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This Chapter, however, does not address all rules related to the conduct of hostilities. For
example, rules on weapons are addressed in Chapter VI. In addition, later chapters address the
rules and issues specific to the Naval (Chapter XIII), Air (Chapter XIV), Space (Chapter XIV),
and Cyber (Chapter XVI) domains, and Chapter XVIII addresses non-international armed
conflict.
Violations of the rules in the conduct of hostilities may be violations of criminal law,
although it is not a purpose of this Chapter to address liability under criminal law.
5.1.1 Notes on Terminology - “Means and Methods of Warfare”. In general, method of
warfare has referred to how warfare is conducted, while means of warfare has referred to
weapons or devices used to conduct warfare.2
For example, an analysis of a method of warfare might consider the way in which an
artillery projectile may be employed, particularly where employment could have an adverse
effect on the civilian population. On the other hand, an analysis of the legality of the means of
warfare might consider the legality of the way in which the artillery projectile is designed to kill
or injure enemy combatants.3
Although the terms means of warfare and methods of warfare lack an established,
specific meaning, in some cases, the phrase “method of warfare” may be a term of art in a legal
instrument that has been specifically interpreted by the United States. For example, the
Chemical Weapons Convention obligates Parties to undertake not to use riot control agents as a
“method of warfare,” and the United States has interpreted that prohibition not to include certain
uses of riot control agents.4
5.1.2 Adherence to Law of War Obligations in the Conduct of Hostilities During Military
Operations. The law of war rules in the conduct of hostilities have been implemented during
military operations through rules of engagement and other military orders.
U.S. practice and the conduct of U.S. military operations often exceed the requirements
of the law of war. For example, military commanders often seek to reduce the risk of civilian
2 See, e.g., W. Hays Parks, Special Assistant to The Judge Advocate General of the Army for Law of War Matters,
Memorandum of Law: Travaux Preparatoires and Legal Analysis of Blinding Laser Weapons Protocol, reprinted in
THE ARMY LAWYER 33, 34-35 (Jun. 1997) (“Method of warfare is one of two historic phrases in the law of war.
Although neither phrase has an agreed definition, means of warfare traditionally has been understood to refer to the
effect of weapons in their use against combatants, while method of warfare refers to the way weapons are used in a
broader sense.”); ICRC AP COMMENTARY 621 (¶1957) (“The term ‘means of combat’ or ‘means of warfare’ (cf.
Article 35 - Basic rules) generally refers to the weapons being used, while the expression ‘methods of combat’
generally refers to the way in which such weapons are used.”).
3 See W. Hays Parks, Special Assistant to The Judge Advocate General of the Army for Law of War Matters,
Memorandum of Law: Travaux Preparatoires and Legal Analysis of Blinding Laser Weapons Protocol, reprinted in
THE ARMY LAWYER 33, 35 (Jun. 1997) (“Thus, means considers the legality of the way in which a projectile or its
fragments, for example, kill or injure combatants. As an illustration, Protocol I of the UNCCW makes the use of
fragments not detectable by X-ray a prohibited means of warfare. In contrast, method weighs the way in which
weapons may be employed, particularly where employment may have an adverse effect on civilians not taking a
direct part in the hostilities.”).
4 Refer to § 6.16.2 (Prohibition on Use of Riot Control Agents as a Method of Warfare).
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casualties by taking additional precautions even when such measures are not required by the law
of war. Similarly, there are cases in which, for military or policy reasons, an attack is not
conducted, even though the attack would be legally permissible.5
Although the law of war creates international obligations regarding the conduct of
hostilities that apply to the parties to a conflict, responsibility for implementing certain
international obligations would only apply to those persons belonging to the party’s forces with
the domestic authority to make the decisions necessary to implement those obligations.6 For
example, a pilot would be entitled to rely on the determination by headquarters that a given
target is, in fact, a military objective.7
5.2 PRINCIPLES FOR THE CONDUCT OF HOSTILITIES
The principles that provide the foundation for the law of war are discussed in Chapter II,
and these principles apply to the conduct of hostilities. As noted in Chapter II, specific rules on
the conduct of hostilities are derived from, and must be interpreted consistent with, the basic
principles that underlie the law of war.8 Moreover, where no specific rule applies, law of war
principles provide a general guide for conduct during war, including the conduct of hostilities.9
5.3 OVERVIEW OF RULES FOR THE PROTECTION OF CIVILIANS
The protection of civilians10 against the harmful effects of hostilities is one of the main
purposes of the law of war.11 Many of the rules for the protection of civilians are derived from
the principles of distinction and proportionality.12 Specific rules for the protection of civilians
5 For example, FINAL REPORT ON THE PERSIAN GULF WAR 615 (“Similar actions were taken by the Government of
Iraq to use cultural property to protect legitimate targets from attack; a classic example was the positioning of two
fighter aircraft adjacent to the ancient temple of Ur (as depicted in the photograph in Volume II, Chapter VI, ‘Off
Limits Targets’ section) on the theory that Coalition respect for the protection of cultural property would preclude
the attack of those aircraft. While the law of war permits the attack of the two fighter aircraft, with Iraq bearing
responsibility for any damage to the temple, Commander-in-Chief, Central Command (CINCCENT) elected not to
attack the aircraft on the basis of respect for cultural property and the belief that positioning of the aircraft adjacent
to Ur (without servicing equipment or a runway nearby) effectively had placed each out of action, thereby limiting
the value of their destruction by Coalition air forces when weighed against the risk of damage to the temple. Other
cultural property similarly remained on the Coalition no-attack list, despite Iraqi placement of valuable military
equipment in or near those sites.”).
6 Cf. United Kingdom, Statement on Ratification of AP I, Jan. 28, 1998, 2020 UNTS 75, 78 (“The United Kingdom
understands that the obligation to comply with [art. 57] paragraph 2(b) only extends to those who have the authority
and practical possibility to cancel or suspend the attack.”).
7 ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign
Against the Federal Republic of Yugoslavia, ¶84 (Jun. 13, 2000) (“The building hit was clearly a civilian object and
not a legitimate military objective. … It is the opinion of the committee that the aircrew involved in the attack
should not be assigned any responsibility for the fact they were given the wrong target … .”).
8 Refer to § 2.1.2.1 (Law of War Principles as an Aid in Interpreting and Applying Law of War Rules).
9 Refer to § 2.1.2.2 (Law of War Principles as a General Guide).
10 Refer to § 4.8.1.5 (General Usage of “Civilian” in This Manual).
11 Refer to § 1.3.4 (Purposes of the Law of War).
12 Refer to § 2.5 (Distinction); § 2.4 (Proportionality).
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may be grouped into two categories: (1) essentially negative duties to respect civilians and to
refrain from directing military operations against them; (2) affirmative duties to take feasible
precautions to protect civilians and other protected persons and objects.
5.3.1 Responsibility of the Party Controlling Civilian Persons and Objects. The party
controlling civilians and civilian objects has the primary responsibility for the protection of
civilians and civilian objects.13 The party controlling the civilian population generally has the
greater opportunity to minimize risk to civilians.14 Civilians also may share in the responsibility
to take precautions for their own protection.15
5.3.2 Essentially Negative Duties to Respect Civilians and to Refrain From Directing
Military Operations Against Them. In general, military operations must not be directed against
enemy civilians.16 In particular:
13 See J. Fred Buzhardt, DoD General Counsel, Letter to Senator Edward Kennedy, Sept. 22, 1972, reprinted in 67
AJIL 122 (1973) (“A summary of the laws of armed conflict, in the broadest terms, reveals certain general principles
including the following: … (c). That a distinction must be made at all times between persons taking part in the
hostilities and members of the civilian population to the effect that the civilians be spared as much as possible. …
The principle in (c) addresses primarily the Party exercising control over members of the civilian population.”);
BOTHE, PARTSCH, & SOLF, NEW RULES 284 (AP I art. 48, ¶2.2) (explaining that “an important share of the
responsibility for implementing the principle of distinction rests on the Party which controls the civilian
population.”); United States, Statement on Ratification of the 1954 Hague Cultural Property Convention, Mar. 13,
2009, 2575 UNTS 7, 8 (“It is the understanding of the United States of America that, as is true for all civilian
objects, the primary responsibility for protection of cultural objects rests with the party controlling that property, to
ensure that it is properly identified and that it is not used for an unlawful purpose.”).
14 FINAL REPORT ON THE PERSIAN GULF WAR 614 (“In the effort to minimize collateral civilian casualties, a
substantial responsibility for protection of the civilian population rests with the party controlling the civilian
population. Historically, and from a common sense standpoint, the party controlling the civilian population has the
opportunity and the responsibility to minimize the risk to the civilian population through the separation of military
objects from the civilian population, evacuation of the civilian population from near immovable military objects, and
development of air raid precautions. Throughout World War II, for example, both Axis and Allied nations took each
of these steps to protect their respective civilian populations from the effects of military operations.”).
15 U.S. Comments on the International Committee of the Red Cross’s Memorandum on the Applicability of
International Humanitarian Law in the Gulf Region, Jan. 11, 1991, DIGEST OF UNITED STATES PRACTICE IN
INTERNATIONAL LAW 1991-1999 2057, 2063 (“The obligation of distinguishing combatants and military objectives
from civilians and civilian objects is a shared responsibility of the attacker, defender, and the civilian population as
such. An attacker must exercise reasonable precautions to minimize incidental or collateral injury to the civilian
population, consistent with mission accomplishment and allowable risk to the attacking force. A defender must
exercise reasonable precaution to separate the civilian population and civilian objects from military objectives.
Civilians must exercise reasonable precaution to remove themselves from the vicinity of military objectives or
military operations. The force that has control over the civilians has an obligation to place them in a safe place.”);
Brigadier General George B. Davis, Working Memoranda (Confidential for the United States Delegates): The
Second Peace Conference (Paragraph 2 of Programme), The Rules of War on Land, 28 (1907) (“It seems hardly
necessary to say, however, that if any defense is attempted or if a town is occupied or held by the armed forces of
the enemy, it ceases to be undefended and, for that reason, may be attacked or fired upon. The inhabitants of such a
place, so soon as a garrison is established or military defense is attempted, become charged with the knowledge that
the town is defended and, as such, liable to attack, and, if they desire to secure an immunity from acts of war, should
remove their families and belongings from the zone of active military operations.”).
16 Consider AP I art. 48 (“In order to ensure respect for and protection of the civilian population and civilian objects,
the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between
186
• Civilians must not be made the object of attack;17
• Military objectives may not be attacked when the expected incidental loss of life and
injury to civilians or damage to civilian objects would be excessive in relation to the
concrete and direct military advantage expected to be gained;18
• Civilians must not be used as shields or as hostages;19 and
• Measures of intimidation or terrorism against the civilian population are prohibited,
including acts or threats of violence, the primary purpose of which is to spread terror
among the civilian population.20
5.3.2.1 Non-Violent Measures That Are Militarily Necessary. The principle that
military operations must not be directed against civilians does not prohibit military operations
short of violence that are militarily necessary. For example, such operations may include:
• stopping and searching civilians for weapons and to verify that they are civilians;21
• temporarily detaining civilians for reasons of mission accomplishment, self-defense, or
for their own safety;22
civilian objects and military objectives and accordingly shall direct their operations only against military
objectives.”).
17 Refer to § 5.6.2 (Persons, Objects, and Locations That Are Protected From Being Made the Object of Attack).
18 Refer to § 5.12 (Proportionality in Conducting Attacks).
19 Refer to § 5.16 (Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede Military
Operations).
20 Refer to § 10.5.3.2 (Collective Penalties and Measures of Intimidation or Terrorism).
21 For example, 101st Airborne ROE Card, Iraq (2003), reprinted in CENTER FOR LAW AND MILITARY OPERATIONS,
THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER & SCHOOL, U.S. ARMY, I LEGAL LESSONS LEARNED FROM
AFGHANISTAN AND IRAQ: MAJOR COMBAT OPERATIONS (11 SEPTEMBER 2001 - 1 MAY 2003) 315 (2004) (“You may
stop civilians and check their identities, search for weapons and seize any found.”). Compare § 10.6.1 (General
Authority of a Belligerent to Search and Secure Protected Persons and Their Property).
22 For example, Detainee Review Procedures at Bagram Theater Internment Facility (BTIF), Afghanistan, enclosure
to Phillip Carter, Deputy Assistant Secretary of Defense for Detainee Policy, Letter to Chairman Carl Levin, Jul. 14,
2009 (“(U) U.S. Forces operating under Operation Enduring Freedom (OEF) authority are authorized to detain
persons temporarily, consistent with the laws and customs of war (e.g., in self-defense or for force protection).”);
Coalition Forces Land Component Command (CFLCC) Rules of Engagement (ROE) Card, Iraq (2003), reprinted in
CENTER FOR LAW AND MILITARY OPERATIONS, THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER & SCHOOL, U.S.
ARMY, I LEGAL LESSONS LEARNED FROM AFGHANISTAN AND IRAQ: MAJOR COMBAT OPERATIONS (11 SEPTEMBER
2001 - 1 MAY 2003) 314 (2004) (“Detain civilians if they interfere with mission accomplishment or if required for
self-defense.”); 101st Airborne ROE Card, Iraq (2003), reprinted in CENTER FOR LAW AND MILITARY OPERATIONS,
THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER & SCHOOL, U.S. ARMY, I LEGAL LESSONS LEARNED FROM
AFGHANISTAN AND IRAQ: MAJOR COMBAT OPERATIONS (11 SEPTEMBER 2001 - 1 MAY 2003) 315 (2004) (“Detain
civilians when necessary to accomplish your mission or for their own safety.”); CENTER FOR LAW AND MILITARY
OPERATIONS, THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER & SCHOOL, U.S. ARMY, LAW AND MILITARY
OPERATIONS IN KOSOVO, 1999-2001: LESSONS LEARNED FOR JUDGE ADVOCATES 102-03 (2001) (“Based on the
KFOR [Kosovo Force] guidance, Task Force Falcon instructed U.S. soldiers and Marines to detain persons who
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• collecting intelligence from civilians, including interrogating civilians;23
• restricting the movement of civilians or directing their movement away from military
operations for their own protection;24 or
• seeking to influence enemy civilians with propaganda.25
5.3.2.2 Military Operations Intended to Benefit Civilians. The principle that
military operations not be directed against civilians does not preclude military operations
intended to benefit civilians. Such operations may include humanitarian assistance operations,
noncombatant evacuation operations, civil affairs operations, or civil-military operations.
During counter-insurgency operations, military operations to protect civilians and to help obtain
their support may be particularly important.26
5.3.3 Affirmative Duties to Take Feasible Precautions for the Protection of Civilians and
Other Protected Persons and Objects. Parties to a conflict must take feasible precautions to
reduce the risk of harm to the civilian population and other protected persons and objects.27
Feasible precautions to reduce the risk of harm to civilians and civilian objects must be taken
when planning and conducting attacks.28 Feasible precautions should be taken to mitigate the
burden on civilians when seizing or destroying enemy property.29 It is specifically provided that
committed criminal misconduct under a familiar standard, the Uniform Code of Military Justice (UCMJ). This was
the standard to be applied during each of the 1,300 patrols that U.S. soldiers conducted per week in Kosovo. If
soldiers or Marines witnessed an act that would be a crime under the UCMJ, they arrested the wrongdoer.
COMKFOR and the SRSG augmented crimes under the military code with mission-specific unauthorized acts, such
as weapons, uniform, and curfew violations. Soldiers were also authorized to detain local citizens who were
considered a threat to the military or to the overall mission.”).
23 Refer to § 5.26.2 (Information Gathering).
24 Refer to § 5.14.2 (Removing Civilians and Civilian Objects From the Vicinity of Military Objectives).
25 Refer to § 5.26.1.2 (Propaganda Generally Permissible).
26 Refer to § 17.5.2.1 (Positioning Military Forces Near the Civilian Population to Win Their Support and to Protect
Them).
27 See, e.g., Michael J. Matheson, Deputy Legal Adviser, Department of State, Remarks on the United States
Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva
Conventions at the Sixth Annual American Red Cross-Washington College of Law Conference on International
Humanitarian Law (Jan. 22, 1987), 2 AMERICAN UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLICY 419,
426-27 (1987) (“We support the principle that all practicable precautions, taking into account military and
humanitarian considerations, be taken in the conduct of military operations to minimize incidental death, injury, and
damage to civilians and civilian objects, and that effective advance warning be given of attacks which may affect the
civilian population, unless circumstances do not permit.”); U.N. GENERAL ASSEMBLY RESOLUTION 2675, Basic
Principles for the Protection of Civilian Populations in Armed Conflict, U.N. Doc. A/8028 (Dec. 9, 1970) (“In the
conduct of military operations, every effort should be made to spare the civilian populations from the ravages of
war, and all necessary precautions should be taken to avoid injury, loss or damage to civilian populations.”). Refer
to § 5.18.4 (Other Feasible Precautions to Reduce the Risk of Harm to Cultural Property).
28 Refer to § 5.11 (Feasible Precautions in Conducting Attacks to Reduce the Risk of Harm to Protected Persons and
Objects).
29 Refer to § 5.17.5 (Feasible Precautions Should Be Taken to Mitigate the Burden on Civilians).
188
feasible precautions must be taken in connection with certain types of weapons.30 Feasible
precautions to reduce the risk of harm to civilians must also be taken by the party subject to
attack.31
5.3.3.1 Feasible Precautions - Notes on Terminology. Although this manual
primarily uses “feasible,” other adjectives have been used to describe the obligation to take
feasible precautions during armed conflict. The words “practicable,”32 “reasonable,”33 “due,”34
and “necessary”35 have been used to describe this obligation.
5.3.3.2 What Precautions Are Feasible. The standard for what precautions must
be taken is one of due regard or diligence, not an absolute requirement to do everything
possible.36 A wanton disregard for civilian casualties or harm to other protected persons and
objects is clearly prohibited.37
30 Refer to § 5.3.3.3 (Requirements to Take Precautions Regarding Specific Weapons).
31 Refer to § 5.14 (Feasible Precautions to Reduce the Risk of Harm to Protected Persons and Objects by the Party
Subject to Attack).
32 Michael J. Matheson, Deputy Legal Adviser, Department of State, Remarks on the United States Position on the
Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions at the
Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law
(Jan. 22, 1987), 2 AMERICAN UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLICY 419, 426-27 (1987) (“We
support the principle that all practicable precautions, taking into account military and humanitarian considerations,
be taken in the conduct of military operations to minimize incidental death, injury, and damage to civilians and
civilian objects, and that effective advance warning be given of attacks which may affect the civilian population,
unless circumstances do not permit.”).
33 See, e.g., U.S. Comments on the International Committee of the Red Cross’s Memorandum on the Applicability of
International Humanitarian Law in the Gulf Region, Jan. 11, 1991, DIGEST OF UNITED STATES PRACTICE IN
INTERNATIONAL LAW 1991-1999 2057, 2063 (“A defender must exercise reasonable precaution to separate the
civilian population and civilian objects from military objectives.”); 1956 FM 27-10 (Change No. 1 1976) ¶41
(“Those who plan or decide upon an attack, therefore, must take all reasonable steps to ensure not only that the
objectives are identified as military objectives or defended places within the meaning of the preceding paragraph but
also that these objectives may be attacked without probable losses in lives and damage to property disproportionate
to the military advantage anticipated.”); Neville Chamberlain, Prime Minster, United Kingdom, Statement before the
House of Commons, Jun. 21, 1938, HANSARD, 337 HOUSE OF COMMONS DEBATES §§ 937 (“[R]easonable care must
be taken in attacking those military objectives so that by carelessness a civilian population in the neighbourhood is
not bombed.”).
34 United States, Statement on Consent to Be Bound by the CCW Amended Mines Protocol, May 24, 1999, 2065
UNTS 128, 129 (“The United States reserves the right to use other devices (as defined in Article 2(5) of the
Amended Mines Protocol) to destroy any stock of food or drink that is judged likely to be used by an enemy military
force, if due precautions are taken for the safety of the civilian population.”).
35 U.N. GENERAL ASSEMBLY RESOLUTION 2675, Basic Principles for the Protection of Civilian Populations in
Armed Conflict, U.N. Doc. A/8028 (Dec. 9, 1970) (“In the conduct of military operations, every effort should be
made to spare the civilian populations from the ravages of war, and all necessary precautions should be taken to
avoid injury, loss or damage to civilian populations.”); HAGUE IX art. 5 (“In bombardments by naval forces all the
necessary measures must be taken by the commander to spare as far as possible sacred edifices, buildings used for
artistic, scientific, or charitable purposes, historic monuments, hospitals, and places where the sick or wounded are
collected, on the understanding that they are not used at the same time for military purposes.”).
