are difficult to compare” and thus “the judgment must be subjective”. Yet, “[d]espite the impossibility of quantifying the factors of the equation, a plain and manifest breach of the rule will be recognizable”.

55 US Law of War Manual, above note 9, § 5.12.4. See also § 2.4.1.2 (“Under the law of war, judgments of proportionality often involve difficult and subjective comparisons.”).

56 ICRC Commentary to AP I, § 2208. See also ICRC Commentary to AP I, § 1978.

57 See Sassòli, Marco, “Autonomous Weapons and International Humanitarian Law: Advantages, Open Technical Questions and Legal Issues to be Clarified”, International Law Studies, Vol. 90, 2014, p. 335 Google Scholar.

58 Y. Dinstein, above note 10, p. 159. See also Schmitt, Michael. N. and Thurnher, Jeffrey S., “‘Out of the Loop’: Autonomous Weapon Systems and the Law of Armed Conflict”, Harvard National Security Journal, Vol. 4, 2013, p. 256 Google Scholar (“the ‘quantification’ of the military value of a target in terms of collateral damage does not require surgical precision. Rather, the test is one of reasonableness.”); Rogers, A. P. V., Law on the Battlefield, 3rd ed., Manchester University Press, Manchester and New York, 2012, p. 151Google Scholar (“the test must be one of reasonableness”). See also 2015 Challenges Report, above note 2, p. 52.

59 Canada, Office of the Judge Advocate General, Law of Armed Conflict at the Operational and Tactical Levels, Joint Doctrine Manual, 13 August 2001, § 418. See also Brian J. Bill (ed.), Law of War Deskbook, US Army, International and Operational Law Department, 2010, pp. 140–141: “In judging a commander's actions one must look at the situation as the commander saw it in light of all circumstances. The question of reasonableness, however, ensures an objective standard that must be met as well. In this regard, two questions seem relevant. Did the commander gather a reasonable amount of information to determine whether the target was a military objective and that the incidental damage would not be disproportionate? Second, did the commander act reasonably based on the gathered information? Of course, factors such as time, available staff, and combat conditions affecting the commander must also factor into the analysis.”

60 F. Kalshoven, above note 38, p. 115 (the proportionality assessment is “not entirely left to the subjective judgment of the attacker”).

61 ICTY, Prosecutor v. Stanislav Galić, Case No. IT-98-29, Judgment (Trial Chamber), 30 November 2003, § 58. This test has been endorsed by a number of commentators: see Marco Roscini, above note 30, p. 228; Paolo Benvenuti, “The ICTY Prosecutor and the Review of the NATO Bombing Campaign against the Federal Republic of Yugoslavia”, European Journal of International Law, Vol. 12, No. 3, 2001, p. 517; Ian Henderson, The Contemporary Law of Targeting: Military Objectives, Proportionality and Precautions in Attack under Additional Protocol I, Martinus Nijhoff, Leiden, 2009, p. 222. A similar test was also set out in ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign against the Federal Republic of Yugoslavia, 11 December 2002, § 50. This approach in the report is supported by W. H. Boothby, above note 18, p. 96.

62 Several authors refer to the ICTY case law and the Rome Statute: for example, Y. Dinstein, above note 10, p. 159; W. H. Boothby, above note 18, pp. 98–97.

63 M. Sassòli and L. Cameron, above note 8, p. 64.

64 Cannizzaro, Enzo, “Proportionality in the Law of Armed Conflict”, in Gaeta, Paola and Clapham, Andrew (eds), The Oxford Handbook of International Humanitarian Law, Oxford University Press, Oxford, 2014, p. 340 Google Scholar.

65 M. Sassòli and L. Cameron, above note 8, p. 65. Likewise, Shue and Wippman contend that “the effects of large-scale infrastructure attacks are clear and foreseeable”, and that “the proportionality principle obliges states to make at least a good faith effort to factor indirect effects into their targeting decisions”. See H. Shue and D. Wippman, above note 20, pp. 570–571.

66 State of Israel, The 2014 Gaza Conflict (7 July–26 August 2014): Factual and Legal Aspects, May 2015, pp. 49, 317.

67 Maresca, Louis and Mitchell, Eleanor, “The Human Costs and Legal Consequences of Nuclear Weapons Under International Humanitarian Law”, International Review of the Red Cross, Vol. 97, No. 899, 2015, pp. 623–626 CrossRefGoogle Scholar.

