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Protecting civilians in urban areas: A military perspective on the application of international humanitarian law

Published online by Cambridge University Press:  20 February 2017

Nathalie Durhin
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Abstract

Implementing the principles of international humanitarian law (IHL) represents a real challenge if the protection of civilians in today's urban armed conflicts remains a priority for armed forces. The application of the principle of distinction comes up against the difficulties of obtaining intelligence, in particular in the absence of troops on the ground. The minimalization of collateral damage requires putting in place very precise targeting procedures, and even the adoption of tactics designed to draw out traditional combat from cities. In terms of precautionary measures in attack or against the effects of an attack, these must be adapted to the context of urban combat. Nevertheless, IHL remains an essential instrument that must be analyzed and translated into action in a practical manner in order to conduct military operations that are at the same time effective and legally permissible.

Keywords

international humanitarian lawprotection of civilianscitiesurban areastargetingdistinctionproportionalitycollateral damageprecautionFrench armed forcesintelligencetroops on the ground
Type
The law
Information
International Review of the Red Cross , Volume 98 , Issue 901: War in cities , April 2016 , pp. 177 - 199
Copyright
Copyright © icrc 2017 

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References

1 In the wake of the shock of defeat in Vietnam, the idea of “clean” or “zero-casualty” warfare spread and gained wide currency in the first Gulf War. See Huyghe, François-Bernard, “The Impurity of War”, International Review of the Red Cross, Vol. 91, No. 873, 2009 CrossRefGoogle Scholar. See also Chevrier, Guylain, “Guerre du Golfe et télévision: Un mariage stratégique”, Cahiers d'Histoire: Revue d'Histoire Critique, No. 86, 2002 Google Scholar.

2 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), Article 52(2): “Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”

3 See Shue, Henry and Wippman, David, “Limiting Attacks on Dual-Use Facilities Performing Indispensable Civilian Functions”, Cornell International Law Journal, Vol. 35, No. 3, 2002 Google Scholar. See also John-Hopkins, Michael, “Regulating the Conduct of Urban Warfare: Lessons from Contemporary Asymmetric Armed Conflicts”, International Review of the Red Cross, Vol. 92, No. 878, 2010 CrossRefGoogle Scholar, available at: www.icrc.org/en/international-review/article/regulating-conduct-urban-warfare-lessons-contemporary-asymmetric-armed (all internet references were accessed in December 2016).

4 See AP I, Article 54(2): “It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive.”

5 See Henckaerts, Jean-Marie and Doswald-Beck, Louise, Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005 (ICRC Customary Law Study), Rule 53, pp. 186–188 CrossRefGoogle Scholar.

6 See Dörmann, Knut, “Preparatory Commission for the International Criminal Court: The Elements of War Crimes – Part II: Other Serious Violations of the Laws and Customs Applicable in International and Non-International Armed Conflicts”, International Review of the Red Cross, Vol. 83, No. 842, 2001, pp. 475–476 Google Scholar.

7 On the subject of cyber-warfare, see Lin, Herbert, “Cyber Conflict and International Humanitarian Law”, International Review of the Red Cross, Vol. 94, No. 896, 2012 CrossRefGoogle Scholar, available at: https://app.icrc.org/e-briefing/new-tech-modern-battlefield/media/documents/29.-Cyber-conflict-and-international-humanitarian-law.pdf.

8 See the Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954, 249 UNTS 240 (entered into force 7 August 1956).

9 The GCPEA was established in 2010 by organizations from the fields of education in emergencies and conflict-affected fragile States, higher education, protection, international human rights law and IHL, which were concerned about continuous attacks on educational establishments and their students and staff in countries affected by conflict and insecurity.

10 GCPEA, Draft Lucens Guidelines for Protecting Schools and Universities from Military Use during Armed Conflict, version of 22 October 2014, available at: http://protectingeducation.org/sites/default/files/documents/draft_lucens_guidelines.pdf.

11 Siege warfare issues are particularly salient in the ongoing Syrian conflict. See, for example, UNSC Res. 2139, 22 February 2014.

12 For further information on this subject, see French National Assembly, Rapport de la mission d'information française sur les moyens de Daech, Report No. 3964, 13 July 2016, available at: www2.assemblee-nationale.fr/static/14/daech/rapport-daech-tome1.pdf.

13 See Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950), Art. 15; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950), Art. 18; Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War of 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (GC IV), Art.  17.

14 Protocol Additional (II) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 1125 UNTS 609, 8 June 1977 (entered into force 7 December 1978) (AP II), Art. 13(3): “Civilians shall enjoy the protection afforded by this Part, unless and for such time as they take a direct part in hostilities.”

15 See Melzer, Nils, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, ICRC, Geneva, 2009 Google Scholar (Interpretive Guidance).