36 See also Neville Chamberlain, Prime Minster, United Kingdom, Statement before the House of Commons, Jun. 21,
1938, HANSARD, 337 HOUSE OF COMMONS DEBATES §§ 937-939 (“[R]easonable care must be taken in attacking
189
Feasible precautions are those that are practicable or practically possible, taking into
account all circumstances ruling at the time, including humanitarian and military
considerations.38 These circumstances may include:
• the effect of taking the precaution on mission accomplishment;
• whether taking the precaution poses a risk to one’s own forces or presents other security
risks;
• the likelihood and degree of humanitarian benefit from taking the precaution;
• the cost of taking the precaution, in terms of time, resources, or money; or
• whether taking the precaution forecloses alternative courses of action.
those military objectives so that by carelessness a civilian population in the neighbourhood is not bombed. … I say
that reasonable care must be taken, in attacking military objectives, not to go outside those objectives, but it is
extremely difficult in practice to determine whether in fact the dropping of bombs which have killed civilians in the
neighbourhood of military objectives is the result of want of care or not. Suppose a man makes a bad shot, which is
not at all unlikely when machines are going at over 300 miles an hour and when, as I am informed, in taking aim
you have to release the bomb miles away from its objective—it seems to me that it is extremely difficult to lay down
exactly the point at which reasonable care turns into unreasonable want of care.”).
37 U.S. Comments on the International Committee of the Red Cross’s Memorandum on the Applicability of
International Humanitarian Law in the Gulf Region, Jan. 11, 1991, DIGEST OF UNITED STATES PRACTICE IN
INTERNATIONAL LAW 1991-1999 2057, 2064 (“While it is difficult to weigh the possibility of collateral civilian
casualties on a target-by-target basis, minimization of collateral civilian casualties is a continuing responsibility at
all levels of the targeting process. Combat is a give-and-take between attacker and defender, and collateral civilian
casualties are likely to occur notwithstanding the best efforts of either party. What is prohibited is wanton disregard
for possible civilian casualties.”).
38 See CCW PROTOCOL III ON INCENDIARY WEAPONS art. 1(5) (“‘Feasible precautions’ are those precautions which
are practicable or practically possible taking into account all circumstances ruling at the time, including
humanitarian and military considerations.”); CCW AMENDED MINES PROTOCOL art. 3(10) (“Feasible precautions are
those precautions which are practicable or practically possible taking into account all circumstances ruling at the
time, including humanitarian and military considerations.”); CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR
art. 5(1) (“Feasible precautions are those precautions which are practicable or practicably possible, taking into
account all circumstances ruling at the time, including humanitarian and military considerations.”). Cf. United
Kingdom, Statement on Ratification of AP I, Jan. 28, 1998, 2020 UNTS 75, 76 (“The United Kingdom understands
the term ‘feasible’ as used in the Protocol to mean that which is practicable or practically possible, taking into
account all circumstances ruling at the time, including humanitarian and military considerations.”); Canada,
Statement on Ratification of AP I, Nov. 20, 1990, 1591 UNTS 462, 464 (“It is the understanding of the Government
of Canada that, in relation to Articles 41, 56, 57, 58, 78 and 86 the [word] ‘feasible’ means that which is practicable
or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military
considerations.”); Germany, Statement on Ratification of AP I, Feb. 14, 1991, 1607 UNTS 526, 529 (“The Federal
Republic of Germany understands the word ‘feasible’ in Articles 41, 56, 57, 58, 78 and 86 of Additional Protocol I
to mean that which is practicable or practically possible, taking into account all circumstances ruling at the time
including humanitarian and military considerations.”); Netherlands, Statement on Ratification of AP I, Jun. 26, 1987,
1477 UNTS 300 (“With regard to Article 41, paragraph 3, Article 56, paragraph 2, Article 57, paragraph 2, Article
58, Article 78, paragraph 1, and Article 86, paragraph 2 of Protocol I: It is the understanding of the Government of
the Kingdom of the Netherlands that the word ‘feasible’ means that which is practicable or practically possible,
taking into account all circumstances ruling at the time, including humanitarian and military considerations.”).
190
For example, if a commander determines that taking a precaution would result in
operational risk (i.e., a risk of failing to accomplish the mission) or an increased risk of harm to
their own forces, then the precaution would not be feasible and would not be required.39
Similarly, taking a precaution would not be required if it is assessed not to yield a
humanitarian benefit. For example, issuing a warning before an attack would not be required
when civilians are not present.40 Moreover, it would not be required to use distinctive emblems
to identify civilians and civilian objects as such, if enemy forces are likely to use that
information to direct attacks against those civilians and civilian objects.41
Since what precautions are feasible depends greatly on the context and other military
considerations, it would be inaccurate to conclude that specific precautions are required as a
general rule. For example, there is not a general requirement to use precision-guided
munitions.42 Nonetheless, military commanders must make reasonable efforts to reduce the risk
of harm to civilians and civilian objects.
5.3.3.3 Requirements to Take Precautions Regarding Specific Weapons. In
addition to the general obligation to take feasible precautions to reduce the risk of harm to the
civilian population and other protected persons and objects, it is specifically provided that
precautions be taken in connection with certain types of weapons:
• mines, booby-traps, or other devices;43
• incendiary weapons; 44
• laser systems;45 and
• explosive ordnance.46
39 U.S. Comments on the International Committee of the Red Cross’s Memorandum on the Applicability of
International Humanitarian Law in the Gulf Region, Jan. 11, 1991, DIGEST OF UNITED STATES PRACTICE IN
INTERNATIONAL LAW 1991-1999 2057, 2063 (“‘Feasible precautions’ are reasonable precautions, consistent with
mission accomplishment and allowable risk to attacking forces. While collateral damage to civilian objects should
be minimized, consistent with the above, collateral damage to civilian objects should not be given the same level of
concern as incidental injury to civilians. Measures to minimize collateral damage to civilian objects should not
include steps that will place U.S. and allied lives at greater or unnecessary risk.”).
40 Refer to § 5.11.1 (Effective Advance Warning Before an Attack That May Affect the Civilian Population).
41 Refer to § 5.14.4 (Using Distinctive and Visible Signs to Identify Protected Persons and Objects as Such).
42 Refer to § 5.11.3 (Selecting Weapons (Weaponeering)).
43 Refer to § 6.12.5.3 (Obligation to Take Feasible Precautions to Protect Civilians From the Effects of Mines,
Booby-Traps, and Other Devices).
44 Refer to § 6.14.3 (Restrictions on the Use of Incendiary Weapons).
45 Refer to § 6.15.2 (Feasible Precautions in the Employment of Laser Systems to Avoid the Incident of Permanent
Blindness).
46 Refer to § 6.19.2 (Using Explosive Ordnance); § 6.19.3 (Abandoning Explosive Ordnance).
191
5.3.3.4 AP I Obligation to Take Constant Care to Spare Civilians and Civilian
Objects. Parties to AP I have agreed that “[i]n the conduct of military operations, constant care
shall be taken to spare the civilian population, civilians and civilian objects.”47 Although this
obligation is susceptible to a range of interpretations, Parties to AP I may also interpret it in a
manner that is consistent with the discussion in this section.
5.4 ASSESSING INFORMATION UNDER THE LAW OF WAR
Commanders and other decision-makers must make decisions in good faith and based on
the information available to them. Even when information is imperfect or lacking (as will
frequently be the case during armed conflict), commanders and other decision-makers may direct
and conduct military operations, so long as they make a good faith assessment of the information
that is available to them at that time.48
5.4.1 Law of War Rules Often Depend on Difficult Factual Assessments. Many of the
rules for the conduct of hostilities require determinations of fact that may be difficult to make.
The special circumstances of armed conflict often make an accurate determination of
facts very difficult.49 For example, combatants must make decisions while enemy forces are
attempting to attack them50 and while enemy forces are seeking to deceive them.51 In addition,
the importance of prevailing during armed conflict52 often justifies taking actions based upon
limited information that would be considered unreasonable outside armed conflict.53
Thus, for example, it may be difficult to discern whether a person is a combatant, a
civilian, or a civilian taking a direct part in hostilities. Similarly, it may be difficult to assess the
degree to which an object makes an effective contribution to the adversary’s military action or to
assess the concrete and direct military advantage anticipated from an attack.
5.4.2 Decisions Must Be Made in Good Faith and Based on Information Available at the
Time. Decisions by military commanders or other persons responsible for planning, authorizing,
47 AP I art. 57(1).
48 APPENDIX TO 1985 CJCS MEMO ON AP I 52 (“Commanders and other military personnel who make decisions in
the fog of war must do so in good faith and on the basis of whatever information they have available at the time.
Such decisions will almost never be free of ‘doubt,’ either subjective or objective.”).
49 Refer to § 1.4.2.2 (Nature of War - Limited and Unreliable Information - “Fog of War”).
50 Cf. Brown v. United States, 256 U.S. 335, 343 (1921) (“Detached reflection cannot be demanded in the presence
of an uplifted knife. Therefore in this Court, at least, it is not a condition of immunity that one in that situation
should pause to consider whether a reasonable man might not think it possible to fly with safety or to disable his
assailant rather than to kill him.”).
51 Refer to § 5.25 (Ruses of War and Other Lawful Deceptions).
52 Refer to § 1.4.1 (Object of War).
53 Korematsu v. United States, 323 U.S. 214, 244 (1944) (Jackson, J., dissenting) (“The very essence of the military
job is to marshal physical force, to remove every obstacle to its effectiveness, to give it every strategic advantage.
Defense measures will not, and often should not, be held within the limits that bind civil authority in peace. No
court can require such a commander in such circumstances to act as a reasonable man; he may be unreasonably
cautious and exacting. Perhaps he should be.”).
192
or executing military action must be made in good faith and based on their assessment of the
information available to them at the time.54 A large number of States have recognized this
principle.55 This principle has also been reflected in the decisions of courts assessing individual
responsibility under the law of war, which have declined to second-guess military decisions with
the benefit of hindsight.56
The requirement that military commanders and other decision-makers make decisions in
good faith based on the information available to them recognizes that decisions may be made
when information is imperfect or lacking, which will often be the case during armed conflict.
54 See United States, Statement on Consent to Be Bound by CCW Protocol III on Incendiary Weapons, Jan. 21, 2009,
2562 UNTS 36, 37 (“[A]ny decision by any military commander, military personnel, or any other person responsible
for planning, authorizing or executing military action shall only be judged on the basis of that person’s assessment
of the information reasonably available to the person at the time the person planned, authorized, or executed the
action under review, and shall not be judged on the basis of information that comes to light after the action under
review was taken.”).
55 See, e.g., Australia, Statement on Ratification of AP I, Jun. 21, 1991, 1642 UNTS 473 (“In relation to Articles 51
to 58 inclusive it is the understanding of Australia that military commanders and others 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.”); Austria, Statement on Ratification of
AP I, Feb. 13, 1983, 1289 UNTS 303 (“Article 57, paragraph 2, of Protocol I shall be applied to the extent that, for
any decision taken by a military commander, the information actually available at the time of the decision is the
determining factor.”); Canada, Statement on Ratification of AP I, Nov. 20, 1990, 1591 UNTS 462, 464 (“It is the
understanding of the Government of Canada that, in relation to Articles 48, 51 to 60 inclusive, 62 and 67, military
commanders and others responsible for planning, deciding upon or executing attacks have to reach decisions on the
basis of their assessment of the information 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.”); Italy, Statement on
Ratification of AP I, Feb. 27, 1986, 1425 UNTS 438, 439 (“In relation to Articles 51 to 58 inclusive, the Italian
Government understands 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.”); Netherlands, Statement on Ratification of AP I, Jun. 26, 1987, 1477
UNTS 300 (“With regard to Articles 51 to 58 inclusive of Protocol I: It is the understanding of the Government of
the Kingdom of the Netherlands 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;”); Spain, Statement on Ratification of AP I, Apr. 21, 1989,
1537 UNTS 389, 392 (“It is understood that decisions by military authorities or others with legal powers to plan or
carry out attacks which might affect civilian personnel goods or other effects, necessarily shall not be made on any
basis other than that of relevant information available at the time in question and obtained for that purpose.”);
Switzerland, Statement on Ratification of AP I, Feb. 17, 1982, 1271 UNTS 409 (“The provisions of article 57,
paragraph 2, create obligations only for battalion or group commanders and higher-echelon commanders. The
information available to the commanders at the time of the decision shall be the determining factor.”); United
Kingdom, Statement on Ratification of AP I, Jan. 28, 1998, 2020 UNTS 75, 76 (“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 reasonably available to them at the relevant time.”).
56 United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1295-96 (“It
was with this situation confronting him that he [the defendant, Rendulic] carried out the ‘scorched earth’ policy in
the Norwegian province of Finmark which provided the basis for this charge [of wanton destruction of property] of
the indictment. … There is evidence in the record that there was no military necessity for this destruction and
devastation. An examination of the facts in restrospect can well sustain this conclusion. But we are obliged to judge
the situation as it appeared to the defendant at the time. If the facts were such as would justify the action by the
exercise of judgment, after giving consideration to all the factors and existing possibilities, even though the
conclusion reached may have been faulty, it cannot be said to be criminal.”).
193
5.5 RULES ON CONDUCTING ASSAULTS, BOMBARDMENTS, AND OTHER ATTACKS
Combatants may conduct assaults, bombardments, and other attacks, but a number of
rules apply to these operations.
5.5.1 Notes on Terminology - Protection From “Attack As Such,” “Being Made the
Object of Attack,” “Direct Attack,” and “Intentional Attack” Versus Protection From
“Incidental” or “Collateral” Harm. A variety of formulations have been commonly used to
distinguish between: (1) the protection from being made the object of attack (i.e., the attack is
purposefully directed against that person or object) and (2) the protection from the incidental
effects of an attack (i.e., the object or person is not the object of the attack, but is collaterally
harmed by the attack).
These situations are treated quite differently under the law of war.57 In the former case, it
is often said that protected persons and objects are protected “as such,”58 from “direct attack,”59
from “intentional attack,”60 “from attack directed exclusively against them,”61 or from being
made the “object of attack.”62 Sometimes a combination of these formulations has been used.
In some cases, a text may not use any qualification (e.g., “direct attack” or “as such,”),
but is understood to refer only to the first category of protection. For example, Article 52 of AP
I provides that “[a]ttacks shall be limited strictly to military objectives.”63 However, this article
has been understood to comprise only an obligation not to direct attacks against civilian objects
and not to address the question of incidental harm resulting from attacks directed against military
57 See, e.g., United States v. Ohlendorf, et al. (The Einsatzgruppen Case), IV TRIALS OF WAR CRIMINALS BEFORE
THE NMT 411, 467 (“A city is bombed for tactical purposes; communications are to be destroyed, railroads wrecked,
ammunition plants demolished, factories razed, all for the purpose of impeding the military. In these operations it
inevitably happens that nonmilitary persons are killed. This is an incident, a grave incident to be sure, but an
unavoidable corollary of battle action. The civilians are not individualized. The bomb falls, it is aimed at the
railroad yards, houses along the tracks are hit and many of their occupants killed. But that is entirely different, both
in fact and in law, from an armed force marching up to these same railroad tracks, entering those houses abutting
thereon, dragging out the men, women, and children and shooting them.”).
58 See, e.g., 1956 FM 27-10 (Change No. 1 1976) ¶40a (“Customary international law prohibits the launching of
attacks (including bombardment) against either the civilian population as such or individual civilians as such.”)
(emphasis added).
59 2004 UK MANUAL ¶5.3.2 (“A civilian is a non-combatant. He is protected from direct attack and is to be
protected against dangers arising from military operations.”) (emphasis added).
60 Department of Defense, Report to the Senate and House Appropriations Committees regarding international
policies and procedures regarding the protection of natural and cultural resources during times of war, Jan. 19,
1993, reprinted as Appendix VIII in Patrick J. Boylan, Review of the Convention for the Protection of Cultural
Property in the Event of Armed Conflict (The Hague Convention of 1954) 201, 204 (1993) (“Like any civilian
object, cultural property is protected from intentional attack so long as it is not used for military purposes, or to
shield military objectives from attack.”).
61 See, e.g., 1956 FM 27-10 (Change No. 1 1976) ¶25 (“However, it is a generally recognized rule of international
law that civilians must not be made the object of attack directed exclusively against them.”) (emphasis added).
62 AP I art. 51(2) (“The civilian population as such, as well as individual civilians, shall not be the object of attack.”)
(emphasis added).
63 AP I art. 52(2).
194
objectives.64
This manual generally uses the phrase “object of attack” to convey the idea that the attack
is being purposefully directed against that person or object.
This manual generally uses the term “incidental harm” to refer to the death or injury to
civilians, or the destruction of or damage to civilian objects, that is incidentally (but potentially
knowingly) caused as a collateral consequence of an attack directed against a military
objective.65
5.5.2 Overview of Rules in Conducting Attacks. Parties to a conflict must conduct
attacks in accordance with the principles of distinction and proportionality. In particular, the
following rules must be observed:
• Combatants may make military objectives the object of attack, but may not direct attacks
against civilians, civilian objects, or other protected persons and objects.66
• Combatants must refrain from attacks in which the expected loss of life or injury to
civilians, and damage to civilian objects incidental to the attack, would be excessive in
relation to the concrete and direct military advantage expected to be gained.67
• Combatants must take feasible precautions in conducting attacks to reduce the risk of
harm to civilians and other protected persons and objects.68
• In conducting attacks, combatants must assess in good faith the information that is
available to them.69
• Combatants may not kill or wound the enemy by resort to perfidy.70
• Specific rules apply to the use of certain types of weapons.71
64 See, e.g., United Kingdom, Statement on Ratification of AP I, Jan. 28, 1998, 2020 UNTS 75, 77 (“The first
sentence of paragraph 2 prohibits only such attacks as may be directed against non-military objectives; it does not
deal with the question of collateral damage resulting from attacks directed against military objectives.”); Canada,
Statement on Ratification of AP I, Nov. 20, 1990, 1591 UNTS 462, 465 (“The first sentence of paragraph 2 of the
Article is not intended to, nor does it, deal with the question of incidental or collateral damage resulting from an
attack directed against a military objective.”).
65 Refer to § 5.12 (Proportionality in Conducting Attacks).
66 Refer to § 5.6 (Discrimination in Conducting Attacks).
67 Refer to § 5.12 (Proportionality in Conducting Attacks).
68 Refer to § 5.11 (Feasible Precautions in Conducting Attacks to Reduce the Risk of Harm to Protected Persons and
Objects).
69 Refer to § 5.5.3 (Assessing Information in Conducting Attacks).
70 Refer to § 5.22 (Treachery or Perfidy Used to Kill or Wound).
71 Refer to § 6.5.1 (Certain Types of Weapons With Specific Rules on Use).
195
5.5.3 Assessing Information in Conducting Attacks. Persons who plan, authorize, or
make other decisions in conducting attacks must make the judgments required by the law of war
in good faith and on the basis of information available to them at the time.72 For example, a
commander must, on the basis of available information, determine in good faith that a target is a
military objective before authorizing an attack. Similarly, the expected incidental damage to
civilians or civilian objects must be assessed in good faith, given the information available to the
commander at the time.
In making the judgments that are required by the law of war rules governing attacks,
persons may rely on information obtained from other sources, including human intelligence or
other sources of information.73 For example, in a long-distance attack, a commander may rely
on information obtained from aerial reconnaissance and intelligence units in determining
whether to conduct an attack.74
5.5.3.1 Heightened Identification Requirements in Conducting Attacks. Although
doing so would exceed the requirements of the law of war, applying heightened standards of
identification may be a policy choice to reduce the risk of incidental harm in conducting an
attack.75
72 Refer to § 5.4 (Assessing Information Under the Law of War).
73 ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign
Against the Federal Republic of Yugoslavia, ¶84 (Jun. 13, 2000) (“The building hit was clearly a civilian object and
not a legitimate military objective. … It is the opinion of the committee … that it is inappropriate to attempt to
assign criminal responsibility for the incident to senior leaders because they were provided with wrong information
by officials of another agency.”).
74 ICRC AP COMMENTARY 681 (¶2195) (“In the case of long-distance attacks, information will be obtained in
particular from aerial reconnaissance and from intelligence units, which will of course attempt to gather information
about enemy military objectives by various means.”).
75 For example, The White House, Office of the Press Secretary, Fact Sheet: U.S. Policy Standards and Procedures
for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities, May
23, 2013 (In counterterrorism operations, “lethal force will be used outside areas of active hostilities only when the
following preconditions are met: … Third, the following criteria must be met before lethal action may be taken: 1)
Near certainty that the terrorist target is present; 2) Near certainty that non-combatants will not be injured or
killed;”); Coalition Forces Land Component Command (CFLCC) Rules of Engagement (ROE) Card, Iraq (2003),
reprinted in CENTER FOR LAW AND MILITARY OPERATIONS, THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER &
SCHOOL, U.S. ARMY, I LEGAL LESSONS LEARNED FROM AFGHANISTAN AND IRAQ: MAJOR COMBAT OPERATIONS
(11 SEPTEMBER 2001 - 1 MAY 2003) 314 (2004) (“1. On order, enemy military and paramilitary forces are declared
hostile and may be attacked subject to the following instructions: a. Positive Identification (PID) is required prior to
engagement. PID is a reasonable certainty that the proposed target is a legitimate military target. If no PID, contact
your next higher commander for decision.”); FINAL REPORT ON THE PERSIAN GULF WAR 177 (“Attack procedures
specified that if the pilot could not positively identify his target or was not confident the weapon would guide
properly (because of clouds, for example), he could not deliver that weapon. Several attack sorties were forced to
return with their bombs for this reason.”); U.S. MILITARY ASSISTANCE COMMAND VIET-NAM DIRECTIVE 525-13,
Military Operations: Rules of Engagement for the Employment of Firepower in the Republic of Vietnam, ¶6a (May
1971), reprinted in 1975 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 814, 815 (“All possible
means will be employed to limit the risk to the lives and property of friendly forces and civilians. In this respect, a
target must be clearly identified as hostile prior to making a decision to place fire on it.”) (“All possible means will
be employed to limit the risk to the lives and property of friendly forces and civilians. In this respect, a target must
be clearly identified as hostile prior to making a decision to place fire on it.”).