68 Working Paper submitted by the ICRC, CCW/GGE/XI/WG.1/WP.7, Geneva, 28 July 2005, § 21. According to Tim McCormack, who presented at the CCW meetings on ERW, “[w]henever the use of weapons likely to cause ERW is contemplated in residential areas or in areas otherwise known to be frequented by the civilian population, assessments of expected civilian damage ought to take account of the consistent conclusion of numerous reports and studies carried out by international and non-governmental organisations, many of which include data on percentages of munitions which fail to explode and the effect of such unexploded ordnance on civilian populations”. See T. McCormack and P. Mtharu, above note 40, § 27. Further, McCormack states: “If such weapons are to be deployed in residential areas or on arable farmland then the expected failure rate and consequent expected ERW problem ought to be factored into the proportionality equation.” Report of presentation by Professor Tim McCormack, CCW/GGE/XI/WG.1/WP.19, 25 August 2005, § 11.

69 Louis Maresca, “Cluster Munitions: Moving Toward Specific Regulation”, UNIDIR Disarmament Forum, United Nations Institute for Disarmament Research, 2006, p. 29.

70 See Final Declaration of the 3rd Review Conference, above note 41.

71 Statement by Ireland, CCW 3rd Review Conference, Main Committee II, 9 November 2006. According to the New Zealand delegation at a CCW meeting in June 2003, “through the improved collection of information on weapons used, clearance operations and civilian casualties from mines and ERW including submunitions, we are beginning to know more about when the greatest numbers of civilian casualties actually occur and would expect that this information is also available to militaries for informing the conduct of their military operations”.

72 ICRC, Expert Meeting: Humanitarian, Military, Technical and Legal Challenges of Cluster Munitions, report, Montreux, Switzerland, 18–20 April 2007, p. 60.

73 W. Arkin, above note 6, p. 110.

74 J. Crawford, above note 6, p. 110.

75 UNICEF, “News Note: Millions of Children in Syria at High Risk of Disease amid Water Scarcity and Summer Heat”, 10 July 2015, cited in Urban Services Report, above note 4, p. 31.

76 Stone, Randy W., “Protecting Civilians during Operation Allied Force: The Enduring Importance of Proportional Force and NATO's Use of Armed Force in Kosovo”, Catholic University Law Review, Vol. 50, No. 2, 2001 Google Scholar, cited in H. Shue and D. Wippman, above note 20, p. 565. Carbon fibre bombs were also used to attack power distribution facilities in Iraq on the basis that they were designed to temporarily incapacitate rather than destroy. See Human Rights Watch, Off Target: The Conduct of the War and Civilian Casualties in Iraq, New York, 2003, p. 43Google Scholar.

77 Urban Services Report, above note 4, pp. 28–32; 2015 Challenges Report, above note 2, p. 52. See also Expert Meeting Report, above note 9, p. 23.

78 Ibid ., p. 15.

79 Some multinational forces also monitor civilian casualties through civilian casualty tracking mechanisms. See Ibid., p. 6.

80 US Chairman of the Joint Chiefs of Staff, No-Strike and the Collateral Damage Estimation Methodology, Instruction, CJCSI 3160.01A, 2012, p. D-1. In addition, the Instruction states: “The CDM is not an exact science. The supporting technical data and processes of the methodology are derived from physics-based computer models which generate statistical results, weapons test data, and operational combat observations.” Ibid., p. D-2.

81 ICRC, A Guide to the Legal Reviews of New Weapons, Means and Methods of Warfare: Measures to Implement Article 36 of Additional Protocol I of 1977, Geneva, 2006, p. 15Google Scholar.

82 Ibid ., p. 23.

83 Urban Services Report, above note 4, pp. 21–28; World Health Organization, “WHO Warns of Increased Risk of Disease Epidemics in Syria and in Neighbouring Countries as Summer Approaches”, press release, 3 June 2013 (indicating that 35% of Syria's public hospitals were not functioning and in some areas, 70% of medical staff had fled the country), available at: www.emro.who.int/press-releases/2013/disease-epidemics-syria.html.