16 It should be noted that in the Commentary on the Additional Protocols, a direct causal link is not required, just a “sufficient causal relationship”. See Yves Sandoz, Christophe Swinarski and Bruno Zimmermann (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC and Martinus Nijhoff, Geneva, 1987, para. 4787.

17 Interpretive Guidance, above note 15, pp. 51–52.

18 Ibid ., p. 56.

19 See French National Assembly, above note 12.

20 For example, during the Libyan conflict in 2011, events in September resulted in the considerably weakened loyalist forces taking refuge in certain places, such as Bani Walid, keeping the inhabitants prisoner and using them as a shield to protect them from the attacks of National Transitional Council and NATO forces.

21 On the question of voluntary human shields, see, for example, Antoine P. Kabore, “Do Voluntary Human Shields Participate Directly in Hostilities? An Analysis Based on the ICRC's Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law”, thesis for master's in advanced studies, Geneva, December 2010, available at: http://archives.geneva-academy.ch/docs/award-dunant/ADH-MAS-Memoire-Kabore-2009-2010.pdf.

22 See Schmitt, Michael N., Garraway, Charles H. B. and Dinstein, Yoram, The Manual on the Law of Non-International Armed Conflict with Commentary, San Remo International Institute of Humanitarian Law, San Remo, 2006 Google Scholar, reproduced in Israel Yearbook on Human Rights, Vol. 36, 2006, p. 44: “Should civilians voluntarily elect to shield a military objective or obstruct military operations, they would in almost all circumstances be taking an active (direct) part in hostilities, and, for the purpose of this Manual, could be treated as fighters.”

23 See, for example, Sassòli, Marco, “Human Shields and International Humanitarian Law”, in Fischer-Lescano, Andreas, Gaser, Hans-Peter, Marauhn, Thilo and Ronzitti, Natalino (eds), Peace in Liberty, Nomos and Dike, Baden-Baden and Zurich, 2008, pp. 7–10 Google Scholar.

24 Interpretive Guidance, above note 15, p. 57.

25 In the case of Operation Unified Protector (Libya, 2011) and Operation Inherent Resolve (Iraq/Syria, 2014), the political choice was made to confine action to air strikes and indirect support for the armed opposition groups.

26 Operation Inherent Resolve in Iraq/Syria has drawn on the lessons learned from decades of military engagement in Iraq and Afghanistan. Consequently, air strikes are few and far between, and the “no-strike lists” have been considerably extended, with the main aim of achieving zero civilian casualties.

27 AP I, Art. 57(2)(a)(iii): “refrain from deciding to launch any 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”.

28 See Camilla Waszink, Protection of Civilians under International Humanitarian Law: Trends and Challenges, Norwegian Peacebuilding Resource Centre Report, August 2011, pp. 30–32.

29 See ibid ., p. 31. Possible causes of deliberate civilian harm include “ideologies of genocide/ethnic cleansing, response to attacks on civilians by the other party, strategy to displace civilian populations from an area, spread fear or control the civilian population, strategy to undermine civilian support for the war effort and end civilian resistance, civilians perceived as ‘soft targets’ by the weaker party in asymmetrical conflicts”.

30 See ibid ., p. 31. Possible causes of unforeseen civilian harm include “accidents, e.g. due to technical failures or human errors, inaccurate intelligence, civilians targeted by mistake, e.g. because they were believed to be participating directly in hostilities”.

31 See USFOR-A Public Affairs, statement on the Kunduz MSF hospital investigation, 2015-11-25-US-01, Kabul, 25 November 2015.

32 Ibid ., p. 2: “The report determined that the US strike upon the MSF Trauma Center in Kunduz City, Afghanistan, was the direct result of human error, compounded by systems and procedural failures. The US forces directly involved in this incident did not know the targeted compound was the MSF Trauma Center. The medical facility was misidentified as a target by US personnel who believed they were striking a different building several hundred meters away where there were reports of combatants. The report also determined that the personnel who requested the strike, and those who executed it from the air, did not undertake appropriate measures to verify that the facility was a legitimate military target” (emphasis added).

33 In the targeting cycle, the first stage in the analysis of the target dossiers involves ensuring that all the criteria relating to the “military objective”, within the meaning of AP I Article 52(2), are met. The relevance of the intelligence and its temporal validity are assessed for the target in question and also in the broader context of an overall assessment of the adversary's capabilities.

34 Once it has been established that the target is a legitimate military objective and that the foreseeable collateral damage has been minimized, the principle of precaution is implemented, determining the specific conditions of the strike (for example, the timing of the strike and advance warnings). See the sections on “Establishment of Specific Procedures and Precautions” and “The Complex Question of Giving Advance Warning”, below.