196
5.5.3.2 AP I Presumptions in Favor of Civilian Status in Conducting Attacks. In
the context of conducting attacks, certain provisions of AP I reflect a presumption in favor of
civilian status in cases of doubt. Article 52(3) of AP I provides that “[i]n case of doubt whether
an object which is normally dedicated to civilian purposes, such as a place of worship, a house or
other dwelling or a school, is being used to make an effective contribution to military actions, it
shall be presumed not to be so used.”76 Article 50(1) of AP I provides that “[i]n case of doubt
whether a person is a civilian, that person shall be considered to be a civilian.”
Under customary international law, no legal presumption of civilian status exists for
persons or objects, nor is there any rule inhibiting commanders or other military personnel from
acting based on the information available to him or her in doubtful cases.77 Attacks, however,
may not be directed against civilians or civilian objects based on merely hypothetical or
speculative considerations regarding their possible current status as a military objective. In
assessing whether a person or object that normally does not have any military purpose or use is a
military objective, commanders and other decision-makers must make the decision in good faith
based on the information available to them in light of the circumstances ruling at the time.
A legal presumption of civilian status in cases of doubt may demand a degree of certainty
that would not account for the realities of war.78 Affording such a presumption could also
encourage a defender to ignore its obligation to separate military objectives from civilians and
civilian objects.79 For example, unprivileged belligerents may seek to take advantage of a legal
presumption of civilian status.80 Thus, there is concern that affording such a presumption likely
would increase the risk of harm to the civilian population and tend to undermine respect for the
law of war.
76 AP I art. 52(3). See also BOTHE, PARTSCH, & SOLF, NEW RULES 326 (AP I art. 52, ¶2.5.1) (“It should be noted
that the presumption applies only as to objects which normally do not have any significant military use or purpose.
The committee deleted from the illustrative list proposed by the ICRC in draft Art. 47, the phrase ‘installations and
means of transport’, thus indicating an intent by the Conference that the presumption should not apply to objects
which are of such a nature that their value to military action in combat situations is probable. Means of transport
and of communication fall into a category where their use for military purposes cannot be excluded through a
presumption.”).
77 See, e.g., Christopher Greenwood, Customary international law and the First Geneva Protocol of 1977 in the Gulf
conflict, in PETER ROWE, THE GULF WAR 1990-91 IN INTERNATIONAL AND ENGLISH LAW 63, 75 (1993) (“[I]t is very
doubtful that Article 52(3) represents customary international law.”); BOTHE, PARTSCH, & SOLF, NEW RULES 327
(AP I art. 52, ¶2.5.2) (quoting a Rapporteur’s observation at the Diplomatic Conference that a presumption “will be
a significant new addition to the law”).
78 Refer to § 1.4.2.2 (Nature of War - Limited and Unreliable Information - “Fog of War”).
79 See FINAL REPORT ON THE PERSIAN GULF WAR 616 (“This language, which is not a codification of the customary
practice of nations, causes several things to occur that are contrary to the traditional law of war. It shifts the burden
for determining the precise use of an object from the party controlling that object (and therefore in possession of the
facts as to its use) to the party lacking such control and facts, i.e., from defender to attacker. This imbalance ignores
the realities of war in demanding a degree of certainty of an attacker that seldom exists in combat. It also
encourages a defender to ignore its obligation to separate the civilian population, individual civilians and civilian
objects from military objectives, as the Government of Iraq illustrated during the Persian Gulf War.”).
80 See APPENDIX TO 1985 CJCS MEMO ON AP I 53 (rejecting the presumption of civilian status in AP I because
“[t]his presumption also provides an additional protection for guerillas and other irregulars who may find it
advantageous to be presumed to be a civilian rather than a combatant.”).
197
In applying its rules on “doubt,” some Parties to AP I have interpreted these rules in a
more limited way (e.g., applying a “substantial doubt” standard) than its text would suggest.81
5.5.4 Failure by the Defender to Separate or Distinguish Does Not Relieve the Attacker
of the Duty to Discriminate in Conducting Attacks. A party that is subject to attack might fail to
take feasible precautions to reduce the risk of harm to civilians, such as by separating the civilian
population from military objectives.82 Moreover, in some cases, a party to a conflict may
attempt to use the presence or movement of the civilian population or individual civilians in
order to shield military objectives from seizure or attack.83
When enemy persons engage in such behavior, commanders should continue to seek to
discriminate in conducting attacks and to take feasible precautions to reduce the risk of harm to
the civilian population and civilian objects.84 However, the ability to discriminate and to reduce
the risk of harm to the civilian population likely will be diminished by such enemy conduct. In
addition, such conduct by the adversary does not increase the legal obligations of the attacking
party to discriminate in conducting attacks against the enemy.85
5.5.5 Permissible Location of Attacks. In general, attacks may be conducted against
military objectives wherever located, outside neutral territory.86 Attacks, however, may not be
conducted in special zones established by agreement between the belligerents, such as hospital,
safety, or neutralized zones.87
81 See, e.g., 2004 UK MANUAL ¶5.3.4 (“In the practical application of the principle of civilian immunity and the rule
of doubt, (a) 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, (b) it is only in cases of substantial doubt, after this assessment about the status of the individual in
question, that the latter should be given the benefit of the doubt and treated as a civilian, and (c) the rule of doubt
does not override the commander’s duty to protect the safety of troops under his command or to preserve the
military situation.”).
82 Refer to § 5.14 (Feasible Precautions to Reduce the Risk of Harm to Protected Persons and Objects by the Party
Subject to Attack).
83 Refer to § 5.16 (Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede Military
Operations).
84 See FINAL REPORT ON THE PERSIAN GULF WAR 615 (“As correctly stated in Article 51(8) of Protocol I, a nation
confronted with callous actions by its opponent (such as the use of ‘human shields’) is not released from its
obligation to exercise reasonable precaution to minimize collateral injury to the civilian population or damage to
civilian objects. This obligation was recognized by Coalition forces in the conduct of their operations.”).
85 See W. Hays Parks, Air War and the Law of War, 32 AIR FORCE LAW REVIEW 1, 163 (1990) (“While an attacker
facing a target shielded from attack by civilians is not relieved from his duty to exercise reasonable precautions to
minimize the loss of civilian life, neither is he obligated to assume any additional responsibility as a result of the
illegal acts of the defender. Were an attacker to do so, his erroneous assumption of additional responsibility with
regard to protecting the civilians shielding a lawful target would serve as an incentive for a defender to continue to
violate the law of war by exposing other innocent civilians to similar risk.”).
86 Refer to § 15.3.1.2 (Inviolability of Neutral Territory - Prohibition on Hostile Acts or Other Violations of
Neutrality).
87 Refer to § 5.14.3 (Establishing Areas Where Civilians or the Wounded and Sick Are Protected).
198
Attacks on military objectives in the enemy rear or diversionary attacks away from the
current theaters or zones of active military operations are lawful.88 The law of war does not
require that attacks on enemy military personnel or objectives be conducted near ongoing
fighting, in a theater of active military operations, or in a theater of active armed conflict.89
There are many examples of lawful attacks taking place far from where the fighting was
previously taking place.90
For policy or operational reasons, military orders, such as applicable rules of
engagement, may limit the locations where attacks on otherwise lawful military objectives may
be conducted.
5.5.6 Force That May Be Applied Against Military Objectives. In the absence of
expected harm to civilians and civilian objects or of wanton destruction that is not justified by
military necessity, the law of war imposes no limit on the degree of force that may be directed
against enemy military objectives, including enemy military personnel (but not including enemy
personnel who are placed hors de combat).91 For example, the principle of military necessity
does not require that only the minimum force that is actually necessary in a specific situation
88 Refer to § 5.7.7.3 (Definite Military Advantage).
89 John O. Brennan, Assistant to the President for Homeland Security and Counterterrorism, Speech at the Wilson
Center: The Ethics and Efficacy of the President’s Counterterrorism Strategy, Apr. 30, 2012, 2012 DIGEST OF
UNITED STATES PRACTICE IN INTERNATIONAL LAW 584, 585 (“There is nothing in international law … that prohibits
us from using lethal force against our enemies outside of an active battlefield, at least when the country involved
consents or is unable or unwilling to take action against the threat.”).
90 For example, John D. Negroponte, Letter dated 7 October 2001 from the Permanent Representative of the United
States of America to the United Nations addressed to the President of the Security Council, U.N. Doc. No.
S/2001/946 (Oct. 7, 2001) (informing the U.N. Security Council that “the United States of America, together with
other States, has initiated actions in the exercise of its inherent right of individual and collective self-defence
following the armed attacks that were carried out against the United States on 11 September 2001” including U.S.
military operations against al-Qaida and the Taliban in Afghanistan); LOUIS MORTON, UNITED STATES ARMY IN
WORLD WAR II, THE WAR IN THE PACIFIC, STRATEGY AND COMMAND: THE FIRST TWO YEARS, 269-74 (1962)
(describing U.S. bombing raid led by Lt. Col. James H. Doolittle on April 18, 1942, against military objectives in
Tokyo).
91 See Refresher Course for Battalion and Brigade Commanders, ¶11, Appendix B in DEPARTMENT OF THE ARMY
SUBJECT SCHEDULE 27-1, The Geneva Conventions of 1949 and Hague Convention No. IV of 1907, 16 (Aug. 29,
1975) (“Nowhere in the law of war will you find a prohibition on shooting—and shooting to kill—the enemy in a
firefight. On the battlefield the regrettable but necessary reality is kill or be killed. Once the enemy has
surrendered, however, or otherwise fallen into your hands, there is no need to kill him.”); J. Fred Buzhardt, DoD
General Counsel, Letter to Senator Edward Kennedy, Sept. 22, 1972, reprinted in 67 AJIL 122, 124 (1973) (“I
would like to reiterate that it is recognized by all states that they may not lawfully use their weapons against civilian
population or civilians as such, but there is no rule of international law that restrains them from using weapons
against enemy armed forces or military targets. The correct rule of international law which has applied in the past
and continued to apply to the conduct of our military operations in Southeast Asia is that ‘the loss of life and damage
to property must not be out of proportion to the military advantage to be gained.’”); ICRC AP COMMENTARY 620
(¶1953) (“The armed forces and their installations are objectives that may be attacked wherever they are, except
when the attack could incidentally result in loss of human life among the civilian population, injuries to civilians,
and damage to civilian objects which would be excessive in relation to the expected direct and specific military
advantage.”).
199
may be used against military objectives.92 Instead, the broader imperatives of winning the war
may be considered, and overwhelming force may be used against enemy military objectives.93
In addition, combatants need not offer opponents an opportunity to surrender before
carrying out an attack.94
In particular, the following practices are not prohibited:
(1) surprise attacks; (2) attacks
on retreating forces; (3) harassing fires; and (4) attacks on specific individuals.
5.5.6.1 Surprise Attacks. The law of war does not prohibit the use of surprise to
conduct attacks, such as the use of surprise in ambushes, sniper attacks, air raids, and attacks by
special operations forces carried out behind enemy lines.95 There is no requirement that an
enemy combatant must be warned before being attacked.96 Rather, warning requirements only
apply with respect to the civilian population.97
5.5.6.2 Attacks on Retreating Forces. Enemy combatants remain liable to attack
when retreating.98 Retreat is not the same as surrender. Retreating forces remain dangerous as
92 Refer to § 2.2.3.1 (Consideration of the Broader Imperatives of Winning the War).
93 See, e.g., 2007 NWP 1-14M ¶5.3.1 (“It is important to note that the principle of military necessity does not
prohibit the application of overwhelming force against enemy combatants, units and material consistent with the
principles of distinction and proportionality.”); AIR FORCE OPERATIONS & THE LAW 16 (2009) (“The prohibition of
unnecessary suffering does not limit the bringing of overwhelming firepower on an opposing military force in order
to subdue or destroy it.”).
94 See FINAL REPORT ON THE PERSIAN GULF WAR 629 (“A combatant force involved in an armed conflict is not
obligated to offer its opponent an opportunity to surrender before carrying out an attack.”).
95 For example, 1958 UK MANUAL ¶115 note 2 (“It is not forbidden to send a detachment or individual members of
the armed forces to kill, by sudden attack, members or a member of the enemy armed forces. Thus, for instance, the
raid by a British commando party on the headquarters of General Rommel’s African Army at Beda Littoria in 1943
was not contrary to the provisions of the Hague Rules. The operation was carried out by military personnel in
uniform; it had as part of its objective the seizure of Rommel’s operational headquarters, including his own
residence, and the capture or killing of enemy personnel therein, … .”); SPAIGHT, WAR RIGHTS ON LAND 87-88 (“A
surprise attack is a very different thing [from a treacherous one]. When a body of Federal cavalrymen made a
sudden descent on ‘Hickory Hill’ farm, in which the young Confederate General, W. F. H. Lee (son of the great
commander, R. E. Lee), was convalescing from a wound, and carried him off as a prisoner of war to Fortress
Munroe, they were guilty of no treachery under the laws of war. It was a fair and open raid.”).
96 See, e.g., W. Hays Parks, Special Assistant for Law of War Matters, Office of the Judge Advocate General, U.S.
Army, Memorandum re: Legality of Silencers/Suppressors 6 (Jun. 9, 1995) (“There is no law of war requirement
that a combatant must be ‘warned’ before he or she is subject to the application of lawful, lethal force. A landmine
provides no warning; neither does an ambush, a sniper, a machinegun in a concealed defensive position, a Claymore
munition in a defensive perimeter, a delayed action munition, a naval mine, or many other means or methods of
warfare. A sentry or personnel in a listening or observation post lawfully may be killed quietly, preferably through
surprise, by garrote or knife attack. A surface-to-air missile undetected by its targeted aircraft likewise kills by
surprise.”); W. Hays Parks, Special Assistant for Law of War Matters, Memorandum of Law—Legality of Snipers
(Sept. 29, 1992), reprinted in THE ARMY LAWYER 3 (Dec. 1992) (“The element of surprise is a fundamental
principle of war, and does not make an otherwise legitimate act of violence unlawful.”).
97 Refer to § 5.11.1.2 (That May Affect the Civilian Population).
98 FINAL REPORT ON THE PERSIAN GULF WAR 632 (“The law of war permits the attack of enemy combatants and
enemy equipment at any time, wherever located, whether advancing, retreating, or standing still. Retreat does not
prevent further attack. At the small-unit level, for example, once an objective has been seized and the position
200
the enemy force may recover to counterattack, consolidate a new defensive position, or assist the
war effort in other ways.99 Retreat may also be a ruse.100 Retreating enemy combatants may
have the same amount of force brought to bear upon them as an attacking military force, and a
military commander is under no obligation to limit force directed against enemy combatants
because they are, or appear to be, in retreat.
5.5.6.3 Harassing Fires. Harassing fires against enemy combatants are not
prohibited.
(Such action is clearly distinguishable from attacks to terrorize or otherwise harm the
civilian population, which are, of course, prohibited.) Harassing fires are delivered on enemy
locations for the purpose of disturbing enemy forces’ rest, curtailing their movement, or lowering
their morale.101
5.5.6.4 Attacks on Specific Individuals. Military operations may be directed
against specific enemy combatants.102 U.S. forces have often conducted such operations.103
consolidated, an attacking force is trained to fire upon the retreating enemy to discourage or prevent a
counterattack.”).
99 See FINAL REPORT ON THE PERSIAN GULF WAR 622 (“It is recognized by military professionals that a retreating
force remains dangerous. The First Marine Division and its 4,000 attached U.S. Army forces and British Royal
Marines, in the famous 1950 march out of the Chosin Reservoir in North Korea, fighting outnumbered by a 4:1
margin, turned its ‘retreat’ into a battle in which it defeated the 20th and 26th Chinese Armies trying to annihilate it,
… .”).
100 Refer to § 5.25.2 (Examples of Ruses).
101 APPENDIX TO 1985 CJCS MEMO ON AP I 47 (“Harassing fires are delivered on enemy locations for the purpose of
disturbing the rest, curtailing the movement, or lowering the morale of troops.”).
102 See, e.g., Harold Hongju Koh, Legal Adviser, Department of State, Address at the Annual Meeting of the
American Society of International Law: The Obama Administration and International Law, Mar. 25, 2010, 2010
DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 718 (“First, some have suggested that the very act of
targeting a particular leader of an enemy force in an armed conflict must violate the laws of war. But individuals
who are part of such an armed group are belligerents and, therefore, lawful targets under international law. …
Indeed, targeting particular individuals serves to narrow the focus when force is employed and to avoid broader
harm to civilians and civilian objects.”); 1956 FM 27-10 (Change No. 1 1976) ¶31 (“[The prohibition on killing or
wounding treacherously reflected the Hague IV Regulations] does not, however, preclude attacks on individual
soldiers or officers of the enemy whether in the zone of hostilities, occupied territory, or elsewhere.”).
103 For example, Barack Obama, Remarks by the President on Osama Bin Laden (May 2, 2011) (“Today, at my
direction, the United States launched a targeted operation against that compound [suspected of housing Osama Bin
Laden] in Abbottabad, Pakistan. A small team of Americans carried out the operation with extraordinary courage
and capability. No Americans were harmed. They took care to avoid civilian casualties. After a firefight, they
killed Osama bin Laden and took custody of his body.”); George W. Bush, Remarks on the Death of Senior Al
Qaeda Associate Abu Musab Al Zarqawi, Jun. 8, 2006, 2006-I PUBLIC PAPERS OF THE PRESIDENTS 1099 (describing
how after “work[ing] tirelessly with their Iraqi counterparts to track down this brutal terrorist,” U.S. “special
operation forces, acting on tips and intelligence from Iraqis, confirmed Zarqawi’s location” and killed him); JOHN
MILLER, CARTWHEEL: THE REDUCTION OF RABAUL 44 (Office of the Chief of Military History, Department of the
Army 1959) (“American intelligence officers had discovered the exact time on 18 April [Admiral] Yamamoto[,
Commander-in-Chief of the Japanese Combined Fleet,] was due to reach the Buin area … . [D]isposing of
Yamamoto would advance the Allied cause, so the Commander, Aircraft, Solomons, was told to shoot him down
[and did so successfully].”); Henry Pinckney McCain, Adjutant General of the U.S. Army, Telegram to General
Frederick Funston (Mar. 10, 1916), reprinted in PAPERS RELATING TO THE FOREIGN RELATIONS OF THE UNITED
STATES WITH THE ADDRESS OF THE PRESIDENT TO CONGRESS DECEMBER 5, 1916 (Department of State 1925)
201
5.5.7 Prohibition Against Declaring That No Quarter Be Given. It is forbidden to declare
that no quarter will be given.104 This means that it is prohibited to order that legitimate offers of
surrender will be refused or that detainees, such as unprivileged belligerents, will be summarily
executed.105 Moreover, it is also prohibited to conduct hostilities on the basis that there shall be
no survivors, or to threaten the adversary with the denial of quarter.106
This rule is based on both humanitarian and military considerations.107 This rule also
applies during non-international armed conflict.108
5.5.8 Obligation of Combatants to Distinguish Themselves When Conducting Attacks.
Combatants have certain obligations to distinguish themselves that include, but are not limited
to, those times when they conduct attacks.109 For example, militia and volunteer corps must
wear fixed, distinctive insignia, including when they are conducting attacks.110 In addition,
combatants may not kill or wound by resort to perfidy.111 Combatants may not fight in the
enemy’s uniform.112 Lastly, persons engaging in spying or sabotage risk additional penalties
under the domestic law of enemy States.113
5.5.8.1 Fighting Out of Uniform. Although military operations generally are
conducted while wearing a uniform or other distinctive emblems, there may be occasions, such
(relaying that the “President has directed that an armed force be sent into Mexico with the sole object of capturing
[Pancho] Villa and preventing any further raids by his band”).
104 HAGUE IV REG. art. 23(d) (noting that it is especially forbidden “[t]o declare that no quarter will be given;”).
Consider AP I art. 40 (“It is prohibited to order that there shall be no survivors, to threaten an adversary therewith or
to conduct hostilities on this basis.”).
105 ICRC AP COMMENTARY 476 (¶1595) (“[A]ny order of ‘liquidation’ is prohibited, whether it concerns
commandos, political or any other kind of commissars, irregular troops or so-called irregular troops, saboteurs,
parachutists, mercenaries or persons considered to be mercenaries, or other cases.”).
106 ICRC AP COMMENTARY 476 (¶1595) (“It is not only the order to put them to death that is prohibited, but also the
threat and the execution, with or without orders.”).