84 The CCW examined legal regulation of ERW from 2000 to 2006, with adoption of Protocol V on ERW in 2004.

85 Christopher Greenwood, Legal Issues Regarding Explosive Remnants of War, Working Paper submitted to the CCW Group of Governmental Experts, CCW/GGE/I/WP.10, 22 May 2002, § 23. The paper was presented by the UK delegation to the first of several Groups of Governmental Experts that led to negotiations on Protocol V.

86 Ibid .

87 Pakistan, Statement at the 11th session of the Group of Governmental Experts, CCW, 2 August 2005; Response from the United States of America, “Responses to Document CCW/GGE/X/WG.1/WP.2, Entitled IHL and ERW, Dated 8 March 2005”, CCW/GGE/XI/WG.1/WP.4, 25 July 2005, available at: http://repository.un.org/bitstream/handle/11176/256880/CCW_GGE_XI_WG.1_WP.4-EN.pdf?sequence=3&isAllowed=y.

88 Rizer, Kenneth, “Bombing Dual-Use Targets: Legal, Ethical and Doctrinal Perspectives”, Air & Space Power Journal, May 2001, p. 8Google Scholar.

89 Brazil noted that the proportionality rule applies if the remains of cluster munitions might continue to cause casualties long after the end of the armed conflict. Brazil stated that the “post-conflict” effects should be taken into account at the time of use. Response from Brazil, “Responses to Document CCW/GGE/X/WG.1/WP.2, Entitled IHL and ERW, Dated 8 March 2005”, CCW/GGE/XII/WG.1/WP.1, 12 September 2005, available at: http://courseweb.stthomas.edu/vowiebe/IHERWQuestionnaire%20and%20responses/Brazil050912.DOC.

90 Response from the Czech Republic, “Responses to Document CCW/GGE/X/WG.1/WP.2, Entitled IHL and ERW, Dated 8 March 2005”, CCW/GGE/XIII/WG.1/WP.2, 10 February 2006: “the use of munitions [that are] likely to fail … might contradict this principle [of proportionality], as the low reliability of such munitions could cause collateral damage exceeding the lawful level by increasing its probability and decreasing its military effectiveness”.

91 Norway stated that military commanders must take into consideration “both the humanitarian concerns related to the direct impact of the munitions as well as the humanitarian effects caused by unexploded ordnance remaining on the ground after the attack”. Response to the IHL Questionnaire from Norway, “States Parties’ Responses to the ‘International Humanitarian Law and ERW’ Questionnaire”, CCW/GGE/XI/WG.1/WP.5, 29 July 2005, § 19, available at: http://repository.un.org/handle/11176/256881.

92 Statement by Sweden on the McCormack Report, CCW 13th Meeting of the Group of Government Experts on ERW, March 2006 (“a cluster bomb with submunitions that have a high dud rate and is used in populated areas is likely to create disproportionate suffering for the civilian population compared with the military advantage from the use of such a weapon”).

93 Response to the IHL Questionnaire from Switzerland, “States Parties’ Responses to the ‘International Humanitarian Law and ERW’ Questionnaire”, CCW/GGE/XI/WG.1/WP.13, 3 August 2005, § 15, available at: http://repository.un.org/handle/11176/256892 (“proportionality assessment … must also take into account the foreseeable incidental long-term effects of an attack such as the humanitarian costs caused by duds becoming ERW” such that “ammunitions with high dud rates will influence the proportionality balance negatively and diminish the options of their use against legitimate military objectives”).

94 Statement by Ireland on the McCormack Report, CCW 13th Meeting of the Group of Government Experts on ERW, March 2006 (Ireland agreed with the statement in the Report that “after years of experiencing the effects of ERW, including the collation of data on the humanitarian effects of ERW, parties to an armed conflict cannot simply ignore the likely longer term effects of the use of cluster munitions in civilian residential areas or in other areas civilians are expected to return to after the cessation of hostilities”).

95 The same view was expressed by McCormack and Mtharu in their analysis of States’ responses. See Tim McCormack, Paramdeep B. Mtharu and Sarah Finnin, Report on States Parties’ Responses to the Questionnaire: International Humanitarian Law and Explosive Remnants of War, February 2006, p. 20.

96 Response to the IHL Questionnaire from Austria, “States Parties’ Responses to the ‘International Humanitarian Law and ERW’ Questionnaire”, CCW/GGE/XI/WG.1/WP.14, 4 August 2005, § 11, available at: http://repository.un.org/handle/11176/256893 (“the application of the principle [of proportionality] is not limited to the intended effects of an attack …. [T]he effects of duds – which are inherently incidental – seem to be covered by this provision”).