35 For example, the engagement of a target with a CDE level of 5 would be decided by a hierarchically higher military authority than in the case of a target with a CDE level of 1.

36 On ROE, see French Joint Doctrine (Doctrine Interarmées), version 5.2, 25 July 2006 (currently undergoing consolidation), on the use of force in military operations conducted outside national territory, p. 19.

37 US doctrine on targeting, for example, states that military commanders are not required to take into account risks that are too far removed to be assessed at a given point in time. However, the repercussions that a strike can reasonably be expected to have should be included in the calculation of collateral damage and incidental casualties. See Joint Chiefs of Staff, Joint Doctrine for Targeting, Joint Publication 3-60, 17 January 2002, p. I-7, available at: www.bits.de/NRANEU/others/jp-doctrine/jp3_60%2802%29.pdf.

38 Article 49 of AP I defines attacks as “acts of violence against the adversary, whether in offence or in defence”. This definition is, however, interpreted and applied in different ways in terms of the number and type of acts of violence that amount to an attack. For example, in its judgment in the Galić case, the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) observed: “When seeking to establish whether the proportionality principle is violated, the Prosecution urges the Trial Chamber to analyze the ‘concrete and direct military advantage’ at the level of each sniping and shelling incident, and to consider whether the precautionary provisions contained in Article 57 of Additional Protocol I were complied with.” ICTY, The Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgment (Trial Chamber), 5 December 2003, para 37. Conversely, when ratifying the Additional Protocols, the United Kingdom made the following reservation: “In the view of the United Kingdom, the military advantage anticipated from an attack is intended to refer to the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack.” See: https://ihl-databases.icrc.org/ihl/NORM/0A9E03F0F2EE757CC1256402003FB6D2?OpenDocument.

39 On the debate concerning the importance of force protection, see, for example, Noam Neuman, “Applying the Rule of Proportionality: Force Protection and Cumulative Assessment in International Law and Morality”, Yearbook of International Humanitarian Law, Vol. 7, December 2004, available at: http://thirdworld.nl/applying-the-rule-of-proportionality-force-protection-and-cumulative-assessment-in-international-law-and-morality. See also David Luban, “Risk Taking and Force Protection”, Georgetown Law Faculty Publications and Other Works, Paper 654, 2011, available at: http://scholarship.law.georgetown.edu/facpub/654/.

40 See ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign against the Federal Republic of Yugoslavia, reprinted in International Legal Materials, Vol. 39, No. 5, 2000, paras 48–50.

41 See C. Waszink, above note 28, p. 37: “[I]t may be time to start discussing how much civilian harm is acceptable even when it is not in itself unlawful and whether more can be done by parties to armed conflicts to minimise civilian harm. The measures taken by, for example, ISAF forces in Afghanistan demonstrate that there may be considerable scope for doing so even beyond what is required by IHL in a very strict sense, and that this may indeed be beneficial on both humanitarian and military grounds.”

42 Article 57(4) of AP I also provides: “In the conduct of military operations at sea or in the air, each Party to the conflict shall, in conformity with its rights and duties under the rules of international law applicable in armed conflict, take all reasonable precautions to avoid losses of civilian lives and damage to civilian objects.”

43 Article 57(2)(a)(i) of AP I states that those planning or deciding 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 within the meaning of paragraph 2 of Article 52 and that it is not prohibited by the provisions of this Protocol to attack them”.

44 Article 57(2)(a)(ii) of AP I states that those planning or deciding upon an attack shall “take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects”.

45 Examples include chemical and biological weapons, incendiary weapons, mines and cluster munitions.

46 Convention on Cluster Munitions, 2688 UNTS 39, 3 December 2008 (entered into force 1 August 2010), available at: www.clusterconvention.org/the-convention/convention-text/.

47 This has long been the case for bombs dropped by aircraft (laser- and GPS-guided). More recently, in France, the development of the Caesar self-propelled howitzer and the guided unitary multiple launch rocket system, as well as the work carried out on GPS-guided shells and rockets, demonstrates that precision is at the centre of military developments. See Rudolph Stamminger, “Peut-on encore faire la guerre sans armes de précisions?”, Le Monde, 13 September 2012.

48 AP I, Art. 57(2)(b): “[A]n attack shall be cancelled or suspended if it becomes apparent that the objective is not a military one or is subject to special protection 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.”