107 BOTHE, PARTSCH, & SOLF, NEW RULES 217 (AP I art. 40, ¶2.1) (“A declaration or order that there shall be no
survivors, or that no prisoners shall be taken, tends to stiffen the adversary’s will to resist and is therefore
counterproductive to the achievement of the legitimate objectives of a military operations. Moreover, it incites the
adversary to adopt a similar policy thus causing the conflict to degenerate into unrestrained savagery.”).
108 Refer to § 17.6.1 (Prohibition on Declaring That No Quarter Be Given).
109 See also ALLAN ROSAS, THE LEGAL STATUS OF PRISONERS OF WAR: A STUDY IN INTERNATIONAL
HUMANITARIAN LAW APPLICABLE IN ARMED CONFLICTS 351 (1976) (“What such proposals and statements [made in
the context of the negotiations for the 1949 Geneva Conventions] do seem to imply, however, is that in areas where
enemy forces are present (notably in occupied territory) members of independent (or of regular) forces are not
allowed to appear as part of the peaceful civilian population (e.g., as peasants or workers) while occasionally
committing hostile acts against the enemy (the ‘day-time civilian, night-time combatant’ -situation).”).
110 Refer to § 4.6.4 (Having a Fixed Distinctive Sign Recognizable at a Distance).
111 Refer to § 5.22 (Treachery or Perfidy Used to Kill or Wound).
112 Refer to § 5.23 (Use of Enemy Flags, Insignia, and Military Uniforms).
113 Refer to § 4.17 (Spies, Saboteurs, and Other Persons Engaging in Similar Acts Behind Enemy Lines).
202
as a surprise attack by enemy forces, when military personnel are unable to dress in their
uniforms before resisting the enemy’s assault.114
Military personnel not in uniform may resist an attack, so long as they are not wearing
the enemy’s uniform and do not kill or wound treacherously.115 For example, military personnel
not in uniform who resist an attack, and who do not purposefully seek to conceal their status as
combatants, commit no violation of the law of war and remain entitled to the privileges of
combatant status. The normal wearing of uniforms or other distinctive emblems, however,
should resume as soon as practicable because such wear helps protect the civilian population
from erroneous attack by helping to distinguish military forces from the civilian population.116
5.5.8.2 AP I Obligation for Combatants to Distinguish Themselves During Attacks
or Military Operations Preparatory to an Attack. AP I provides that: “combatants are obliged to
distinguish themselves from the civilian population while they are engaged in an attack or in a
military operation preparatory to an attack.”117
The AP I provision only partially describes the obligation under customary international
law of combatants to distinguish themselves from the civilian population. Under customary
international law, the obligation of combatants to distinguish themselves is a general obligation
that the armed forces have as a group and is not limited to times when they are engaged in an
attack or in a military operation preparatory to an attack.118 Moreover, measures such as wearing
insignia or other distinctive emblems may be of less practical significance during an attack.
During an attack, combatants are likely to be distinguishable based on their activities more than
any insignia or devices they are wearing.
5.6 DISCRIMINATION IN CONDUCTING ATTACKS
Under the principle of distinction, combatants may make enemy combatants and other
military objectives the object of attack, but may not make the civilian population and other
protected persons and objects the object of attack.119
5.6.1 Persons, Objects, and Locations That Are Not Protected From Being Made the
Object of Attack. Combatants may make enemy combatants and other military objectives the
object of attack.120
114 For example, SPAIGHT, AIR POWER AND WAR RIGHTS 101 (“In the second world war, too, there were instances in
which pilots fought en dishabille. For example, in Kenya a pilot of the South African Air Force happened to be
wearing nothing but a singlet when Italian bombers approached, and so clad (or unclad) he dashed to his aircraft and
joined in the fight.”).
115 Refer to § 5.23 (Use of Enemy Flags, Insignia, and Military Uniforms); § 5.22 (Treachery or Perfidy Used to Kill
or Wound).
116 Refer to § 5.14.5 (Carrying Arms Openly and Wearing of Distinctive Emblems by the Armed Forces to
Distinguish Themselves From the Civilian Population).
117 AP I art. 44(3).
118 Refer to § 4.6.1.1 (GPW 4A(2) Conditions Required on a Group Basis).
119 Refer to § 2.5.2 (Discriminating in Conducting Attacks Against the Enemy).
203
5.6.2 Persons, Objects, and Locations That Are Protected From Being Made the Object of
Attack. Persons, objects, and locations that are not military objectives may not be made the
object of attack. In particular, the following persons and objects may not be made the object of
attack, unless that protection is specifically forfeited under the circumstances:
•
Persons, such as
o individual civilians and the civilian population;121
o military medical and religious personnel, including military medical units;122
o combatants placed hors de combat;123 and
o parlementaires;124 and
•
Objects and locations, provided they are not military objectives, such as
o military medical transport, facilities, and equipment;125
o cultural property;126
o historic monuments, museums, scientific, artistic, educational and cultural
institutions;127
o places of worship;
o undefended villages, towns, or cities;128
o hospital and safety zones, and persons and objects within these zones;129 and
120 Refer to § 5.7 (Military Objectives).
121 Refer to § 4.8.2 (Civilians - Conduct of Hostilities).
122 Refer to § 4.10.1 (Military Medical and Religious Personnel - Conduct of Hostilities); § 7.8 (Respect and
Protection of Categories of Medical and Religious Personnel); § 7.10 (Military Medical Units and Facilities).
123 Refer to § 5.10 (Persons Placed Hors de Combat).
124 Refer to § 12.5.4 (Rights of Inviolability of the Parlementaire).
125 Refer to § 7.10 (Military Medical Units and Facilities).
126 Refer to § 5.18 (Protection of Cultural Property During Hostilities).
127 ROERICH PACT art. 1 (“The historic monuments, museums, scientific, artistic, educational and cultural institutions
shall be considered as neutral and as such respected and protected by belligerents. The same respect and protection
shall be due to the personnel of the institutions mentioned above. The same respect and protection shall be accorded
to the historic monuments, museums, scientific, artistic, educational and cultural institutions in time of peace as well
as in war.”).
128 Refer to § 5.15 (Undefended Cities, Towns, and Villages).
129 Refer to § 5.14.3.1 (Civilian Hospital and Safety Zones and Localities).
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o neutralized zones, and persons and objects within neutralized zones.130
5.7 MILITARY OBJECTIVES
Military objectives refers to persons and objects that may be made the object of attack.
Certain classes of persons and objects are categorically recognized as military objectives. Apart
from these classes that are categorically military objectives, other objects are assessed as to
whether they meet the definition of “military objective.”
5.7.1 Military Objective - Notes on Terminology. The term military objective has been
used in various treaties as a term of art to mean a person or object that may lawfully be made the
object of attack.131
5.7.1.1 Persons and Objects as Military Objectives. Although enemy combatants
may be made the object of attack, some sources do not classify persons as military objectives,
and limit the term military objective to objects.
Definitions of military objectives in treaties have defined the term military objective
insofar as objects (rather than persons) are concerned.132 In addition, the treaty definitions have
been written with the purpose of explaining when objects that normally are civilian objects have
become military objectives under the circumstances.
This manual uses the term military objective to include persons who may be made the
object of attack.133
5.7.1.2 Dual-Use Objects. Sometimes, “dual-use” is used to describe objects that
are used by both the armed forces and the civilian population, such as power stations or
communications facilities. However, from the legal perspective, such objects are either military
objectives or they are not; there is no intermediate legal category.134 If an object is a military
130 Refer to § 5.14.3.3 (Neutralized Zones).
131 See, e.g., CCW PROTOCOL III ON INCENDIARY WEAPONS art. 2(4) (referring to “combatants or other military
objectives”); 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 8(1) (referring to “any important military
objective constituting a vulnerable point”); GC art. 18 (“In view of the dangers to which hospitals may be exposed
by being close to military objectives, it is recommended that such [civilian] hospitals be situated as far as possible
from such objectives.”).
132 See CCW PROTOCOL III ON INCENDIARY WEAPONS art. 1(3) (“‘Military objective’ means, so far as objects are
concerned, any object which … .”); CCW AMENDED MINES PROTOCOL art. 2(6) (“‘Military objective’ means, so far
as objects are concerned, any object which … .”). Consider AP I art. 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 … .”).
133 Refer to § 5.7.2 (Persons Who Are Military Objectives).
134 Christopher Greenwood, Customary international law and the First Geneva Protocol of 1977 in the Gulf conflict,
in PETER ROWE, THE GULF WAR 1990-91 IN INTERNATIONAL AND ENGLISH LAW 63, 73 (1993) (“If an object is a
military objective, it may be attacked (subject to the requirements of the principle of proportionality which are
discussed in the next section), while if it is a civilian object, it may not be attacked. There is no intermediate
category of ‘dual use’ objects: either something is a military objective or it is not.”).
205
objective, it is not a civilian object and may be made the object of attack.135 However, it will be
appropriate to consider in a proportionality analysis the harm to the civilian population resulting
from the destruction of such a military objective.136
5.7.2 Persons Who Are Military Objectives. Certain classes of persons are military
objectives and may be made the object of attack.137 These classes of persons include:
• combatants, such as military ground, air, and naval units, or unprivileged belligerents;138
and
• civilians taking a direct part in hostilities.139
However, the following classes of persons are not military objectives:
• military medical and religious personnel, unless they commit acts harmful to the
enemy;140
• military medical units, unless they have forfeited their protected status;141
• combatants placed hors de combat;142 and
• parlementaires.143
5.7.3 Objects That Are Military Objectives. Military objectives, insofar as objects are
concerned, include “any object which by its nature, location, purpose or use makes 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.”144
135 CCW AMENDED MINES PROTOCOL art. 2(7) (“‘Civilian objects’ are all objects which are not military objectives
as defined in paragraph 6 of this Article.”).
136 Refer to § 5.12 (Proportionality in Conducting Attacks).
137 See CCW PROTOCOL III ON INCENDIARY WEAPONS art. 2(4) (referring to “combatants or other military
objectives”); ICRC AP COMMENTARY 635 (¶2017) (“It should be noted that the definition [of military objective in
AP I] is limited to objects but it is clear that members of the armed forces are military objectives, … .”).
138 Refer to § 5.8 (Combatants).
139 Refer to § 5.9 (Civilians Taking a Direct Part in Hostilities).
140 Refer to § 7.8.3 (Loss of Protection for Medical and Religious Personnel From Being Made the Object of Attack).
141 Refer to § 7.10.3 (Loss of Protection of Military Medical Units and Facilities From Being Made the Object of
Attack).
142 Refer to § 5.10 (Persons Placed Hors de Combat).
143 Refer to § 12.5.4 (Rights of Inviolability of the Parlementaire).
144 CCW AMENDED MINES PROTOCOL art. 2(6). See also CCW PROTOCOL III ON INCENDIARY WEAPONS art. 1(3)
(same); 10 U.S.C. § 950p(a)(1) (“The term ‘military objective’ means combatants and those objects during
hostilities which, by their nature, location, purpose, or use, effectively contribute to the war-fighting or war-
sustaining capability of an opposing force and whose total or partial destruction, capture, or neutralization would
206
This definition of military objective may be viewed as a way of evaluating whether
military necessity exists to attack an object.145 It may also be applied outside the context of
conducting attacks to assess whether the seizure or destruction of an object is justified by
military necessity.146
5.7.4 Objects Categorically Recognized as Military Objectives. Two types of objects are
categorically recognized as military objectives. In other words, the definition of military
objective is always considered to be met as a matter of law with regard to these objects. Thus,
these objects may be made the object of attack without specifically applying the analysis
discussed in § 5.7.5 (Definition of Military Objective for Objects: A Two-Part Test).
5.7.4.1 Military Equipment and Bases. First, certain objects belonging to the
armed forces and used in military operations are recognized as military objectives.147 This
includes:
• Military ground, air, and naval equipment (other than identifiable medical equipment or
transport),148 including vehicles, ships, weapons, munitions, and supplies, such as
o strategic and tactical integrated air defense systems;
o missile launching equipment and positions; and
o command and control equipment.
• Military bases, such as army, air, and naval bases (other than military medical facilities,
POW camps, and civilian internee camps), whether used for training, billeting, or staging,
or offensive or defensive purposes, such as
o headquarters or command and control facilities;
o defense ministries; and
constitute a definite military advantage to the attacker under the circumstances at the time of an attack.”). Consider
AP I art. 52(2) (“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.”).
145 Refer to § 2.2 (Military Necessity).
146 Refer to § 5.17 (Seizure and Destruction of Enemy Property); § 5.17.2.1 (Using the Military Objective Definition
to Assess Whether the Seizure or Destruction of Enemy Property Is Justified by Military Necessity).
147 2004 UK MANUAL ¶5.4.1 (“The term ‘military objective’ includes combatant members of the enemy armed
forces and their military weapons, vehicles, equipment, and installations.”); 2006 AUSTRALIAN MANUAL ¶5.27
(“The term ‘military objective’ includes combatant members of the enemy armed forces and their military weapons,
vehicles, equipment and installations.”); 2001 CANADIAN MANUAL ¶407(1) (“The following are generally accepted
as being military objectives: a. military bases, warehouses, petroleum storage areas, ports and airfields; and b.
military aircraft, weapons, ammunition, buildings and objects that provide administrative and logistical support for
military operations.”).
148 For devices to facilitate identification of military medical units, transport, and equipment, refer to § 7.15 (Display
of the Distinctive Emblem to Facilitate Identification).
207
o intelligence facilities.
5.7.4.2 Objects Containing Military Objectives. Second, objects that contain
military objectives are military objectives.149 For example,
• Storage and production sites for military equipment, including
o missile production and storage facilities; and
o nuclear, biological, and chemical weapons research and production facilities; and
• Facilities in which combatants are sheltering or billeting.150
5.7.5 Definition of Military Objective for Objects: A Two-Part Test. The definition of
military objective insofar as objects are concerned may be divided into two parts, both of which
must be met for the object to be considered a military objective: (1) that the object somehow
makes an effective contribution to military action; and (2) attacking the object, in the
circumstances, offers a definite military advantage.151
Generally, the reason why the object meets the first part of the definition also satisfies the
second part of the definition. In other words, attacking the object in the circumstances will offer
a definite military advantage because it seeks to preclude the object from effectively contributing
to the enemy’s military action. However, the two parts are not necessarily connected because the
concept of definite military advantage is broader than simply denying the adversary the benefit
of an object’s effective contribution to its military operations.152 These broader aspects of
“military advantage” may also be relevant in evaluating an attack under the proportionality
rule.153
The following discussion elaborates upon the definition of military objective.
149 ROGERS, LAW ON THE BATTLEFIELD 36 (“A civilian object which contains military personnel or things of military
significance is considered a military objective.”); 2001 CANADIAN MANUAL ¶407(2) (“Civilian vessels, aircraft,
vehicles and buildings are military objectives if they contain combatants, military equipment or supplies.”). Cf.
CCW PROTOCOL III ON INCENDIARY WEAPONS art. 2(4) (plants “used to cover, conceal, or camouflage combatants
or other military objectives,” may be attacked with incendiary weapons).
150 1956 FM 27-10 (Change No. 1 1976) ¶40 (giving as examples of legitimate objects of attack “a place which is
occupied by a combatant military force or through which such a force is passing,” as well as “[f]actories producing
munitions and military supplies, military camps, warehouses storing munitions and military supplies, ports and
railroads being used for the transportation of military supplies, and other places devoted to the support of military
operations or the accommodation of troops”); ICRC AP COMMENTARY 701 (¶2265) (“If combat is taking place
within a city or a town, and there is fighting from house to house, which is frequently the case, it is clear that the
situation becomes very different and that any building sheltering combatants becomes a military objective.”).
151 ICRC AP COMMENTARY 635 (¶2018) (“The definition comprises two elements: a) the nature, location, purpose
or use which makes an effective contribution to military action; b) the total or partial destruction, capture or
neutralization which in the circumstances ruling at the time offers a definite military advantage. Whenever these
two elements are simultaneously present, there is a military objective in the sense of the Protocol.”).
152 Refer to § 5.7.7.3 (Definite Military Advantage).
153 Refer to § 5.12.5 (“Concrete and Direct Military Advantage Expected to Be Gained”).
208
5.7.6 By its nature, location, purpose, or use makes an effective contribution to military
action. The first part of the test is whether the object, by its nature, location, purpose, or use
makes an effective contribution to the enemy’s military action.
5.7.6.1 Nature, Location, Purpose, or Use. The nature, location, purpose, or use
of the object may contribute to the object making an effective contribution to the enemy’s
military action. The issue is whether, in total, an effective contribution is made; one factor alone
need not provide the effective contribution. In addition, nature, location, purpose, or use need
not be viewed as mutually exclusive concepts; rather, these concepts may be understood to
overlap.
“Nature” refers to the type of object and may be understood to refer to objects that are
per se military objectives. For example, military equipment and facilities, by their nature, make
an effective contribution to military action.154 On the other hand, “nature” can also be
understood to refer to objects that may be used for military purposes as discussed below.
The location of an object may provide an effective contribution to military action. For
example, during military operations in urban areas, a house or other structure that would
ordinarily be a civilian object may be located such that it provides cover to enemy forces or
would provide a vantage point from which attacks could be launched or directed. The word
“location” also helps clarify that an area of land can be militarily important and therefore a
military objective.155
“Use” refers to the object’s present function. For example, using an otherwise civilian
building to billet combatant forces makes the building a military objective.156 Similarly, using
equipment and facilities for military purposes, such as using them as a command and control
center or a communications station, would result in such objects providing an effective
contribution to the enemy’s military action.
“Purpose” means the intended or possible use in the future.157 For example, runways at a
civilian airport could qualify as military objectives because they may be subject to immediate
military use in the event that runways at military air bases have been rendered unserviceable or
inoperable.158 Similarly, the possibility that bridges or tunnels would be used to assist in the
adversary’s military operations in the future could result in such objects providing an effective
154 ICRC AP COMMENTARY 636 (¶2020) (“A closer look at the various criteria used [i.e., nature, purpose, location,
or use] reveals that the first refers to objects which, by their nature, make an effective contribution to military
action. This category comprises all objects directly used by the armed forces: weapons, equipment, transports,
fortifications, depots, buildings occupied by armed forces, staff headquarters, communications centres etc.”). Refer
to § 5.7.4 (Objects Categorically Recognized as Military Objectives).
155 Refer to § 5.7.8.4 (Examples of Military Objectives - Places of Military Significance).
156 Refer to § 5.7.4.2 (Objects Containing Military Objectives).
157 See, e.g., 2006 AUSTRALIAN MANUAL ¶5.29 (“Purpose means the future intended use of an object while ‘use’
means its present function.”); 2004 UK MANUAL ¶5.4.4 (“e. ‘Purpose’ means the future intended use of an object
while ‘use’ means its present function.”).
158 Refer to § 5.7.8.3 (Examples of Military Objectives - Transportation Objects).
209
contribution to the enemy’s military action, even though they are not being used at that moment
for such purposes.
5.7.6.2 Make an Effective Contribution to Military Action. The object must make
or be intended to make an effective contribution to military action; however, this contribution
need not be “direct” or “proximate.”159 For example, an object might make an effective, but
remote, contribution to the enemy’s military action and nonetheless meet this aspect of the
definition. Similarly, an object might be geographically distant from most of the fighting and
nonetheless satisfy this element.
Military action has a broad meaning and is understood to mean the general prosecution of
the war.160 It is not necessary that the object provide immediate tactical or operational gains or
that the object make an effective contribution to a specific military operation. Rather, the
object’s effective contribution to the war-fighting or war-sustaining capability of an opposing
force is sufficient.161 Although terms such as “war-fighting,” “war-supporting,” and “war-
sustaining” are not explicitly reflected in the treaty definitions of military objective, the United
States has interpreted the military objective definition to include these concepts.162
5.7.7 Whose Total or Partial Destruction, Capture, or Neutralization, in the
Circumstances Ruling at the Time, Offers a Definite Military Advantage. In addition to making
an effective contribution to the adversary’s military action, the attack of the object must also, in
the circumstances ruling at the time, offer a definite military advantage for the object to be
considered a “military objective.”
159 Cf. BOTHE, PARTSCH, & SOLF, NEW RULES 324 (AP I art. 52, ¶2.4.3) (noting that “[m]ilitary objectives must
make an ‘effective contribution to military action’ … does not require a direct connection with combat operations”
and that “a civilian object may become a military objective and thereby lose its immunity from deliberate attack
through use which is only indirectly related to combat action, but which nevertheless provides an effective
contribution to the military phase of a Party’s overall war effort.”).
160 ROGERS, LAW ON THE BATTLEFIELD 36 (“The term military action appears to have a wide meaning equating to
the general prosecution of the war.”).
161 See APPENDIX TO 1985 CJCS MEMO ON AP I 51 (“Under this definition [of military objective in AP I], an area of
land could, for example, be a military objective, as could political and economic activities that support the enemy’s
war effort.”); BOTHE, PARTSCH, & SOLF, NEW RULES 324 (AP I art. 52, ¶2.4.2) (noting that military objectives may
include “activities providing administrative and logistical support to military operations such as transportation and
communications systems, railroads, airfields and port facilities and industries of fundamental importance for the
conduct of the armed conflict.”). Cf. 10 U.S.C. § 950p(a)(1) (“The term ‘military objective’ means … those objects
during hostilities which, by their nature, location, purpose, or use, effectively contribute to the war-fighting or war-
sustaining capability of an opposing force.”) (emphasis added).