97 Statement by New Zealand at the CCW Meeting of Government Experts, June 2003 (“prior to an attack civilians may have fled to a safer area and it may be that immediately in the hours after an attack there is a low level of civilian casualties from ERW. A second possible scenario is where the presence of large numbers of military personnel limits the movement of civilians and it is some time before civilians have freedom of movement in an ERW-affected area.”).

98 ICTY, Final Report to the Prosecutor, above note 61, § 18.

99 L. Maresca and E. Mitchell, above note 67, p. 634.

100 A. P. V. Rogers, above note 58, p. 22.

101 It should be noted that there may be some reverberating effects which will take place immediately, such as secondary explosions resulting from an attack on a munitions storage facility. However, in most cases, reverberating effects take place subsequent to an attack.

102 See C. Droege, above note 7, p. 573. A similar approach is taken by McCormack and Mtharu in a Working Paper submitted to the Third Review Conference of the CCW: “Whenever the use of weapons likely to cause ERW is contemplated in residential areas or in areas otherwise known to be frequented by the civilian population, assessments of expected civilian damage ought to take account of the consistent conclusion of numerous reports and studies carried out by international and non-governmental organizations, many of which include data on percentages of munitions which fail to explode and the effect of such unexploded ordnance on civilian populations.” See Tim McCormack and Paramdeep B. Mtharu, “Expected Civilian Damage and the Proportionality Equation – To What Extent Should the Mid to Longer Term Consequences of Explosive Remnants of War be Taken into Consideration in the Proportionality Assessment”, Working Paper, CCW/CONF.III/WP.9, 15 November 2006, para. 27.

103 Gisel, Laurent, “Can the Incidental Killing of Military Doctors Never Be Excessive?”, International Review of the Red Cross, Vol. 95, No. 889, 2013, pp. 220–230 CrossRefGoogle Scholar.

104 2015 Challenges Report, above note 2, p. 41; Robin Geiss and Henning Lahmann, “Cyber Warfare: Applying the Principle of Distinction in an Interconnected Space”, Israel Law Review, Vol. 45, No. 3, 2012, p. 397, cited in M. Roscini, above note 30, p. 222. See also C. Droege, above note 7, p. 559 (arguing that “disrupting the function of certain systems by interfering with their underlying computer systems can amount to damage insofar as it impairs their usefulness”). According to the Group of Experts who drafted the Tallinn Manual, the notion of “damage to civilian objects” might, in certain circumstances, include deprivation of functionality. See Tallinn Manual, above note 8, p. 160.

105 C. Droege and M.-L. Tougas, above note 30, pp. 25–27; Hulme, Karen, “Taking Care to Protect the Environment Against Damage: A Meaningless Obligation?”, International Review of the Red Cross, Vol. 82, No. 879, 2010, pp. 677–678 Google Scholar. See also Laurent Gisel, The Conduct of Hostilities and International Humanitarian Law: Challenges of 21st century Warfare, Workshop Discussion Paper for Working Group 3, “Modern Warfare and the General IHL Principles Governing the Conduct of Hostilities”, International Law Association – Study Group, University of Leiden, 22–23 November 2013 (unpublished, on file with the author).

106 Oxford Dictionary of English, 3rd ed., Oxford University Press, Oxford, 2010, available at: www.oxforddictionaries.com/definition/english/injury.

107 Tallinn Manual, above note 8, p. 108.

108 See, for example, Lieblich, Eliav, “Beyond Life and Limb: Exploring Incidental Mental Harm Under International Humanitarian Law”, in Jinks, Derek, Maogoto, Jackson and Solomon, Solon (eds), Applying International Humanitarian Law in Judicial and Quasi-Judicial Bodies, Asser Press, The Hague, 2014, p. 185 ffGoogle Scholar; L. Gisel, above note 21, p. 120; Tallinn Manual, above note 8, p. 108.

109 E. Lieblich, above note 108, p. 189.

110 See L. Gisel, above note 21, p. 120.

111 Ibid .

112 Response from Norway, “Responses to Document CCW/GGE/X/WG.1/WP.2, Entitled IHL and ERW, Dated 8 March 2005”, CCW/GGE/XI/WG.1/WP.5, 29 July 2005, § 18–19.