49 AP I, Article 57(3): “When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects.”

50 AP I, Art. 57(2)(c): “[E]ffective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit.”

51 See Report of the United Nations Fact Finding Mission on the Gaza Conflict, UN Doc. A/HRC/12/48, 25 September 2009.

52 It is interesting to note that during Operation Cast Lead, 2.5 million leaflets were dropped and around 16,500 phone calls were made by the Israeli armed forces. The leaflets contained both generic warnings (urging the people of Gaza to move away from combat zones) and local warnings (indicating the time of the evacuation and designating specific routes to safe areas). More specific warnings were then given by telephone. In spite of these efforts, the Fact Finding Mission considered these actions to be insufficient, citing “the lack of specificity and thus credibility of many pre-recorded phone messages and leaflets. The credibility of instructions to move to city centres for safety was also diminished by the fact that the city centres themselves had been the subject of intense attacks during the air phase of the military operations.” See ibid., para. 37.

53 Note by the UN Secretary-General, “Situation of Human Rights in the Palestinian Territories Occupied since 1967”, UN Doc. A/61/470, 27 September 2006, para. 7. See also Vite, Sylvain, “Typology of Armed Conflicts in International Humanitarian Law: Legal Concepts and Actual Situations”, International Review of the Red Cross, Vol. 91, No. 873, 2009, pp. 83–85 CrossRefGoogle Scholar.

54 AP I, Art. 58: “The Parties to the conflict shall, to the maximum extent feasible: (a) without prejudice to Article 49 of the Fourth Convention, endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives; (b) avoid locating military objectives within or near densely populated areas; (c) take the other necessary precautions to protect the civilian population, individual civilians and civilian objects under their control against the dangers resulting from military operations.”

55 See ICRC Customary Law Study, above note 5, Rule 23, pp. 71–74.

56 Ibid ., Rule 24, pp. 74–76.

57 On this subject of the non-reciprocity of IHL, see, for example, ICRC Customary Law Study, above note 5, Rule 140, pp. 498–500.

58 On the subject of French military intervention in Mali, see, for example, Jean-Christophe Notin, La guerre de la France au Mali, Tallandier, Paris, 2014.

59 On this subject, see the work of the French Commission on Foreign Affairs, Defence and the Armed Forces on the French special forces, available at: www.senat.fr/les_actus_en_detail/article/forces-speciales-francaises.html.

60 Known as RESEVAC operations in French military doctrine.

61 For instance, whether the use of force in the evacuation of nationals for humanitarian reasons can be considered an exception recognized in customary law to the prohibition on recourse to force between States, or whether it is simply permitted, in certain circumstances, because such an intervention is not deemed to constitute the use of force between States.

62 French nationals or members of the European Union in the case of France.

63 In IACs, deportations and forcible transfers are prohibited (GC IV, Art. 49), and in NIACs, the forced movement of civilians is prohibited (AP II, Art. 17).

64 See ICRC Customary Law Study, above note 5, Rule 129, pp. 457–462.

65 Neutralized zones had already been established in the past – for example, in Madrid in 1936, in Shanghai in 1937 (Jacquinot safe zone) and in Jerusalem in 1948 (agreement between Va'ad Leumi, the Jewish armed organization, and the Arab League, allowing the ICRC to create a safe zone in order to provide shelter to civilians). It was this latter initiative that inspired the provisions on this subject included in the Geneva Conventions of 1949.

66 See ICRC Customary Law Study, above note 5, Rule 35, p. 119–120.

67 The concept was subsequently extended to other cities: Tuzla, Zepa, Bihac, Gorazde and Sarajevo in May 1993.

68 See, for example, Pierre Salignon, “Le massacre de Srebrenica”, Revue Humanitaire, Autumn/Winter 2008. See also NIOD Institute for War, Holocaust and Genocide Studies, Srebrenica Report, 10 April 2002, available at: www.niod.knaw.nl/en/srebrenica-report/report.

69 See the testimony given by General Keane at the US Senate hearing held early in October 2015.

70 See RULAC (Rule of Law in Armed Conflicts), “Country Profile: Syria”, Geneva Academy, October 2015, available at: www.rulac.org/countries/syria.

71 It is worth noting that counter-insurgency tactics in urban environments are nothing new (the Battle of Algiers and the strategy implemented by General Petraeus in Afghanistan, for example). All have shown that conflicts are not won with the systematic destruction of urban areas, but with a combination of actions, including human intelligence, targeted neutralization designed to preserve the lives of civilians, and a comprehensive approach (“winning hearts and minds”) focused on not losing the support of the inhabitants and securing the future.

72 See the French Joint Doctrine, No. 234/DEF/CICDE/NP, 30 September 2010, amended on 8 May 2012, available at: http://portail-cicde.intradef.gouv.fr/RDIA-2010-005-Les-operations-urbaines-OPURB.

73 The “Three Block War” concept was coined in the late 1990s by US Marine General Charles Krulak to illustrate the challenges facing US Marines in operations such as the one carried out in Somalia in 1993. The main thrust of the theory is that military personnel must be trained to operate simultaneously in all three types of environment encountered today: full-scale military action, peacekeeping operations and humanitarian aid.