162 See also W. Hays Parks, Asymmetries and the Identification of Legitimate Military Objectives, in
INTERNATIONAL HUMANITARIAN LAW FACING NEW CHALLENGES 100 (2007) (“War-sustaining and/or war-fighting
reflect State practice. Historical evidence and the description of the target sets agreed upon by NATO governments
in ALLIED FORCE support the idea that nations have, do, and will attack not only an enemy’s war-fighting
capability, but also his capacity to sustain the conflict.”); Horace B. Robertson, The Principle of the Military
Objective in the Law of Armed Conflict, 8 UNITED STATES AIR FORCE ACADEMY JOURNAL OF LEGAL STUDIES 35,
50-51 (1997) (comparing the definition of military objective in the 1995 Commander’s Handbook on the Law of
Naval Operations to the definition of military objective in AP I).
210
5.7.7.1 Capture or Neutralization. The definition of military objective
incorporates considerations beyond whether an object’s destruction is justified. It also
incorporates considerations of whether the object’s capture and neutralization would offer a
military advantage.
Capture refers to the possibility of seizure (rather than destruction), which would confer a
military advantage. For example, the seizure of a city may be a military objective because of its
strategic location.163
Neutralization refers to a military action that denies an object to the enemy without
capturing or destroying it. For example, a specific area of land may be neutralized by planting
landmines on or around it, and thus denying it to the enemy.164
5.7.7.2 In the Circumstances Ruling at the Time. The attack of the object must,
“in the circumstances ruling at the time,” offer a definite military advantage for the object to be
considered a military objective.
Nonetheless, the purpose (i.e., future use) of the object can be considered in whether an
object provides an effective contribution to the adversary’s military action.165 In addition, the
definite military advantage offered by the attack need not be immediate, but may be assessed in
the full context of the war strategy.166
5.7.7.3 Definite Military Advantage. “Definite” means a concrete and perceptible
military advantage, rather than one that is merely hypothetical or speculative.167
The advantage need not be immediate.168 For example, the military advantage in the
attack of an individual bridge may not be seen immediately (particularly if, at the time of the
attack, there is no military traffic in the area), but can be established by the overall effort to
isolate enemy military forces on the battlefield through the destruction of bridges.
163 Refer to § 5.7.8.4 (Examples of Military Objectives - Places of Military Significance).
164 Refer to § 5.7.8.4 (Examples of Military Objectives - Places of Military Significance).
165 Refer to § 5.7.6.1 (Nature, Location, Purpose, or Use).
166 Refer to § 5.7.7.3 (Definite Military Advantage).
167 For example, W. Hays Parks, Asymmetries and the Identification of Legitimate Military Objectives, in
INTERNATIONAL HUMANITARIAN LAW FACING NEW CHALLENGES footnotes 88 and 170 and accompanying text
(2007) (giving an example of a case in which objects did not meet this standard, “the 25 February 1991
recommendation by the U.S. Air Force component of US Central Command for an air attack on a Baghdad statue of
Saddam Hussayn and another statue, consisting of matching sets of arms with crossed swords (modeled on the arms
of Saddam Hussayn), called the Victory Arch or Crossed Swords Monument,” because the military assessment was
that such targets were worthless and any value from attacking them was too speculative).
168 See J. Fred Buzhardt, DoD General Counsel, Letter to Senator Edward Kennedy, Sept. 22, 1972, reprinted in 67
AJIL 122, 124 (1973) (“Turning to the deficiencies in the Resolutions of the Institut de Droit International, and with
the foregoing in view, it cannot be said that Paragraph 2, which refers to legal restraints that there must be an
‘immediate’ military advantage, reflects the law of armed conflict that has been adopted in the practices of States.”).
211
“Military advantage” refers to the advantage anticipated from an attack when considered
as a whole, and not only from its isolated or particular parts.169 Similarly, “military advantage”
is not restricted to immediate tactical gains, but may be assessed in the full context of the war
strategy.170
The definite military advantage offered by damaging, destroying, or neutralizing the
object may result from denying the enemy the ability to use this object in its military operations
(i.e., to benefit from the object’s effective contribution to the military action). For example, the
attack or seizure of objects with a common military purpose, such as bridges used, or potentially
available to be used, in lines of communication would offer a definite military advantage.
The military advantage from an attack is broader than only denying the enemy the benefit
of that object’s contribution to its military action. For example, in a diversionary attack, the
military advantage to be gained from attacking an object would result from diverting the enemy’s
resources and attention.171 The military advantage from an attack may involve a variety of other
considerations, including improving the security of the attacking force.
The military advantage from an attack may result from harm to the morale of enemy
forces.172 Diminishing the morale of the civilian population and their support for the war effort
does not provide a definite military advantage.173 However, attacks that are otherwise lawful are
not rendered unlawful if they happen to result in diminished civilian morale.174
169 See, e.g., France, Statement on Ratification of AP I, translated in SCHINDLER & TOMAN, THE LAWS OF ARMED
CONFLICTS: A COLLECTION OF CONVENTIONS, RESOLUTIONS, AND OTHER DOCUMENTS 800 (2004) (“It is the
understanding of the Government of the French Republic that the expression ‘military advantage’ contained in
paragraphs 5(b) of Article 51, 2 of Article 52 and 2(a)(iii) of Article 57, is intended to refer to the advantage
anticipated from the attack considered as a whole and not from isolated or particular parts of the attack.”); Spain,
Statement on Ratification of AP I, Apr. 21, 1989, 1537 UNTS 389, 392 (“Articles 51, 52 and 57. It is understood
that the words ‘military advantage’ in these articles refer to the advantage expected from the attack as a whole and
not from isolated parts of it.”).
170 See FINAL REPORT ON THE PERSIAN GULF WAR 613 (“‘Military advantage’ is not restricted to tactical gains, but
is linked to the full context of a war strategy, in this instance, the execution of the Coalition war plan for liberation
of Kuwait.”).
171 For example, BOTHE, PARTSCH, & SOLF, NEW RULES 325 (AP I art. 52, ¶2.4.4) (“Thus, prior to the 1944 cross
channel operation, the Allies attacked a large number of bridges, fuel dumps, airfields and other targets in the Pas de
Calais. These targets made an effective contribution to German military action in that area. The primary military
advantage of these attacks anticipated by the Allies, however, was not to reduce German military strength in that
area, but to deceive the Germans into believing that the Allied amphibious assault would occur in the Pas de Calais
instead of the beaches of Normandy.”); MILITARY ANALYSIS DIVISION, THE UNITED STATES STRATEGIC BOMBING
SURVEY (PACIFIC): JAPANESE AIR POWER 10 (1946) (“The [Doolittle] raid was too small to do substantial physical
damage, but its repercussions on the planning level of the high command were considerable
[A]ttention was
focused on the eastern approaches to the home islands, and additional impetus given the prewar plan to attack
Midway and the Aleutians
[T]he Japanese began to implement their plans for air defense of Japan which before
that time had received scant consideration
A total of four Army fighter groups were held in Japan throughout
1942 and 1943 for the defense of the homeland when the Japanese Navy was urgently demanding that the Army
send reinforcements to the Solomons.”).
172 Refer to § 5.5.6.3 (Harassing Fires).
173 Cf. LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 528-29 (§214eb) (“It is also probable that till the end of
the War the aerial bombardment by the Allies did not assume the complexion of bombing for the exclusive purpose
212
The military advantage expected to be gained from an attack might not be readily
apparent to the enemy or to outside observers because, for example, the expected military
advantage might depend on the commander’s strategy or assessments of classified information.
5.7.8 Examples of Objects Often Regarded as Military Objectives. The following types
of objects generally have met the definition of “military objective” in past conflicts, but may not
be military objectives in all circumstances:
(1) leadership facilities; (2) communications objects;
(3) transportation objects; (4) places of military significance; and (5) economic objects
associated with military operations or with war-supporting or war-sustaining industries.
This list of examples is not exclusive (i.e., an object could fall in more than one category
in this list), and this list is not exhaustive (i.e., an object outside these categories may nonetheless
meet the definition of military objective). Lastly, this list is not conclusive, i.e., whether an
example is, in fact, a military objective, must be assessed according to the definition of military
objective.
5.7.8.1 Examples of Military Objectives - Leadership Facilities. Facilities used
by enemy leaders as headquarters for military operations or otherwise to command military
operations have often been regarded as military objectives.175 In some cases, enemy leaders
themselves may be made the object of attack.176
5.7.8.2 Examples of Military Objectives - Communications Objects.
Communications objects, such as facilities, networks, and equipment that could be used for
of spreading terror and shattering the morale of the population at large—though this was the inevitable concomitant
of strategic target-bombing. Thus what remained of the protection afforded by International Law to the civilian
population in the matter of aerial bombardment was the principle—generally acknowledged by the Allies, though
not always capable of being adhered to in practice—that the bombing of towns or purely residential parts of towns
which were not in any way related to the war efforts of the enemy was unlawful. At the same time abstention from
such bombing could also be explained by reference to considerations of economy militating against costly
operations for the sake of achieving purely psychological effect—considerations the disregard of which rendered the
use by Germany of the flying bomb and long-range projectiles not only unlawful but, in the judgment of many, also
detrimental to her own war effort.”).
174 For example, Judith A. Miller, Commentary, 78 U.S. NAVAL WAR COLLEGE INTERNATIONAL LAW STUDIES 107,
110 (2002) (“I will readily admit that, aside from directly damaging the military electrical power infrastructure,
NATO wanted the civilian population to experience discomfort, so that the population would pressure Milosevic and
the Serbian leadership to accede to UN Security Council Resolution 1244, but the intended effects on the civilian
population were secondary to the military advantage gained by attacking the electrical power infrastructure.”). Refer
to § 5.3.2 (Essentially Negative Duties to Respect Civilians and to Refrain From Directing Military Operations
Against Them).
175 For example, 2006 AUSTRALIAN MANUAL ¶2.8, at 2-5 (“HISTORICAL EXAMPLE—AVOIDING
COLLATERAL DAMAGE, AFGHANISTAN 2002-2003 … A major focus in Afghanistan was the leadership.
This meant targeting residences and road convoys, with difficulties of identification and the consequent acceptance
of non-combatant casualties as a necessary proportionate risk to achieve the military objective.”).
176 Refer to § 5.8.4 (Leaders).
213
command and control of military operations or intelligence gathering, have often been regarded
as military objectives.177
5.7.8.3 Examples of Military Objectives - Transportation Objects. Transportation
objects, including facilities (e.g., port facilities and airfields) and equipment that could be part of
lines of communication (e.g., highways, railroads, waterways, and bridges connecting military
forces with logistics depots and storage areas), have often been regarded as military
objectives.178
5.7.8.4 Examples of Military Objectives - Places of Military Significance. Areas
of land that are militarily significant may constitute military objectives.179 For example, anti-
177 For example, ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing
Campaign Against the Federal Republic of Yugoslavia, ¶¶71-72 (Jun. 13, 2000) (“On 23 April 1999, at 0220,
NATO intentionally bombed the central studio of the RTS (state-owned) broadcasting corporation at 1 Aberdareva
Street in the centre of Belgrade. … The bombing of the TV studio was part of a planned attack aimed at disrupting
and degrading the C3 (Command, Control and Communications) network. In co-ordinated attacks, on the same
night, radio relay buildings and towers were hit along with electrical power transformer stations.”).
178 For example, DoD statement, Dec. 26, 1966, X WHITEMAN’S DIGEST 427 (“U.S. policy is to target military
targets only, particularly those which have a direct impact on the movement of men and supplies into South
Vietnam. These targets include but are not limited to roads, railroads, bridges, road junctions, POL facilities,
barracks and supply depots. … In the specific case of Nam Dinh and Phu Li, targets have been limited to railroad
and highway bridges, railroad yards, POL dumps and air defense sites.”); Report of the United Nations Command
Operations in Korea for the Period 1 to 15 August 1950, enclosure to Note Dated 2 September 1950 From the
Permanent Representative of the United States of America to the President of the Security Council Transmitting the
Third Report of the United Nations Command in Korea in Accordance with the Security Council Resolution of 7
July 1950 (S/1588), U.N. Doc. S/1756 (Sept. 2, 1950) (“United States Far East Air Force medium bombers struck
heavy blows at north Korean industrial targets of military significance and at the north Korean transportation
system. The Korean manufacturing complex, the largest in the Far East, and the oil refinery at Wonsan, have been
extensively damaged by successive attacks. The marshalling yards in Pyongyang, Wonsan, and Seoul have been
repeatedly attacked, as have yards of less consequence. A general transportation interdiction program continues
with destruction of rail and highway bridges along principal lines of communication. The rail and port
transportation center at Najin-dong was also bombed.”).
179 See, e.g., Canada, Statement on Ratification of AP I, Nov. 20, 1990, 1591 UNTS 462, 465 (“It is the
understanding of the Government of Canada in relation to Article 52 that: a. A specific area of land may be a
military objective if, because of its location or other reasons specified in the Article as to what constitutes a military
objective, its total or partial destruction, capture or neutralization in the circumstances governing at the time offers a
definite military advantage, … .”); Germany, Statement on Ratification of AP I, Feb. 14, 1991, 1607 UNTS 526, 529
(“Article 52 of Additional Protocol I is understood by the Federal Republic of Germany to mean that a specific area
of land may also be a military objective if it meets all requirements of Article 52, paragraph 2.”); Netherlands,
Statement on Ratification of AP I, Jun. 26, 1987, 1477 UNTS 300 (“It is the understanding of the Government of the
Kingdom of the Netherlands that a specific area of land may also be a military objective if, because of its location or
other reasons specified in paragraph 2, its total or partial destruction, capture, or neutralization in the circumstances
ruling at the time, offers a definite military advantage;”); New Zealand, Statement on Ratification of AP I, Feb. 8,
1988, 1499 UNTS 358 (“In relation to Article 52, it is the understanding of the Government of New Zealand that a
specific area of land may be a military objective if, because of its location or other reasons specified in the Article,
its total or partial destruction, capture or neutralisation in the circumstances ruling at the time offers a definite
military advantage.”); United Kingdom, Statement on Ratification of AP I, Jan. 28, 1998, 2020 UNTS 75, 77 (“Re:
Article 52 It is the understanding of the United Kingdom that: A specific area of land may be a military objective if,
because of its location or other reasons specified in this Article, its total or partial destruction, capture or
neutralization in the circumstances ruling at the time offers definite military advantage; … .”).
214
tank mines may be laid on such areas in order to block enemy forces’ tanks.180 Areas of land
that have been regarded as military objectives have included, for example:
• road networks;181
• known or suspected enemy avenues of approach or withdrawal;
• mountain passes, hills, defiles, and bridgeheads;182 and
• villages, towns, or cities whose seizure is militarily important.183
5.7.8.5 Examples of Military Objectives - Economic Objects Associated With
Military Operations. Economic objects associated with military operations or with war-
supporting or war-sustaining industries have been regarded as military objectives.
Electric power stations are generally recognized to be of sufficient importance to a
State’s capacity to meet its wartime needs of communication, transport, and industry so as
usually to qualify as military objectives during armed conflicts.184
180 United States, Statement on Consent to Be Bound by the CCW Amended Mines Protocol, May 24, 1999, 2065
UNTS 128, 130 (“The United States understands that an area of land itself can be a legitimate military objective for
the purpose of the use of landmines, if its neutralization or denial, in the circumstances applicable at the time, offers
a military advantage.”).
181 See FINAL REPORT ON THE PERSIAN GULF WAR 612 (“A bridge or highway vital to daily commuter and business
traffic can be equally crucial to military traffic, or support for a nation’s war effort. Railroads, airports, seaports,
and the interstate highway system in the United States have been funded by the Congress in part because of US
national security concerns, for example; each proved invaluable to the movement of US military units to various
ports for deployment to Southwest Asia (SWA) for Operations Desert Shield and Desert Storm. Destruction of a
bridge, airport, or port facility, or interdiction of a highway can be equally important in impeding an enemy’s war
effort.”).
182 ROGERS, LAW ON THE BATTLEFIELD 37.
183 For example, MILAN N. VEGO, JOINT OPERATIONAL WARFARE: THEORY AND PRACTICE II-34-II-35 (Reprint of
1st ed., 2009) (“In purely military terms, a capital is normally an operational objective to be seized or defended. The
reason is that no enemy’s capital can possibly physically include the enemy’s entire armed forces, or even most of
the ground forces. Therefore, the defeat of enemy forces defending the capital (and most other large cities as well)
would normally amount to the accomplishment of an operational objective that in some situations could have
strategic consequences for the war’s outcome. … General Mark Clark, the Fifth Army’s commander, was directed
by President Franklin D. Roosevelt and General George Marshall to take Rome as quickly as possible, and in any
event before the planned Normandy landing. The Allied troops entered Rome on 6 June 1944, the same day the
Allied forces landed in Normandy.”).
184 Eritrea Ethiopia Claims Commission, Partial Award: Western Front, Aerial Bombardment and Related Claims,
Eritrea’s Claims 1, 3, 5, 9-13, 14, 21, 25 & 26, ¶117 (Dec. 19, 2005) (“The Commission agrees with Ethiopia that
electric power stations are generally recognized to be of sufficient importance to a State’s capacity to meet its
wartime needs of communication, transport and industry so as usually to qualify as military objectives during armed
conflicts. The Commission also recognizes that not all such power stations would qualify as military objectives, for
example, power stations that are known, or should be known, to be segregated from a general power grid and are
limited to supplying power for humanitarian purposes, such as medical facilities, or other uses that could have no
effect on the State’s ability to wage war.”). For example, W. Hays Parks, Air War and the Law of War, 32 AIR
FORCE LAW REVIEW 1, 168-69 (1990) (“In selecting North Vietnamese power sources for attack, target intelligence
authorities identified the Lang Chi hydroelectric facility, a Soviet-built, 122,500-kilowatt electric generating plant
215
Oil refining and distribution facilities and objects associated with petroleum, oil, and
lubricant products (including production, transportation, storage, and distribution facilities) have
also been regarded as military objectives.185
5.8 COMBATANTS
In general, combatants, whether privileged or unprivileged, may be made the object of
attack, provided they have not been placed hors de combat.
5.8.1 Armed Forces and Groups and Liability to Being Made the Object of Attack.
Membership in the armed forces or belonging to an armed group makes a person liable to being
made the object of attack regardless of whether he or she is taking a direct part in hostilities.186
This is because the organization’s hostile intent may be imputed to an individual through his or
her association with the organization. Moreover, the individual, as an agent of the group, can be
assigned a combat role at any time, even if the individual normally performs other functions for
the group.187
Thus, combatants may be made the object of attack at all times, regardless of the
activities in which they are engaged at the time of attack.188 For example, combatants who are
63 miles up the Red River Valley from Hanoi that was capable of supplying seventy-five percent of the electricity
for Hanoi’s industrial and defense needs. Without question, it was a valuable target. … The Lang Chi hydroelectric
facility was attacked by Air Force F-4 Phantoms using LGB [laser-guided bombs] on 10 June 1972. They placed
twelve 2000-pound LGB through the roof of the 50-by-100-foot building, thereby destroying the electric generating
plant without breach of the dam, despite the fact that the roof of the power plant was 100 feet below the top of the
dam.”).
185 For example, Department of Defense, Report to Congress: Kosovo/Operation Allied Force, After-Action Report,
82 (Jan. 31, 2000) (“Following the end of Operation Allied Force, NATO released an initial assessment of their
attack effectiveness against a number of targets. These targets destroyed or significantly damaged include: … •
Fifty-seven percent of petroleum reserves; • All Yugoslav oil refineries … .”); Department of Defense, Report to the
Senate and House Appropriations Committees regarding international policies and procedures regarding the
protection of natural and cultural resources during times of war, Jan. 19, 1993, reprinted as Appendix VIII in
Patrick J. Boylan, Review of the Convention for the Protection of Cultural Property in the Event of Armed Conflict
(The Hague Convention of 1954) 201, 204 (1993) (“Similarly, natural resources that may be of value to an enemy in
his war effort are legitimate targets. The 1943 air raids on the Ploesti oil fields in Romania, and the Combined
Bomber Offensive campaign against Nazi oil, were critical to allied defeat of Germany in World War II, for
example. What is prohibited is unnecessary destruction, that is, destruction of natural resources that has no or
limited military value.”).
186 See, e.g., ICRC AP COMMENTARY 1453 (¶4789) (“Those who belong to armed forces or armed groups may be
attacked at any time.”); GREENSPAN, MODERN LAW OF LAND WARFARE 57 (explaining that “as members of the
armed forces [non-combat military personnel except for medical personnel and chaplains] are legitimate objects of
attack by the enemy,”).