113 Report of the Iraq Inquiry, 2016, § 277–278, available at: http://www.iraqinquiry.org.uk/the-report/.

114 According to Reynolds, collateral damage should be understood as both direct and indirect: “Failure to adequately evaluate these definitions suggests a faulty proportionality analysis, a defective effects-based targeting strategy, and a flawed post-conflict reconstruction assessment.” See Reynolds, Jefferson D., “Collateral Damage on the 21st Century Battlefield: Enemy Exploitation of the Law of Armed Conflict and the Struggle for a Moral High Ground”, Air Force Law Review, Vol. 56, 2005, p. 90 Google Scholar.

115 US Law of War Manual, above note 9, p. 241, §5.12.2.1.

116 L. Gisel, above note 21, p. 124.

117 Ibid .

118 See Expert Meeting Report, above note 9, p 15; Urban Services Report, above note 4, pp. 19, 32, 35, 46.

119 Egypt, Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, CDDH/III/SR.21, Geneva, 1974–1977, p. 186.

120 2015 Challenges Report, above note 2, pp. 47–48; Expert Meeting Report, above note 9, p. 4.

121 Ibid ., pp. 48 and 14 respectively.

122 Ibid .

123 Electricity networks can constitute dual-use objects. See the text at note 21 above, where it is noted that even where the object is rendered a military objective because of dual use, damage to the civilian part of that object, including loss of functionality and foreseeable reverberating effects, must be factored into the proportionality assessment.

124 K. Dörmann, above note 27, p. 17 (referring to the deaths of patients in medical facilities or the long-term disruption of electricity supplies); J. Crawford, above note 6, p. 110 (referring to decreased capacity to care for wounded and sick, and an inability to refrigerate adequate quantities of vaccines and medicines).

125 US Joint Targeting Manual, above note 19, Appendix A, “Legal Considerations in Targeting”, p. A-5.

126 For example, electricity services are comprised of infrastructure located above ground, such as power stations, transformers and substations, which if damaged or destroyed will have a significant impact on the service and will be more difficult to repair or replace; whereas infrastructure located below ground includes distribution pipes, which can be repaired relatively easily if circumstances permit. See Expert Meeting Report, above note 9, p. 16.

127 UK Joint Service Manual, above note 9, para. 5.32.4. This paragraph was amended in 2011. Prior to the amendment, the Manual read as follows: “Sometimes, especially during fighting in towns, the tactics employed can make a great difference to the control of incidental damage. Artillery fire can cause a lot of incidental damage without any appreciable military advantage.”

128 US Counterinsurgency Manual, above note 9, § 7–36.

129 UK Joint Service Manual, above note 9, para. 5.33.4.

130 See Williams, Paul D., “The African Union Mission in Somalia and Civilian Protection Challenges”, Stability: International Journal of Security and Development, Vol. 2, No. 2, 2013, p. 11 Google Scholar. The tactical directives issued to the International Security Assistance Force in Afghanistan between 2009 and 2012 provide yet another example. The Tactical Directive on Defensive Operations of 6 July 2009 constrained the use of air-to-ground munitions and indirect fire against residential compounds. In August 2010, the Directive was revised to include the requirement that prior to authorizing a strike, commanders must determine that no civilians are present. In November 2011, the Directive was further updated to emphasize that civilians are to be presumed to be present “in every location where there is evidence of human habitation” and that “all compounds are civilian structures until otherwise apparent”. A later revision in June 2012 included the requirement to refrain from releasing air-delivered munitions on targets within civilian dwellings.

131 ICRC Commentary to AP I, § 219.

132 Amended Mines Protocol, Art. 3(10); Protocol V on Explosive Remnants of War, Geneva, 28 November 2003 (entered into force 12 November 2006), Art. 5(1). This understanding is shared by a number of States and is included in various military manuals. See, for example, Argentina, Leyes de la Guerra, PC-08-01, 1989, approved by Resolution No. 489/89 of the Ministry of Defence, 23 April 1990, § 4.20; Australian Defence Force, Manual on the Law of Armed Conflict, Operations Series, ADFP37 – Interim Edition, 1994, p. xxiv; and the interpretive declarations of Belgium, France, Germany, Ireland, Italy, the Netherlands, Spain, the United Kingdom and the United States upon ratification of AP I. All State practice is available on the ICRC online database on customary international humanitarian law.

133 M. N. Schmitt and E. W. Widmar, above note 8, p. 401.

134 ICRC Customary Law Study, above note 12, Rule 18.

135 Algeria, Australia (“on the basis of their assessment of the information from all sources, which is available to them at the relevant time”), Austria (“the information actually available at the time of the decision”), Belgium (“such relevant information as is then available”), Ecuador (“on the basis of an objective and reasonable estimate of the available information”), Egypt (“on the basis of their assessment of all kinds of information available to them at the time”), Germany (“on the basis of all information available to him at the relevant time”), Italy (“on the basis of their assessment of the information from all sources which is available to them at the relevant time”), the Netherlands (“on the basis of their assessment of the information from all sources which is available to them at the relevant time”), Spain (“shall not necessarily be based on anything more than the relevant information available at the relevant time”), the United Kingdom (“on the basis of their assessment of the information from all sources which is available to them at the relevant time”) and the United States (“on the basis of an honest and reasonable estimate of the facts available to him”).

136 Canada (“on the basis of their assessment of the information reasonably available to them”); Ireland (“on the basis of their assessment of the information from all sources which is reasonably available to them at the relevant time”); New Zealand (“on the basis of their assessment of the information from all sources which is reasonably available to them at the relevant time”); UK Joint Service Manual, above note 9, para. 5.20.4, note 79 (“assessment of what is expected is based on information from all sources which is reasonably available to them at the relevant time”), referring to the UK Statement upon ratification of AP I. The US Naval Handbook, above note 19, para. 8.3.1, states: “[T]he commander must decide, in light of all the facts known or reasonably available to him, including the need to conserve resources and complete the mission successfully, whether to adopt an alternative method of attack, if reasonably available, to reduce civilian casualties and damage.” Ecuador's naval manual (Ecuador, Aspectoc importantes del derecho international maritimo que deben tener presente los comandantes de los buques, Academia de Guerra Naval, 1989), para. 8.1.2.1, states: “The commander must determine whether incidental injuries and collateral damage would be excessive, on the basis of an objective and reasonable estimate of the available information.” Canada and Ireland, in their declarations upon ratification of AP I (20 November 1990 and 19 May 1999 respectively), stated that “military commanders and others responsible for planning, deciding upon or executing attacks” must “reach decisions on the basis of their assessment of the information” that is “reasonably available to them at the relevant time”, and that “such decisions cannot be judged on the basis of information which has subsequently come to light”).

137 A. P. V. Rogers, above note 58, p. 151.

138 Benin, Military Manual, 1995 (“Military commanders must inform themselves about concentrations of civilian persons, important civilian objects and specially protected facilities, the natural environment and the civilian environment of military objectives.”); France's LOAC Summary Note, 1992 (“Commanders are responsible for the consequences for civilians of the military actions they take. They must, prior to any action, obtain a maximum of information concerning the nature and the location of protected objects (medical units, cultural objects, installations containing dangerous forces) and concerning any concentration of civilians.”).

139 Australia's LOAC Manual, 2006.

140 See Expert Meeting Report, above note 9, p. 16.

141 Tallinn Manual, above note 8, p. 166, § 6 (“Given the complexity of cyber operations, the high probability of affecting civilian systems, and the sometimes limited understanding of their nature and effects on the part of those charged with approving cyber operations, mission planners should, where feasible, have technical experts available to assist them in determining whether appropriate precautionary measures have been taken.”).

142 C. Droege, above note 7, p. 574.

143 W. H. Boothby, above note 18, p. 414.

144 See University Centre for International Humanitarian Law Geneva, Expert Meeting on “Targeting Military Objectives”, report, 12 May 2005, p. 15.

145 See, for example, Expert Meeting Report, above note 9, p. 29 (one speaker said that “in terms of analyzing the data that are available, in particular as regards foreseeing secondary fragmentation, some militaries routinely incorporate the technical expertise of a structural engineer”). See also Ibid., p. 33 (“UPDF also carries out BDAs, which involve intelligence analysts, field engineers, weapon experts and target analysts.”).

146 Department of the Army, Field Manual on Intelligence Support to Urban Operations, FM 2-91.4, March 2008, p. 3–2, available at: http://fas.org/irp/doddir/army/fm2-91-4.pdf.