187 Gherebi v. Obama, 609 F. Supp. 2d 43, 69 (D.D.C. 2009) (noting that “many members of the armed forces who,
under different circumstances, would be ‘fighters’ may be assigned to non-combat roles at the time of their
apprehension” and that “[t]hese individuals are no less a part of the military command structure of the enemy, and
may assume (or resume) a combat role at any time because of their integration into that structure.”), abrogated on
different grounds by Uthman v. Obama, 637 F.3d 400, 403 (D.C. Cir. 2011).
188 W. Hays Parks, Chief, International Law Branch, Office of the Judge Advocate General, Department of the
Army, Executive Order 12333 and Assassination, Nov. 2, 1989, III CUMULATIVE DIGEST OF UNITED STATES
PRACTICE IN INTERNATIONAL LAW 1981-1988 3411, 3413 (“Combatants are liable to attack at any time or place,
216
standing in a mess line, engaging in recreational activities, or sleeping remain the lawful object
of attack, provided they are not placed hors de combat.189
5.8.1.1 U.S. Practice in Declaring Forces Hostile. In DoD practice, an armed
force or group may be designated as hostile (also known as declaring the force hostile) in rules of
engagement. This means that personnel to whom such rules of engagement apply are authorized
to attack the members of the group. In DoD practice, the authority to designate a group as
hostile has been limited to only certain officials.190
5.8.2 Categories of Persons Who Are Combatants for the Purpose of Assessing Their
Liability to Attack. The following categories of persons are combatants who may be made the
object of attack because they are sufficiently associated with armed forces or armed groups:
• members of the armed forces of a State;191
• members of militia and volunteer corps;192
regardless of their activity when attacked. Nor is a distinction made between combat and combat service support
personnel with regard to the right to be attacked as combatants; combatants are subject to attack if they are
participating in hostilities through fire, maneuver, and assault; providing logistic, communications, administrative,
or other support; or functioning as staff planners. An individual combatant’s vulnerability to lawful targeting (as
opposed to assassination) is not dependent upon his or her military duties, or proximity to combat as such.”)
(citations omitted).
189 For example, 101st Airborne ROE Card, Iraq (2003), reprinted in CENTER FOR LAW AND MILITARY OPERATIONS,
THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER & SCHOOL, U.S. ARMY, I LEGAL LESSONS LEARNED FROM
AFGHANISTAN AND IRAQ: MAJOR COMBAT OPERATIONS (11 SEPTEMBER 2001 - 1 MAY 2003) 315-16 (2004) (“1.
Fire at all members of forces DECLARED HOSTILE. You may immediately fire upon any force that you know to
be hostile. … 1. Facts: An enemy unit maneuvers within your weapon range. Response: Shoot to eliminate the
threat and accomplish the mission. 2. Facts: An unarmed enemy soldier sees you and does nothing but stare at you.
Response: Shoot to eliminate the threat. The soldier is a member of a Hostile Force and is lawful target.”).
190 For example, CHAIRMAN OF THE JOINT CHIEFS OF STAFF INSTRUCTION 3121.01B, Standing Rules of
Engagement/Standing Rules for the Use of Force for U.S. Forces, A-2, ¶2(b) (June 13, 2005), reprinted in
INTERNATIONAL AND OPERATIONAL LAW DEPARTMENT, THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER &
SCHOOL, U.S. ARMY, OPERATIONAL LAW HANDBOOK 94 (2014) (“Once a force is declared hostile by appropriate
authority, U.S. forces need not observe a hostile act or demonstrated hostile intent before engaging the declared
hostile force. Policy and procedures regarding the authority to declare forces hostile are provided in Appendix A to
Enclosure A, paragraph 3.”); CHAIRMAN OF THE JOINT CHIEFS OF STAFF INSTRUCTION 3121.01A, Standing Rules of
Engagement for US Forces, A-12, ¶6 (Jan. 15, 2000), reprinted in CENTER FOR LAW AND MILITARY OPERATIONS,
THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER & SCHOOL, U.S. ARMY, Rules of Engagement (ROE) Handbook
for Judge Advocates 96 (May 1, 2000) (“6. Declaring Forces Hostile. Once a force is declared hostile by
appropriate authority, US units need not observe a hostile act or a demonstration of hostile intent before engaging
that force. The responsibility for exercising the right and obligation of national self-defense and as necessary
declaring a force hostile is a matter of the utmost importance. All available intelligence, the status of international
relationships, the requirements of international law, an appreciation of the political situation, and the potential
consequences for the United States must be carefully weighed. The exercise of the right and obligation of national
self-defense by competent authority is separate from and in no way limits the commander's right and obligation to
exercise unit self-defense. The authority to declare a force hostile is limited as amplified in Appendix A of this
Enclosure.”).
191 Refer to § 4.5 (Armed Forces of a State).
192 Refer to § 4.6 (Other Militia and Volunteer Corps).
217
• participants in a levée en masse;193
• persons belonging to non-State armed groups;194 and
• leaders whose responsibilities include the operational command and control of the armed
forces or of a non-State armed group.195
5.8.3 Persons Belonging to Non-State Armed Groups. Like members of an enemy
State’s armed forces, individuals who are formally or functionally part of a non-State armed
group that is engaged in hostilities may be made the object of attack because they likewise share
in their group’s hostile intent.196
5.8.3.1 Formal Membership. Formal membership in an armed group might be
indicated by formal or direct information or by other types of information.
In some cases, there might be formal or direct information indicating membership in the
group. This might include:
• using a rank, title, or style of communication;
• taking an oath of loyalty to the group or the group’s leader;
• wearing a uniform or other clothing, adornments, or body markings that identify
members of the group; or
• documents issued or belonging to the group that identify the person as a member, such as
membership lists, identity cards, or membership applications.197
Although in some cases this type of formal or direct information might be available, in
many cases it will not be available because members of these groups seek to conceal their
association with that group. In such cases, the following types of information might indicate that
a person is a member of a non-State armed group:
193 Refer to § 4.7 (Levée en Masse).
194 Refer to § 5.8.3 (Persons Belonging to Non-State Armed Groups).
195 Refer to § 5.8.4 (Leaders).
196 Cf. Al-Adahi v. Obama, 613 F.3d 1102, 1108 (D.C. Cir. 2010) (“The district court seemed to think it important to
determine Al-Adahi’s motive for attending the al-Qaida training camp. We do not understand why. Whatever his
motive, the significant points are that al-Qaida was intent on attacking the United States and its allies, that bin Laden
had issued a fatwa announcing that every Muslim had a duty to kill Americans, and that Al-Adahi voluntarily
affiliated himself with al-Qaida.”).
197 Cf. Alsabri v. Obama, 684 F.3d 1298, 1304-05 (D.C. Cir. 2012) (upholding a district court’s determination that
petitioner was part of the Taliban, al-Qaida, or associated forces, including by considering “an English translation of
a document appearing to be Alsabri’s application to attend an al Qaeda training camp” and “an English-language
translation of a 92-page collection of documents that the government maintains were internal Taliban or al Qaeda
records” that “were captured by Coalition forces from the ‘Director of Al-Qa’ida Security Training Office,’”).
218
• acting at the direction of the group or within its command structure;
• performing a function for the group that is analogous to a function normally performed
by a member of a State’s armed forces;
• taking a direct part in hostilities, including consideration of the frequency, intensity, and
duration of such participation;198
• accessing facilities, such as safehouses, training camps, or bases used by the group that
outsiders would not be permitted to access;199
• traveling along specific clandestine routes used by those groups;200 or
• traveling with members of the group in remote locations or while the group conducts
operations.201
5.8.3.2 Functional Membership. Some non-State armed groups might not be
organized in a formal command structure, as generally is required for POW status during
198 Refer to § 5.9.3 (“Taking a Direct Part in in Hostilities”).
199 Cf. Alsabri v. Obama, 684 F.3d 1298, 1306 (D.C. Cir. 2012) (“[I]t is difficult to believe that ‘Taliban fighters
would allow an individual to infiltrate their posts near a battle zone unless that person was understood to be a part of
the Taliban.’”) (quoting Alsabri v. Obama, 764 F.Supp.2d 60, 94 (D.D.C. 2011)); Uthman v. Obama, 637 F.3d 400,
406 (D.C. Cir. 2011) (“In two prior cases, this Court has stated that staying at an al Qaeda guesthouse is ‘powerful—
indeed ‘overwhelming’—evidence’ that an individual is part of al Qaeda. Al-Adahi, 613 F.3d at 1108 (quoting Al-
Bihani v. Obama, 590 F.3d 866, 873 footnote 2 (D.C. Cir. 2010)) (alterations omitted). The reason for that
assessment is plain: It is highly unlikely that a visitor to Afghanistan would end up at an al Qaeda guesthouse by
mistake, either by the guest or by the host.”).
200 Cf. Suleiman v. Obama, 670 F.3d 1311, 1314 (D.C. Cir. 2012) (“There is no dispute that Suleiman’s travel was
initiated at the suggestion of and facilitated by a Taliban recruiter, and that he traveled a well-worn path to
Afghanistan frequently used by Taliban recruits. We have stated that such travel may indicate that an individual
traveled to Afghanistan to join the Taliban.”) (citing Al Odah v. United States, 611 F.3d 8, 14 (D.C. Cir. 2010));
Uthman v. Obama, 637 F.3d 400, 405 (D.C. Cir. 2011) (“[T]raveling to Afghanistan along a distinctive path used by
al Qaeda members can be probative evidence that the traveler was part of al Qaeda.”); Al Odah v. United States, 611
F.3d 8, 16 (D.C. Cir. 2010) (finding it significant that “Al Odah traveled to Afghanistan on a series of one-way plane
tickets purchased with cash in a manner consistent with travel patterns of those going to Afghanistan to join the
Taliban and al Qaeda”).
201 Cf. Hussain v. Obama, 718 F.3d 964, 968-69 (D.C. Cir. 2013) (“Evidence that Hussain bore a weapon of war
while living side-by-side with enemy forces on the front lines of a battlefield at least invites — and may very well
compel — the conclusion that he was loyal to those forces. We have repeatedly affirmed the propriety of this
common-sense inference.”); Uthman v. Obama, 637 F.3d 400, 405 (D.C. Cir. 2011) (“Being captured in the
company of a Taliban fighter and two al Qaeda members and Osama bin Laden bodyguards 12 miles from Tora
Bora in December 2001 might not be precisely the same as being captured in a German uniform 12 miles from the
Normandy beaches in June 1944. But it is still, at a minimum, highly significant. And absent a credible alternative
explanation, the location and date of Uthman’s capture, together with the company he was keeping, strongly suggest
that he was part of al Qaeda.”).
219
international armed conflict.202 Such groups might lack a formal distinction between those
members and non-members who nonetheless participate in the hostile activities of the group.203
An individual who is integrated into the group such that the group’s hostile intent may be
imputed to him or her may be deemed to be functionally (i.e., constructively) part of the group,
even if not formally a member of the group. The integration of the person into the non-State
armed group and the inference that the individual shares the group’s intention to commit hostile
acts distinguish such an individual from persons who are merely sympathetic to the group’s
goals.204
The following may indicate that a person is functionally a member of a non-State armed
group:
• following directions issued by the group or its leaders;205
• taking a direct part in hostilities on behalf of the group on a sufficiently frequent or
intensive basis;206 or
• performing tasks on behalf of the group similar to those provided in a combat, combat
support, or combat service support role in the armed forces of a State.
5.8.3.3 Dissociation or Renunciation. A person may not be made the object of
attack based on his or her association with a non-State armed group if that association has clearly
been severed. Relevant factors in determining when an individual has unambiguously ceased to
be a member of a non-State armed group may include:
• whether the individual has formally ceased to be a member of the group, such as by filing
relevant paperwork or by otherwise formally renouncing any allegiance to the group;
• whether there are concrete and verifiable facts or persuasive indicia that he or she has
affirmatively returned to peaceful pursuits, such as by participating in a reconciliation
program and swearing an oath of loyalty to the government; and
• the amount of time that has passed since the person participated in the activities of the
group in question, if coupled with other indicia of dissociation or renunciation.207
202 Refer to § 4.6.3 (Being Commanded by a Person Responsible for His or Her Subordinates).
203 Compare § 4.7 (Levée en Masse).
204 Compare § 5.9.3.2 (Examples of Acts Not Considered Taking a Direct in Hostilities).
205 Cf. Uthman v. Obama, 637 F.3d 400, 403 (D.C. Cir. 2011) (“[D]emonstrating that someone is part of al Qaeda’s
command structure is sufficient to show that person is part of al Qaeda.”); Al-Adahi v. Obama, 613 F.3d 1102, 1109
(D.C. Cir. 2010) (“When the government shows that an individual received and executed orders from al-Qaida
members in a training camp, that evidence is sufficient (but not necessary) to prove that the individual has affiliated
himself with al-Qaida.”); Salahi v. Obama, 625 F.3d 745, 752 (D.C. Cir. 2010) (“Evidence that an individual
operated within al-Qaida’s command structure is ‘sufficient but is not necessary to show he is ‘part of’ the
organization.’” (quoting Bensayah v. Obama, 610 F.3d 718, 725 (D.C. Cir. 2010))).
206 Refer to § 5.9.3 (“Taking a Direct Part in in Hostilities”).
220
The onus is on the person having belonged to the armed group to demonstrate clearly and
affirmatively to the opposing forces that he or she will no longer participate in the activities of
the group.208 Moreover, if persons who have dissociated from an armed group rejoin the group
or fail to cease permanently their participation in hostilities, they may be made the object of
attack.209
5.8.4 Leaders. Military leaders are subject to attack on the same basis as other members
of the armed forces. Similarly, leaders of non-State armed groups are also subject to attack on
the same basis as other members of the group. There is no objection to making a specific enemy
leader who is a combatant the object of attack.210
Leaders who are not members of an armed force or armed group (including heads of
State, civilian officials, and political leaders) may be made the object of attack if their
responsibilities include the operational command or control of the armed forces. For example, as
the commander-in-chief of the U.S. armed forces, the President would be a legitimate target in
wartime, as would, for example, the Prime Minister of a constitutional monarchy. In contrast,
the reigning monarch of a constitutional monarchy with an essentially ceremonial role in State
affairs may not be made the object of attack.
In addition to leaders who have a role in the operational chain of command, leaders
taking a direct part in hostilities may also be made the object of attack.211 Planning or
authorizing a combat operation is an example of taking a direct part in hostilities.212
As a matter of practice, attacks on the national leadership of an enemy State have often
been avoided on the basis of comity and to help ensure that authorities exist with whom peace
agreements may be concluded.
207 Stephen Pomper, Assistant Legal Adviser for Political-Military Affairs, Department of State, Toward a Limited
Consensus on the Loss of Civilian Immunity in Non-International Armed Conflict: Making Progress Through
Practice, 88 U.S. NAVAL WAR COLLEGE INTERNATIONAL LAW STUDIES 181, 189 (2012) (“Relevant factors in
determining that an individual has ceased to be a member of an organized armed group include the amount of time
that has passed since that individual has taken relevant action on behalf of the group in question, and whether he or
she affirmatively has disassociated himself or herself from the organized armed group.”).
208 Wolff Heintschel von Heinegg & Peter Dreist, The 2009 Kunduz Air Attack: The Decision of the Federal
Prosecutor-General on the Dismissal of Criminal Proceedings Against Members of the German Armed Forces, 53
GERMAN YEARBOOK OF INTERNATIONAL LAW 833, 844-45 (2010) (“Here, the Prosecutor-General takes the
opportunity to identify different categories of lawful targets under the law of non-international armed conflict. As
regards fighters belonging to a non-State party to the conflict, their qualification as lawful targets is not based on
some form of legal status but on the mere fact of their functional integration into an organized armed group. If they
are so integrated, they do not qualify as civilians even though they may eventually pursue civilian occupation. They
only regain their civilian status if they clearly and irrevocably renounce their function in the organized armed group.
Hence, the Prosecutor-General is not prepared to consider Taliban fighters to be lawful targets only insofar and for
such time as they take a direct part in armed hostilities.”). Compare § 5.10.3 (Persons Who Have Surrendered).
209 Refer to § 5.9.4.2 (No “Revolving Door” Protection); § 5.9.4.1 (Permanently Ceased Participation in Hostilities).
210 Refer to § 5.5.6.4 (Attacks on Specific Individuals).
211 Refer to § 5.9.3 (“Taking a Direct Part in in Hostilities”).
212 Refer to § 5.9.3.1 (Examples of Taking a Direct Part in Hostilities).
221
5.9 CIVILIANS TAKING A DIRECT PART IN HOSTILITIES
Civilians who take a direct part in hostilities forfeit protection from being made the object
of attack.
5.9.1 Civilians Taking a Direct Part in Hostilities - Notes on Terminology. This manual
uses the phrase “direct part in hostilities” to indicate what activities cause a civilian to forfeit his
or her protection from being made the object of attack. This usage does not mean that the United
States has adopted the direct participation in hostilities rule that is expressed in Article 51 of AP
I.
5.9.1.1 “Active” Versus “Direct”. The phrases “active part in hostilities” and
“direct part in hostilities” have been used to describe when civilians forfeit their protection from
being made the object of attack. As noted above, this manual uses “direct” rather than “active”
in this context, although as discussed below, this usage should not be regarded as indicating a
substantive difference between “active” and “direct.”
Common Article 3 of the 1949 Geneva Conventions refers to “[p]ersons taking no active
part in the hostilities.” AP I and AP II use the phrase “direct part in hostilities.”213 In addition,
AP I uses the phrase “direct part in hostilities” to address other situations apart from the
protection of civilians.214
Although the words active and direct can mean different things in the English language,
the terms have sometimes been treated as the same for the purpose of applying the direct
participation in hostilities rule.215 One of the reasons for treating the terms the same is that
although the English language version of the 1949 Geneva Conventions uses “active,” and the
English language versions of AP I and AP II use “direct,” the French language versions of these
treaties use the same word, “directement.”216 Because the English and French language versions
213 AP I art. 51(3) (“Civilians shall enjoy the protection [from being made the object of attack], unless and for such
time as they take a direct part in hostilities.”); AP II art. 13(3) (“Civilians shall enjoy the protection [from being
made the object of attack], unless and for such time as they take a direct part in hostilities.”).
214 See, e.g., AP I art. 43(2) (“Members of the armed forces of a Party to a conflict (other than medical personnel and
chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to
participate directly in hostilities”); AP I art. 47(2) (“A mercenary is any person who ... [inter alia] (b) Does, in fact,
take a direct part in the hostilities … .”).
215 See, e.g., Prosecutor v. Tadić, ICTY Trial Chamber, IT-94-1-T, Judgment, ¶¶614-15 (May 7, 1997) (“The rules
contained in paragraph 1 of Common Article 3 proscribe a number of acts which: ... (iii) are committed against
persons taking no active part in hostilities ... the test the Trial Chamber has applied is to ask whether, at the time of
the alleged offence, the alleged victim of the proscribed acts was directly taking part in hostilities, being those
hostilities in the context of which the alleged offences are said to have been committed. If the answer to that
question is negative, the victim will enjoy the protection of the proscriptions contained in Common Article 3.”);
Prosecutor v. Akayesu, ICTR Trial Chamber, ICTR-96-4-T, Judgment, ¶629 (Sept. 2, 1998) (“‘The victims referred
to in this Indictment were, at all relevant times, persons not taking an active part in the hostilities’. This is a material
averment for charges involving Article 4 inasmuch as Common Article 3 is for the protection of ‘persons taking no
active part in the hostilities’ (Common Article 3(1)), and Article 4 of Additional Protocol II is for the protection of,
‘all persons who do not take a direct part or who have ceased to take part in hostilities.’ These phrases are so similar
that, for the Chamber’s purposes, they may be treated as synonymous.”).
216 GC art. 3, 973 UNTS 289 (“ne participant pas directement aux hostilitiés”).
222
of the 1949 Geneva Conventions, AP I, and AP II are equally authentic, States negotiating these
treaties may not have intended a difference between “active” and “direct.”217
Another reason for treating the terms “active” and “direct” the same in this context is that
they are understood to be terms of art addressing a particular legal standard, and there are a range
of views as to what that legal standard means. Thus, there may be different views about what the
underlying standard means, even when there is agreement on the appropriate term to describe
that standard. Accordingly, there seems to be little value in distinguishing between the two
terms for the purposes of applying this legal rule.
5.9.1.2 AP I, Article 51(3) Provision on Direct Participation in Hostilities.
Although, as drafted, Article 51(3) of AP I does not reflect customary international law, the
United States supports the customary principle on which Article 51(3) is based.218 Similarly,
although parts of the ICRC’s interpretive guidance on the meaning of direct participation in
hostilities are consistent with customary international law, the United States has not accepted
significant parts of the ICRC’s interpretive guidance as accurately reflecting customary
international law.219 But some States that are Parties to AP I may interpret and apply Article
51(3) of AP I consistent with the customary international law standard.
5.9.2 Persons to Whom This Rule Applies. For the purpose of applying the rule
discussed in this section, “civilians” are persons who do not fall within the categories of
combatants listed in § 5.8.2 (Categories of Persons Who Are Combatants for the Purpose of
Assessing Their Liability to Attack). Accordingly, for the purposes of this section, “civilians”
include:
217 See, e.g., GC art. 150 (“The present Convention is established in English and in French. Both texts are equally
authentic.”); AP I art. 102 (“The original of this Protocol, of which the Arabic, Chinese, English, French, Russian
and Spanish texts are equally authentic, shall be deposited with the depositary, which shall transmit certified true
copies thereof to all the Parties to the Conventions.”); AP II art. 28 (same).