147 US Joint Chiefs of Staff, Joint Urban Operations, JP 3-06, 20 November 2013 (US Joint Urban Operations Manual), pp. III-8–III-9. The Manual also states that “[a]n analysis of the threat is essential as is detailed intelligence and information on the physical terrain and infrastructure characteristics of the urban environment” (p. I-8).

148 Ibid .

149 See, for example, Israel, The Low Intensity Conflict: The Combat against Irregular Forces, Ground 10–29, 2005, p. 91 (“To the extent possible, all impact should be avoided to water, power, sewage and communication infrastructures …. All such damage should be reduced to the minimum, with means also provided as required to repair the damages.”); Royal Army of the Netherlands, The Humanitarian Law of War: A Manual, 2005, § 1221 (“Damage to infrastructure and civilian casualties must be avoided or, in any case, kept to a minimum.”).

150 According to the US no-strike process and CDM, CBR Plume Hazards include “nuclear, biological or chemical production/storage facilities; nuclear power plants; fertilizers, pharmaceutical, pesticide/herbicide production/storage facilities”. See US Chairman of the Joint Chiefs of Staff, above note 80, Appendix A to Enclosure D, p. D-A-9.

151 Ibid ., Appendix A to Enclosure D, p. D-A-34. As noted above, the rationale for requiring special consideration is that “[e]nvironmental hazard targets present the significant danger of widespread and long-term lethal effects on civilians and non-combatants from ground water contamination, flooding, uncontrollable fire, and spread of disease”.

152 Ibid ., Enclosure B, p. B-7.

153 Australian Department of Defence, Australian Defence Doctrine Publication 3.14 on Targeting, ADDP 3.14, 2 February 2009, § 1.21. Collateral effects are defined as follows: “A collateral effect is not damage to a target or any directly associated collateral damage to the immediate area, rather they are any effect(s) achieved beyond those for which the action was undertaken.” See also § 1.24.

154 See Husby, Eric C., “A Balancing Act: In Pursuit of Proportionality in Self-Defense for On-Scene Commanders”, The Army Lawyer, Vol. 6, 2012, p. 6 Google Scholar; Marc Garlasco, Troops in Contact: Airstrikes and Civilian Deaths in Afghanistan, Human Rights Watch, 8 September 2008; J. Alexander Thier and Azita Ranjbar, Killing Friends, Making Enemies: The Impact and Avoidance of Civilian Casualties in Afghanistan, briefing, United States Institute of Peace, July 2008, p. 2; Williams, Winston S. Jr., “Multinational Rules of Engagement: Caveats and Friction”, The Army Lawyer, Vol. 24, 2013, p. 27 Google Scholar, note 34.

155 In US doctrine, dynamic targeting refers to the targeting process for current operational planning (current twenty-four hours), where the timing is such as to require a more immediate response than deliberate targeting allows for. See US Joint Targeting Manual, above note 19, p. x.

156 See W. H. Boothby, above note 18, p. 123.

157 See E. C. Husby, above note 154, pp. 12–13.

158 See, for example, Jackson, Richard, “Empirical Approaches to the International Law of War”, Willamette Journal of International Law and Dispute Resolution, Vol. 16, 2008, p. 292 Google Scholar.

159 See, for example, E. C. Husby, above note 154, p. 13.

160 Boothby writes that “[i]f the relevant information is reasonably available to the decision-maker, he is required to take it into account when determining whether the intended attack would be lawful”. W. H. Boothby, above note 18, p. 172.

161 AP I, Art. 57(2)(a)(ii); ICRC Customary Law Study, above note 12, Rule 17. See also M. N. Schmitt and E. W. Widmar, above note 8, p. 402; and Italy's LOAC Elementary Rules Manual, 1997, which states: “To restrict civilian casualties and damages, the means of combat and weapons shall be adapted to the target.”

162 2015 Challenges Report, above note 2, p. 50; Expert Meeting Report, above note 9, pp. 5, 24–26. See also ICRC Commentary to AP I, Article 57(2)(a)(ii), § 2200, which notes that the “precision and range” of the available weapons “should be taken into account.”

163 Schmitt, Michael N., “The Principle of Discrimination in 21st Century Warfare”, Yale Human Rights and Development Journal, Vol. 2, 1999, p. 168 Google Scholar.

164 See, for example, the US CDM, also used during NATO combat operations: Chairman of the Joint Chiefs of Staff, above note 80.

165 L. Gisel, above note 21, p. 128.

166 Ibid .

167 See, for example, Belt, Stuart W., “Missiles over Kosovo: Emergence, Lex Lata, of a Customary Norm Requiring the Use of Precision Munitions in Urban Areas”, Naval Law Review, Vol. 47, No. 115, 2000 Google Scholar.

168 Y. Dinstein, above note 10, p. 170; M. N. Schmitt and E. W. Widmar, above note 8, p. 402.

169 Quéguiner, Jean-Francois, “Precautions Under the Law Governing the Conduct of Hostilities”, International Review of the Red Cross, Vol. 88, No. 864, 2006, p. 803 CrossRefGoogle Scholar.

170 Y. Dinstein, above note 10, p. 169. Emphasis added.

171 M. N. Schmitt and E. W. Widmar, above note 8, p. 402. Schmitt also emphasizes that such weapons will reduce collateral damage whilst obtaining the same military advantage.

172 US Department of the Army, Combined Arms Operations in Urban Terrain, ATTP 3-06.11, June 2011 (US Combined Arms Manual), p. 12–4.

173 US Joint Urban Operations Manual, above note 147, p. IV-16. It should be noted that these measures are framed as ways of reducing operational- and tactical-level implications, rather than as a legal obligation.

174 State of Israel, above note 66, para. 354.

175 Ibid .

176 Ibid .

177 See, for example, Kenya, LOAC Manual, 1997: “the destructive power of the ammunition used (quantity, ballistic data, precision, point or area covered, possible effects on the environment) should especially be taken into account”.

178 Expert Meeting Report, above note 9, p. 25.

179 US Combined Arms Manual, above note 172.

180 State of Israel, above note 66, para. 312.

181 For example, the US CDM – also used by NATO – requires a weaponeering analysis “which determines appropriate delivery systems, warhead, and fuze combinations that mitigate the risk of collateral damage while still achieving the desired effect on the target”. The US CDM is modelled around five questions, one of which is “Can I mitigate damage to those collateral concerns [including collateral objects] by striking the target with a different weapon or with a different method of engagement, yet still accomplish the mission?” Similarly, the Australian CDM provides that “for infrastructure targets, the assessment will consider the size, shape and construction of protected facilities, weapon type, size and accuracy, and blast and fragmentation radii”. See Australian Department of Defence, above note 153, pp. 4–8. The CDE Methodology used by the Australian military is detailed further in ADFP 3.14.2 Targeting Procedures, but this is not publicly available. See also Chairman of the Joint Chiefs of Staff, above note 80, pp. D-A-18, D-A-7.

182 J.-F. Quéguiner, above note 169, p. 800; Y. Dinstein, above note 10, p. 143. Precautionary measures regarding the timing and angle of attack are explicitly identified in a number of military manuals. See the Netherlands, Military Manual, 2005, § 0542 (“Thought must be given to the choice of methods or techniques of attack, resources (weapons and weapon systems), timing, and whether or not to warn the civilian population.”); State of Israel, The Operation in Gaza (27 December 2008–18 January 2009): Factual and Legal Aspects, 29 July 2009, § 258 (“to the extent feasible, the IDF timed attacks on targets so as to cause minimum collateral damage. For example, buildings normally occupied only during daylight hours, and military targets which were located in proximity to such buildings, were struck at night.”); Kenya, LOAC Manual, 1997 (“The direction and the moment of the attack shall be chosen so as to limit civilian casualties and damage (e.g. attack of factory after normal working hours).”); Ukraine, IHL Manual, 2004, § 2.3.3.2. (“Direction and time of offensive action shall be chosen in order to minimize human casualties and destruction of civilian objects, e.g. fire damage to an enemy military plant after the end of its working hours.”).

183 Expert Meeting Report, above note 9, pp. 11, 27.

184 Ibid ., p. 5; Kenneth Cross, Ove Dullum, N. R. Jenzen-Jones and Marc Garlasco, Explosive Weapons in Populated Areas: Technical Considerations Relevant to their Use and Effects, report, Armament Research Services, Australia, May 2016, p. 42.

185 Ibid ., p. 42; Expert Meeting Report, above note 9, p. 6.

186 J.-F. Quéguiner, above note 169, p. 800.

187 US Joint Urban Operations Manual, above note 147, p. IV-16.