218 See John B. Bellinger, III, Legal Adviser, Department of State, Unlawful Enemy Combatants, Jan.17, 2007,
DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 915-16 (“While we agree that there is a general
principle of international law that civilians lose their immunity from attack when they engage in hostilities, we
disagree with the contention that the provision as drafted in AP I [Article 51(3)] is customary international law.”);
Michael J. Matheson, Deputy Legal Adviser, Department of State, Remarks on the United States Position on the
Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions at the
Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law
(Jan. 22, 1987), 2 AMERICAN UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLICY 419, 426 (1987) (“We
also support the principle that the civilian population not be used to shield military objectives or operations from
attack, and that immunity not be extended to civilians who are taking part in hostilities. This corresponds to
provisions in articles 51 and 52[ of AP I].”).
219 See, e.g., Stephen Pomper, Assistant Legal Adviser for Political-Military Affairs, Department of State, Toward a
Limited Consensus on the Loss of Civilian Immunity in Non-International Armed Conflict: Making Progress
Through Practice, 88 U.S. NAVAL WAR COLLEGE INTERNATIONAL LAW STUDIES 181, 186 (2012) (“From the
operational perspective, the feedback [on the ICRC’s interpretive guidance] was that the report was too rigid and
complex, and did not give an accurate picture of State practice or (in some respects) of a practice to which States
could realistically aspire.”); Al-Bihani v. Obama, 590 F.3d 866, 885 (D.C. Cir. 2010) (Williams, J., concurring)
(“The work itself explicitly disclaims that it should be read to have the force of law. … Even to the extent that Al
Bihani’s reading of the Guidance is correct, then, the best he can do is suggest that we should follow it on the basis
of its persuasive force. As against the binding language of the AUMF and its necessary implications, however, that
force is insubstantial.”).
223
• members of the civilian population;220
• persons authorized to accompany the armed forces;221 and
• members of the merchant marine and civil aircraft of parties to a conflict.222
5.9.2.1 Persons Belonging to Hostile, Non-State Armed Groups. Some States
may choose to characterize persons who belong to hostile, non-State armed groups that do not
qualify for status as lawful combatants as “civilians” who may not be attacked unless they are
taking a direct part in hostilities. However, these States may also characterize the act of joining
and remaining a member of an armed group that is engaged in hostilities as a form of taking a
direct part in hostilities that continuously deprives these individuals of their protection from
being made the object of attack.223
The U.S. approach has generally been to refrain from classifying those belonging to non-
State armed groups as “civilians” to whom this rule would apply. The U.S. approach has been to
treat the status of belonging to a hostile, non-State armed group as a separate basis upon which a
person is liable to attack, apart from whether he or she has taken a direct part in hostilities.224
Either approach may yield the same result: members of hostile, non-State armed groups may be
made the object of attack unless they are placed hors de combat. However, practitioners,
especially when working with coalition partners, should understand that different legal reasoning
is sometimes applied in reaching that result.
5.9.3 “Taking a Direct Part in in Hostilities”. Unlike the treaty definition of “military
objective” for objects,225 the United States is not a Party to a treaty with a comparable provision
defining taking a direct part in hostilities for the purpose of assessing what conduct renders
civilians liable to being made the object of attack.
At a minimum, taking a direct part in hostilities includes actions that are, by their nature
and purpose, intended to cause actual harm to the enemy.226 Taking a direct part in hostilities
extends beyond merely engaging in combat and also includes certain acts that are an integral part
of combat operations or that effectively and substantially contribute to an adversary’s ability to
220 Refer to § 4.8.1.5 (General Usage of “Civilian” in This Manual).
221 Refer to § 4.15 (Persons Authorized to Accompany the Armed Forces).
222 Refer to § 4.16 (Crews of Merchant Marine Vessels or Civil Aircraft).
223 Stephen Pomper, Assistant Legal Adviser for Political-Military Affairs, Department of State, Toward a Limited
Consensus on the Loss of Civilian Immunity in Non-International Armed Conflict: Making Progress Through
Practice, 88 U.S. NAVAL WAR COLLEGE INTERNATIONAL LAW STUDIES 181, 193 endnote 22 (2012) (“As discussed
below, there is a range of views on whether individuals who pass the membership threshold lose their civilian status
(and are therefore unprivileged belligerents) or remain civilians but are deemed to be continuously taking a direct
part in hostilities and accordingly continuously lose their protections from being made the object of attack.”).
224 Refer to § 5.8.3 (Persons Belonging to Non-State Armed Groups).
225 Refer to § 5.7.3 (Objects That Are Military Objectives).
226 ICRC AP COMMENTARY 619 (“Thus ‘direct’ participation means acts of war which by their nature or purpose are
likely to cause actual harm to the personnel and equipment of the enemy armed forces.”).
224
conduct or sustain combat operations.227 However, taking a direct part in hostilities does not
encompass the general support that members of the civilian population provide to their State’s
war effort, such as by buying war bonds.228
Whether an act by a civilian constitutes taking a direct part in hostilities is likely to
depend highly on the context, such as the weapon systems or methods of warfare employed by
the civilian’s side in the conflict.229 For example, in some contexts, training and logistical
support may be viewed as taking a direct part in hostilities, while in other contexts it might
not.230 The following considerations may be relevant:231
227 See GUENTER LEWY, AMERICA IN VIETNAM 232 (1978) (“We know that on occasion in Vietnam women and
children placed mines and booby traps, and that villagers of all ages and sexes, willingly or under duress, served as
porters, built fortifications, or engaged in other acts helping the communist forces. It is well established that once
civilians act as support personnel they cease to be noncombatants and are subject to attack.”).
228 Stephen Pomper, Assistant Legal Adviser for Political-Military Affairs, Department of State, Toward a Limited
Consensus on the Loss of Civilian Immunity in Non-International Armed Conflict: Making Progress Through
Practice, 88 U.S. NAVAL WAR COLLEGE INTERNATIONAL LAW STUDIES 181, 189 (2012) (“With respect to
determining what it means to take ‘direct part in hostilities,’ as a threshold matter there seems to be a common view
that direct participation in hostilities stands in contrast to support by a general population to a nation’s war effort.
Civilians who are contributing to a nation’s war effort accordingly do not by dint of this alone lose their
protection.”).
229 See Nils Melzer, Third Expert Meeting on the Notion of Direct Participation in Hostilities: Summary Report, 35
(2005) (“Since, currently, the qualification of a particular act as direct participation in hostilities often depends on
the particular circumstances and the technology or weapons system employed, it is unlikely that an abstract
definition of direct participation in hostilities applicable to every situation can be found.”).
230 For example, Kenneth Watkin, Opportunity Lost: Organized Armed Groups and the ICRC “Direct Participation
in Hostilities” Interpretive Guidance, 42 N.Y.U. JOURNAL OF INTERNATIONAL LAW AND POLITICS 641, 680-81
(2010) (“For example in Iraq, it has been noted, ‘IED and suicide-bomber cells are essentially combatant units
themselves,’ where the most technically skilled bomb builder ‘also doubles as a training instructor.’ Further,
‘bombers do not ‘just turn up to their target’. They need a logistical infrastructure, which consists of individuals ...
who provide everything from reconnaissance of the potential target ... to the provision of a safe house and food, and
the explosives-laden vehicle or suicide belt.’ … To limit direct participation to persons who place or detonate
explosives is an artificial division of what is fundamentally a group activity.
… The person who is key in planning
and facilitating such deadly attacks must be a valid target as a direct participant in hostilities …”) (first and second
ellipses in original).
231 Stephen Pomper, Assistant Legal Adviser for Political-Military Affairs, Department of State, Toward a Limited
Consensus on the Loss of Civilian Immunity in Non-International Armed Conflict: Making Progress Through
Practice, 88 U.S. NAVAL WAR COLLEGE INTERNATIONAL LAW STUDIES 181, 189 (“Any determination that a civilian
is taking part in hostilities (and thus loses immunity from being made the object of attack) will be highly situational
and needs to be made by a decisionmaker taking the following considerations into account: • Nature of the harm: Is
the individual's activity directed at (i) adversely affecting one party's military capacity or operations or enhancing
the capacity/operations of the other, or (ii) killing, injuring or damaging civilian objects or persons?
• Causation/integration between action and harm: Is there a sufficiently direct causal link between the individual's
relevant act and the relevant harm, or does the act otherwise form an integral part of coordinated action resulting in
that harm? (Although it is not enough that the act merely occurs during hostilities, there is no requirement that the
act be only a single causal step removed from the harm.) • Nexus to hostilities: Is the individual's activity linked to
an ongoing armed conflict and is it intended either to disadvantage one party, or advance the interests of an opposing
party, in that conflict? … There is also a range of views about whether each of the foregoing three factors must be
present in order to make a determination that an individual is directly participating in hostilities (or whether a
‘totality of the circumstances’ approach should govern), … . Moreover, there is a range of views concerning the
225
•
the degree to which the act causes harm to the opposing party’s persons or objects, such
as
o whether the act is the proximate or “but for” cause of death, injury, or damage to
persons or objects belonging to the opposing party; or
o the degree to which the act is likely to affect adversely the military operations or
military capacity of the opposing party;
•
the degree to which the act is connected to the hostilities, such as
o the degree to which the act is temporally or geographically near the fighting; or
o the degree to which the act is connected to military operations;
•
the specific purpose underlying the act, such as
o whether the activity is intended to advance the war aims of one party to the
conflict to the detriment of the opposing party;
•
the military significance of the activity to the party’s war effort, such as
o the degree to which the act contributes to a party’s military action against the
opposing party;
o whether the act is of comparable or greater value to a party’s war effort than acts
that are commonly regarded as taking a direct part in hostilities;232
o whether the act poses a significant threat to the opposing party;
•
the degree to which the activity is viewed inherently or traditionally as a military one,
such as
relevance of geographic and temporal proximity of an individual's actions to particular hostile acts in ongoing
hostilities.”).
232 W. Hays Parks, Chief, International Law Branch, Office of the Judge Advocate General, Department of the
Army, Executive Order 12333 and Assassination, Nov. 2, 1989, III CUMULATIVE DIGEST OF UNITED STATES
PRACTICE IN INTERNATIONAL LAW 1981-1988 3411, 3416 (“Finally, one rule of thumb with regard to the likelihood
that an individual may be subject to lawful attack is his (or her) immunity from military service if continued service
in his (or her) civilian position is of greater value to a nation’s war effort than that person’s service in the military.
A prime example would be civilian scientists occupying key positions in a weapons program regarded as vital to a
nation’s national security or war aims. Thus, more than 900 of the World War II Project Manhattan personnel were
civilians, and their participation in the U.S. atomic weapons program was of such importance as to have made them
liable to legitimate attack. Similarly, the September 1944 Allied bombing raids on the German rocket sites at
Peenemunde regarded the death of scientists involved in research and development at that facility to have been as
important as destruction of the missiles themselves.”).
226
o whether the act is traditionally performed by military forces in conducting
military operations against the enemy (including combat, combat support, and
combat service support functions);233 or
o whether the activity involves making decisions on the conduct of hostilities, such
as determining the use or application of combat power.
5.9.3.1 Examples of Taking a Direct Part in Hostilities. The following acts are
generally considered taking a direct part in hostilities that would deprive civilians who perform
them of protection from being made the object of attack. These examples are illustrative and not
exhaustive:
• taking up or bearing arms against the opposing party, or otherwise personally trying to
kill, injure, or capture personnel or damage material belonging to the opposing party,234
such as
o defending military objectives against enemy attack (e.g., manning an antiaircraft
gun, acting as a bodyguard for an enemy combatant);235
o acting as a member of a weapons crew;
o engaging in an act of sabotage; or
o emplacing mines or improvised explosive devices;
• preparing for combat and returning from combat;
• planning, authorizing, or implementing a combat operation against the opposing party,
even if that person does not personally use weapons or otherwise employ destructive
force in connection with the operation;236
233 Kenneth Watkin, Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed
Conflict, 98 AJIL 1, 17 (2004) (“The argument that civilians are protected unless engaged in overtly aggressive acts
like carrying weapons may be particularly difficult to maintain where armed groups are technically accorded civilian
status by virtue of not being considered lawful combatants. To the extent that civilians fulfill the same function as
combatants, either in the armed forces or as part of the organization of an ‘illegitimate’ nonstate actor, they are
logically subject to targeting under the same provisions of international humanitarian law.”).
234 2006 AUSTRALIAN MANUAL ¶5.36 (“Civilians are only protected as long as they refrain from taking a direct part
in hostilities. … Civilians bearing arms and taking part in military operations are clearly taking part in hostilities;”);
ICRC AP COMMENTARY 618-19 (¶1943) (“It seems that the word ‘hostilities’ covers not only the time that the
civilian actually makes use of a weapon, but also, for example, the time that he is carrying it, as well as situations in
which he undertakes hostile acts without using a weapon.”).
235 2004 UK MANUAL ¶5.3.3 (“Whether civilians are taking a direct part in hostilities is a question of fact. Civilians
manning an anti-aircraft gun or engaging in sabotage of military installations are doing so.”).
236 See Public Committee against Torture in Israel, et al. v. Government of Israel, et al., HCJ 769/02, Israel Supreme
Court Sitting as the High Court of Justice, ¶37 (Dec. 11, 2005) (“We have seen that a civilian causing harm to the
army is taking ‘a direct part’ in hostilities. What says the law about those who enlist him to take a direct part in the
hostilities, and those who send him to commit hostilities? Is there a difference between his direct commanders and
227
• providing or relaying information of immediate use in combat operations, such as
o acting as an artillery spotter or member of a ground observer corps or otherwise
relaying information to be used to direct an airstrike, mortar attack, or ambush;237
and
o acting as a guide or lookout for combatants conducting military operations;238
• supplying weapons and ammunition, whether to conventional armed forces or non-state
armed groups, or assembling weapons (such as improvised explosive devices) in close
geographic or temporal proximity to their use,239 such as
o delivering ammunition to the front lines; or
o outfitting and preparing a suicide bomber to conduct an attack.
5.9.3.2 Examples of Acts Not Considered Taking a Direct in Hostilities. The
following acts are generally not considered taking a direct part in hostilities that would deprive
civilians who perform them of protection from being made the object of attack. These examples
are illustrative and not exhaustive:
• mere sympathy or moral support for a party’s cause;
• general contributions made by citizens to their State’s war effort (e.g., buying war bonds
or paying taxes to the government that will ultimately be used to fund the armed forces);
those responsible for them? Is the ‘direct’ part taken only by the last terrorist in the chain of command, or by the
entire chain? In our opinion, the ‘direct’ character of the part taken should not be narrowed merely to the person
committing the physical act of attack. Those who have sent him, as well, take ‘a direct part’. The same goes for the
person who decided upon the act, and the person who planned it. It is not to be said about them that they are taking
an indirect part in the hostilities. Their contribution is direct (and active) (see Schmitt, at p. 529).”).
237 2013 GERMAN MANUAL ¶518 (“Accordingly, civilians who perform concrete actions that constitute direct
participation in hostilities (e.g. conducting military operations, transporting weapons and ammunition to combat
units, operating weapon systems, transmitting target data that leads immediately to the engagement of a military
objective, etc.) can be engaged as military objectives while performing such actions.”).
238 For example, 101st Airborne ROE Card, Iraq (2003), reprinted in CENTER FOR LAW AND MILITARY OPERATIONS,
THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER & SCHOOL, U.S. ARMY, I LEGAL LESSONS LEARNED FROM
AFGHANISTAN AND IRAQ: MAJOR COMBAT OPERATIONS (11 SEPTEMBER 2001 - 1 MAY 2003) 315, 316 (2004) (“7.
Facts: Your unit comes under fire, you notice a young civilian woman who appears to be pointing to the location
where friendly troops are concealed, based on her actions, those locations are then targeted. Response: Shoot to
eliminate the threat … .”).
239 See, e.g., United States v. Hamdan 6 (Dec. 19, 2007), reversed on different grounds, 696 F.3d 1238 (D.C. Cir.
2012) (“The Commission also finds that the accused directly participated in those hostilities by driving a vehicle
containing two surface-to-air missiles in both temporal and spatial proximity to both ongoing combat operations [in
the nearby town of Takta Pol and the more distant Kandahar]. … Although Kandahar was a short distance away, the
accused’s past history of delivering munitions to Taliban and al Qaeda fighters, his possession of a vehicle
containing surface to air missiles, and his capture while driving in the direction of a battle already underway,
satisfies the requirement of ‘direct participation.’”).
228
• police services (e.g., police officers who maintain public order against common criminals
during armed conflict);240
• independent journalism or public advocacy (e.g., opinion journalists who write columns
supporting or criticizing a State’s war effort);241
• working in a munitions factory or other factory that is not in geographic or temporal
proximity to military operations but that is supplying weapons, materiel, and other goods
useful to the armed forces of a State;242 or
• providing medical care or impartial humanitarian assistance.
Although performing these activities does not make a person liable to being made the object of
attack, performing these activities also does not immunize a person from attack if that person
takes a direct part in hostilities or is otherwise lawfully made the object of attack.
5.9.3.3 Taking a Direct Part in Hostilities and Standards for the Use of Force in
Self-Defense. In the practice of the United States, the U.S. armed forces have been authorized to
use necessary and proportional force in self-defense in response to hostile acts or demonstrated
hostile intent.243
In some cases, hostile acts or demonstrated hostile intent may also constitute taking a
direct part in hostilities. However, hostile acts and demonstrated hostile intent in some respects
may be narrower than the concept of taking a direct part in hostilities. For example, although
supplying weapons and ammunition in close geographic or temporal proximity to their use is a
240 Refer to § 4.23.1 (Police as Civilians).
241 Refer to § 4.24.2 (Other Journalists). Cf. ICTY, Final Report to the Prosecutor by the Committee Established to
Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, ¶47 (Jun. 13, 2000) (“Whether
the media constitutes a legitimate target group is a debatable issue. If the media is used to incite crimes, as in
Rwanda, then it is a legitimate target. If it is merely disseminating propaganda to generate support for the war
effort, it is not a legitimate target.”).
242 BOTHE, PARTSCH, & SOLF, NEW RULES 303 (AP I art. 51, ¶2.4.2.2) (noting that during international armed
conflict, “workers in defense plants or those engaged in distribution or storage of military supplies in rear areas, do
not pose an immediate threat to the adversary and therefore would not be subject to deliberate individual attack”).
However, these individuals assume the risk of incidental injury as a result of attacks against those factories. Refer to
§ 5.12.3.2 (Harm to Certain Individuals Who May Be Employed In or On Military Objectives).
243 For example, CHAIRMAN OF THE JOINT CHIEFS OF STAFF INSTRUCTION 3121.01B, Standing Rules of
Engagement/Standing Rules for the Use of Force for U.S. Forces, ¶6b(1) (June 13, 2005), reprinted in
INTERNATIONAL AND OPERATIONAL LAW DEPARTMENT, THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER &
SCHOOL, U.S. ARMY, OPERATIONAL LAW HANDBOOK 95 (2007) (“Unit commanders always retain the inherent right
and obligation to exercise unit self-defense in response to a hostile act or demonstrated hostile intent. Unless
otherwise directed by a unit commander as detailed below, military members may exercise individual self-defense in
response to a hostile act or demonstrated hostile intent.”); CHAIRMAN OF THE JOINT CHIEFS OF STAFF INSTRUCTION
3121.01A, Standing Rules of Engagement for US Forces, Enclosure A, A-1 (Jan. 15, 2000), reprinted in
INTERNATIONAL AND OPERATIONAL LAW DEPARTMENT, THE JUDGE ADVOCATE GENERAL'S SCHOOL, U.S. ARMY,
JA, OPERATIONAL LAW HANDBOOK 102 (2006) (“US forces always retain the right to use necessary and
proportional force for unit and individual self-defense in response to a hostile act or demonstrated hostile intent.”).
229
common example of taking a direct part in hostilities, it would not necessarily constitute a hostile
act or demonstrated hostile intent.
On the other hand, hostile acts and demonstrated hostile intent in some respects may be
broader than the concept of taking a direct part in hostilities. For example, the use of force in
response to hostile acts and demonstrated hostile intent applies outside hostilities, but taking a
direct part in hostilities is limited to acts that occur during hostilities. Thus, the concept of taking
a direct part hostilities must not be understood to limit the use of force in response to hostile acts
or demonstrated hostile intent.
In the practice of the United States, offensive combat operations against people who are
taking a direct part in hostilities have been authorized through specific rules of engagement.
5.9.4 Duration of Liability to Attack. There has been a range of views about the duration
for which civilians who have taken a direct part in hostilities forfeit protection from being made
the object of attack.244
In the U.S. approach, civilians who have taken a direct part in hostilities must not be
made the object of attack after they have permanently ceased their participation because there
would be no military necessity for attacking them. Persons who take a direct part in hostilities,
however, do not benefit from a “revolving door” of protection. There may be difficult cases not
clearly falling into either of these categories, and in such situations a case-by-case analysis of the
specific facts would be needed.245
5.9.4.1 Permanently Ceased Participation in Hostilities. If a civilian has
permanently ceased participation in hostilities, then that person must not be made the object of
attack because there is no military necessity for doing so.246 The assessment of whether a person
244 See, e.g., Nils Melzer, Background Paper - Direct Participation on Hostilities under International Humanitarian
Law - Expert Meeting of Oct. 25-26, 2004 34 (“At one end of the spectrum were experts who preferred narrowly
defining temporal scope and favoured strictly limiting loss of protection to the period where DPH is actually being
carried out. At the other end were experts who said that, once a person had undertaken an act constituting DPH, that
person must clearly express a will to definitively disengage and offer assurances that he or she will not resume
hostilities in order to regain protection against direct attack. However, opinions varied greatly and could not easily
be divided into two groups supporting distinct positions.”).
245 Public Committee against Torture in Israel, et al. v. Government of Israel, et al., HCJ 769/02, Israel Supreme
Court Sitting as the High Court of Justice, ¶40 (Dec. 11, 2005) (“These examples point out the dilemma which the
‘for such time’ requirement presents before us. On the one hand, a civilian who took a direct part in hostilities once,
or sporadically, but detached himself from them (entirely, or for a long period) is not to be harmed. On the other
hand, the ‘revolving door’ phenomenon, by which each terrorist has ‘horns of the alter’ (1 Kings 1:50) to grasp or a
‘city of refuge’ (Numbers 35:11) to flee to, to which he turns in order to rest and prepare while they grant him
immunity from attack, is to be avoided (see Schmitt, at p. 536; Watkin, at p. 12; Kretzmer, at p. 193; DINSTEIN, at p.
29; and Parks, at p. 118). In the wide area between those two possibilities, one finds the ‘gray’ cases, about which
customary international law has not yet crystallized. There is thus no escaping examination of each and every
case.”).
246 Refer to § 2.3 (Humanity).
230
has permanently ceased participation in hostilities must be based on a good faith assessment of
the available information.247
For example, a civilian might have engaged in an isolated instance of taking a direct part
in hostilities. This isolated instance is likely to have involved multiple acts, because taking a
direct part in hostilities normally includes deploying or moving to a position of attack and
exfiltrating from an attack.248 However, if this participation was an isolated instance that will
not be repeated, then no military necessity for attacking that person exists after he or she has
ceased taking a direct part in hostilities. Accordingly, the civilian must not be made the object of
attack after he or she has ceased taking a direct part in hostilities. However, there may be other
legal consequences from this isolated instance of participation. For example, such civilians may,
depending on the circumstances, be detained, interned, or prosecuted because of these actions.249
5.9.4.2 No “Revolving Door” Protection. The law of war, as applied by the
United States, gives no “revolving door” protection; that is, the off-and-on protection in a case
where a civilian repeatedly forfeits and regains his or her protection from being made the object
of attack depending on whether or not the person is taking a direct part in hostilities at that exact
time.250 Thus, for example, persons who are assessed to be engaged in a pattern of taking a
direct part in hostilities do not regain protection from being made the object of attack in the time
period between instances of taking a direct part in hostilities.251
247 Refer to § 5.4 (Assessing Information Under the Law of War).
248 Refer to § 5.9.3.1 (Examples of Taking a Direct Part in Hostilities).
249 Refer to § 4.18 (Private Persons Who Engage in Hostilities).
250 See also Kenneth Watkin, Opportunity Lost: Organized Armed Groups and the ICRC ‘Direct Participation in
Hostilities’ Interpretive Guidance, 42 NEW YORK UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLITICS
641, 689 (2010) (“Further, on one level the term ‘revolving door’ evokes the idea of a form of carnival shooting
gallery, where soldiers must wait until an opponent pops out from behind a door to be shot at. At some point, the
credibility of the law begins to be undermined by suggesting an opponent can repeatedly avail themselves of such
protection.”).
251 Kenneth Watkin, Opportunity Lost: Organized Armed Groups and the ICRC ‘Direct Participation in Hostilities’
Interpretive Guidance, 42 NEW YORK UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLITICS 641, 692 (2010)
(“However, given the lack of credibility associated with the term, there can be no ‘revolving door’ of protection.
After the first involvement, any subsequent act demonstrating direct participation would start to provide the basis to
believe that there is the beginning of a pattern of conduct that reflects an intention to regularly engage in the
hostilities. Repetitious participation can be considered in determining if such persons are in reality continuously
engaged in hostilities. When such participation occurs, affirmative disengagement would be required in order to
establish that such persons are no longer direct participants in hostilities.”). Cf. Bill Boothby, “And For Such Time
As”: The Time Dimension to Direct Participation in Hostilities, 42 NEW YORK UNIVERSITY JOURNAL OF
INTERNATIONAL LAW AND POLITICS 741, 765-66 (2010) (“In my view, an alternative interpretation of the treaty
language is equally valid. According to this alternative view, the temporal element in the provision lies both in the
phrase ‘unless and for such time’ and in the word ‘participates.’ … If, however, a person engages in repeated acts of
DPH, there is an evident artificiality in regarding that individual as having protected status during the intervals in
between. Experience shows that during those periods a further act of direct participation by the persistent
participator is likely to be in prospect, and the likelihood is that during those intervals he will be preparing himself
for the next act, checking his equipment, obtaining any additional equipment or stores he may require,
communicating with like-minded or otherwise involved individuals, refining his plan and so on. While some such
activities may be DP in their own right, the more important point is that a person who is so engaged cannot be
231
A “revolving door” of protection would place these civilians who take a direct part in
hostilities on a better footing than lawful combatants, who may be made the object of attack even
when not taking a direct part in hostilities.252 The United States has strongly disagreed with
posited rules of international law that, if accepted, would operate to give the so-called “farmer by
day, guerilla by night” greater protections than lawful combatants.253 Adoption of such a rule
would risk diminishing the protection of the civilian population.
5.9.5 Civilians Who Take a Direct Part in Hostilities and the Law of War. Although the
concept of direct participation in hostilities may be discussed in contexts besides targeting, such
as in the context of criminal liability or detention, there are often significant differences between
“taking a direct part in hostilities” for targeting purposes and the standards used for assessing
whether a civilian may be detained or prosecuted.
For example, whether someone may be made the object of attack for taking a direct part
in hostilities is different from whether he or she may be prosecuted for his or her actions. In
some cases, domestic criminal liability for support to enemy armed groups is much broader than
what acts constitute “taking a direct part in hostilities.”
Similarly, the authority to detain enemy persons during wartime extends beyond
detaining those who have taken a direct part in hostilities.254
5.10 PERSONS PLACED HORS DE COMBAT
Persons, including combatants, placed hors de combat may not be made the object of
attack. Persons placed hors de combat include the following categories of persons, provided
they abstain from any hostile act and do not attempt to escape:
• persons in the power of an adverse party;
• persons not yet in custody, who have surrendered;
• persons who have been rendered unconscious or otherwise incapacitated by wounds,
sickness, or shipwreck; and
• persons parachuting from aircraft in distress.
5.10.1 Hors de Combat - Notes on Terminology. Hors de combat is a French phrase that
means “out of the battle.” It is generally used as a term of art to mean persons who may not be
made the object of attack because they are out of the fighting and who therefore must be treated
humanely.
equated with a civilian who remains uninvolved in the conflict. To do so is to place at risk the respect, based on
law, to be accorded to the civilian population.”).
252 Refer to § 5.8.1 (Armed Forces and Groups and Liability to Being Made the Object of Attack).
253 Refer to § 4.18.3 (Private Persons Who Engage in Hostilities - Lack of the Privileges of Combatant Status).
254 Refer to § 4.8.3 (Civilians - Detention); § 4.4.2 (Combatants - POW Status During Detention).
232
Hors de combat is used in Common Article 3 of the 1949 Geneva Conventions255 and has
been defined in Article 41 of AP I.256
5.10.2 Persons in the Power of an Adverse Party. Persons in the power of an adverse
party include all persons detained by an adverse party, such as POWs, unprivileged belligerents,
retained personnel, and civilian internees. As with other categories of persons hors de combat,
detainees must refrain from hostile acts or attempts to escape in order to be considered hors de
combat.257
5.10.3 Persons Who Have Surrendered. Persons who are not in custody but who have
surrendered are hors de combat and may not be made the object of attack.258 In order to make a
person hors de combat, the surrender must be (1) genuine; (2) clear and unconditional; and (3)
under circumstances where it is feasible for the opposing party to accept the surrender.259
5.10.3.1 Genuine. The offer to surrender must be genuine. In addition to being
legally ineffective, feigning the intent to surrender can constitute perfidy.260
5.10.3.2 Clear and Unconditional. The offer to surrender must be clear and
unconditional.
Any arms being carried should be laid down. All hostile acts or resistance, or
manifestations of hostile intent, including efforts to escape or to destroy items, documents, or
equipment to prevent their capture by the enemy, would need to cease immediately for the offer
to be clear and unconditional. Raising one’s hands above one’s head to show that one is not
255 GWS art. 3(1) (requiring humane treatment for “[p]ersons taking no active part in the hostilities, including
members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds,
detention, or any other cause”); GWS-SEA art. 3(1) (same); GPW art. 3(1) (same); GC art. 3(1) (same).
256 AP I art. 41(2) (“A person is hors de combat if: (a) He is in the power of an adverse Party; (b) He clearly
expresses an intention to surrender; or (c) He has been rendered unconscious or is otherwise incapacitated by
wounds or sickness, and therefore is incapable of defending himself; provided that in any of these cases he abstains
from any hostile act and does not attempt to escape.”).
257 Consider AP I art. 41(2) (“A person is hors de combat if: (a) He is in the power of an adverse Party; … provided
that in any of these cases he abstains from any hostile act and does not attempt to escape.”).
258 HAGUE IV REG. art. 23(c) (it is especially forbidden “[t]o kill or wound an enemy who, having laid down his
arms, or having no longer means of defence, has surrendered at discretion;”). Consider AP I art. 41(2) (“A person is
hors de combat if: … (b) He clearly expresses an intention to surrender; … provided that in any of these cases he
abstains from any hostile act and does not attempt to escape.”).
259 Harold Hongju Koh, Legal Adviser, Department of State, The Lawfulness of the U.S. Operation Against Osama
bin Laden, May 19, 2011, 2011 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 558-59 (“Finally,
consistent with the laws of armed conflict and U.S. military doctrine, the U.S. forces were prepared to capture bin
Laden if he had surrendered in a way that they could safely accept. The laws of armed conflict require acceptance
of a genuine offer of surrender that is clearly communicated by the surrendering party and received by the opposing
force, under circumstances where it is feasible for the opposing force to accept that offer of surrender. But where
that is not the case, those laws authorize use of lethal force against an enemy belligerent, under the circumstances
presented here.”).
260 Refer to § 5.22.3 (Examples of Killing or Wounding by Resort to Perfidy).
233
preparing to fire a weapon or engage in combat is often a sign of surrender. Waving a white flag
technically is not a sign of surrender, but signals a desire to negotiate.261
The surrender must be “at discretion,” i.e., unconditional.262 A person who offers to
surrender only if certain demands are met would not be hors de combat until that offer has been
accepted.
5.10.3.3 Under Circumstances in Which It Is Feasible to Accept. For an offer of
surrender to render a person hors de combat, it must be feasible for the opposing party to accept
the offer.263 By way of comparison, a city may not be declared “undefended” (and thus
essentially surrendered) if it is not open for immediate physical occupation by opposing military
forces.264
The feasibility of accepting the surrender refers to whether it is practical and safe for the
opposing force to take custody of the surrendering persons in the circumstances. For example,
consider the situation of enemy soldiers who man an antiaircraft gun and shoot at an enemy
aircraft, and then who raise their hands as if to surrender seconds before a second aircraft attacks
their position. In the circumstances, it would not be feasible for the crew of the attacking aircraft
to land and accept their surrender.265 Similarly, a soldier fifty meters from an enemy defensive
position in the midst of an infantry assault by his unit could not throw down his weapon and raise
his arms (as if to indicate his desire to surrender) and reasonably expect that the defending unit
will be able to accept and accomplish his surrender while resisting the ongoing assault by his
unit.266
Although the feasibility of accepting surrender includes consideration of whether it is
feasible to take custody of the persons offering to surrender, this does not include consideration
of whether it is feasible to care for detainees after taking custody. Offers to surrender may not be
refused because it would be militarily inconvenient or impractical to guard or care for
detainees.267
261 Refer to § 12.4 (The White Flag of Truce to Initiate Negotiations).
262 HAGUE IV REG. art. 23(c) (it is especially forbidden “[t]o kill or wound an enemy who, having laid down his
arms, or having no longer means of defence, has surrendered at discretion;”) (emphasis added).
263 See FINAL REPORT ON THE PERSIAN GULF WAR 629 (“Surrender involves an offer by the surrendering party (a
unit or an individual soldier) and an ability to accept on the part of his opponent. The latter may not refuse an offer
of surrender when communicated, but that communication must be made at a time when it can be received and
properly acted upon - an attempt at surrender in the midst of a hard-fought battle is neither easily communicated nor
received. The issue is one of reasonableness.”).
264 Refer to § 5.15.3.1 (Open for Immediate Physical Occupation).
265 Refer to § 14.9.3.2 (Feasibility of Air Units to Accept the Surrender of Ground Forces).
266 See SPAIGHT, WAR RIGHTS ON LAND 92-93 (“A party in a trench must all surrender, genuinely and unmistakably,
for a regiment, squadron, company or squad of men is not like a ship, which, when it ‘hath its bellyful of fighting,’
hauls down its colours and is clearly out of the fight. There is no such homogeneity in a unit in land war. … It is the
safest rule for a commander to pay no heed to a white flag which is hoisted, in the midst of an action, by a few men
who form part of a more considerable force which still resists.”).
267 Refer to § 9.5.2.1 (Prohibition on Killing of POWs).
234
5.10.4 Persons Rendered Unconscious or Otherwise Incapacitated by Wounds, Sickness,
or Shipwreck. Persons who have been rendered unconscious or otherwise incapacitated by
wounds, sickness, or shipwreck, such that they are no longer capable of fighting, are hors de
combat.268
Those “rendered unconscious” does not include persons who simply fall asleep. Sleeping
combatants generally may be made the object of attack.269
Shipwrecked combatants include those who have been shipwrecked from any cause and
includes forced landings at sea by or from aircraft.270
Persons who have been incapacitated by wounds, sickness, or shipwreck are in a helpless
state, and it would be dishonorable and inhumane to make them the object of attack.271 In order
to receive protection as hors de combat, the person must be wholly disabled from fighting.272 On
the other hand, many combatants suffer from wounds and sickness, but nonetheless continue to
fight and would not be protected.273
In many cases, the circumstances of combat may make it difficult to distinguish between
persons who have been incapacitated by wounds, sickness, or shipwreck and those who continue
268 Consider AP I art. 41(2) (“A person is hors de combat if: … (c) He has been rendered unconscious or is
otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself; provided that in any
of these cases he abstains from any hostile act and does not attempt to escape.”).
269 For example, Judy G. Endicott, Raid on Libya: Operation ELDORADO CANYON, in SHORT OF WAR: MAJOR USAF
CONTINGENCY OPERATIONS 1947-1997 (A. Timothy Warnock, Air Force Historical Research Agency ed., 2000)
(describing Operation ELDORADO CANYON, in which the United States responded to the Berlin discotheque bombing
by conducting air strikes on multiple Libyan targets—including two military barracks—in the early hours of April
15, 1986).
270 Refer to § 7.3.1.2 (Shipwrecked).
271 GWS-SEA COMMENTARY 87 (“[I]t must be pointed out that the purpose of this provision [i.e., the first paragraph
of Article 12 of the GWS-Sea], and indeed of the whole Convention, is to protect wounded, sick and shipwrecked
persons who, if they were not in this helpless state, could rightfully be attacked.”).
272 Cf. LIEBER CODE art. 71 (“Whoever intentionally inflicts additional wounds on an enemy already wholly
disabled, or kills such an enemy, or who orders or encourages soldiers to do so, shall suffer death, if duly convicted,
whether he belongs to the Army of the United States, or is an enemy captured after having committed his
misdeed.”).
273 GWS COMMENTARY 136 footnote 1 (“Cases are frequent of soldiers who have heroically continued to fight in
spite of serious wounds. It goes without saying that in so doing they renounce any claim to protection under the
Convention.”).
235
to fight.274 If possible, those seeking protection as wounded, sick, or shipwrecked, should make
their condition clear.275
5.10.5 Persons Parachuting From an Aircraft in Distress. In general, persons, such as
aircrew or embarked passengers, parachuting from an aircraft in distress are treated as though
they are hors de combat, i.e., they must not be made the object of attack.276
This protection is provided because a person descending by parachute is temporarily hors
de combat just like someone who is shipwrecked277 or unconscious.278
5.10.5.1 No Hostile Acts or Attempts to Evade Capture. As with other categories
of persons hors de combat, the protection from being made the object of attack is forfeited if the
persons engage in hostile acts or attempt to evade capture.
Routine “slipping” to steer a parachute or similar actions to facilitate a safe parachute
landing do not constitute acts of evasion.
5.10.5.2 Persons Deploying Into Combat by Parachute. Persons deploying into
combat by parachute may be attacked throughout their descent, and upon landing.
Persons deploying into combat by parachute may include special operations or
reconnaissance personnel, combat control teams, or airborne forces (i.e., specialized combat
forces trained to arrive at military objectives by parachute drops).
274 GWS-SEA COMMENTARY 90 (“[D]uring a landing by armed forces it will not always be possible while the attack
is in progress to distinguish between an attacker trying to reach land and a soldier in danger of drowning. Similarly,
in the case of persons specialized in under-water attacks, it may not always be evident when they are in peril and
need assistance as shipwrecked. In such instances, persons in distress who renounce active combat can only expect
the adversary to respect and rescue them if they make their situation clear, and of course provided the adversary sees
their signals.”).
275 Compare § 5.10.3.2 (Clear and Unconditional).
276 1956 FM 27-10 (Change No. 1 1976) ¶30 (“The law of war does not prohibit firing upon paratroops or other
persons who are or appear to be bound upon hostile missions while such persons are descending by parachute.
Persons other than those mentioned in the preceding sentence who are descending by parachute from disabled
aircraft may not be fired upon.”); APPENDIX TO 1985 CJCS MEMO ON AP I 31 (“Article 42 of the Protocol prohibits
attacks on aircrew members descending by parachute from disabled aircraft. The United States regards such attacks
as prohibited under customary international law, and the US delegation argued for explicit recognition of such a rule
at the diplomatic conference which negotiated the Protocol.”). Consider AP I art. 42 (“1. No person parachuting
from an aircraft in distress shall be made the object of attack during his descent. … 3. Airborne troops are not
protected by this Article.”); Commission of Jurists to Consider and Report Upon the Revision of the Rules of
Warfare, General Report, Part II: Rules of Aërial Warfare, art. 20, Feb. 19, 1923, reprinted in 32 AJIL
SUPPLEMENT: OFFICIAL DOCUMENTS 12, 21 (1938) (“When an aircraft has been disabled, the occupants, when
endeavoring to escape by means of a parachute, must not be attacked in the course of their descent.”).
277 ICRC AP COMMENTARY 495 (¶1637) (“There is absolutely no doubt that the majority [of States at the diplomatic
conference] considered that airmen in distress are comparable to the shipwrecked persons protected by the Second
Convention.”).
278 ICRC AP COMMENTARY 497 (¶1644) (“The airman who parachutes from an aircraft in distress is therefore
temporarily hors de combat, just as if he had lost consciousness, until the moment that he lands on the ground, and
as long as he is incapacitated.”).
236
Persons deploying into combat by parachute may be attacked even if they deploy from an
aircraft in distress (e.g., the enemy has attacked the aircraft to resist the assault).
It may be the case, however, that airborne forces are parachuting from an aircraft in
distress outside the context of an airborne assault. Since they would not be “deploying into
combat,” they would be hors de combat while descending by parachute.
5.11 FEASIBLE PRECAUTIONS IN CONDUCTING ATTACKS TO REDUCE THE RISK OF HARM TO
PROTECTED PERSONS AND OBJECTS
Combatants must take feasible precautions in conducting attacks to reduce the risk of
harm to civilians and other protected persons and objects.279 As discussed above, what
precautions are feasible depend greatly on the context, including operational considerations.280
Feasible precautions in conducting attacks may include the following:
5.11.1 Effective Advance Warning Before an Attack That May Affect the Civilian
Population. Effective advance warning must be given of an attack that may affect the civilian
population, unless circumstances do not permit.281
In addition, warning requirements exist before certain medical units, vessels, or facilities
forfeit their protection from being made the object of attack:
279 See HAGUE IV REG art. 27 (“In sieges and bombardments all necessary steps must be taken to spare, as far as
possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and
places where the sick and wounded are collected, provided they are not being used at the time for military
purposes.”); HAGUE IX art. 5 (“In bombardments by naval forces all the necessary measures must be taken by the
commander to spare as far as possible sacred edifices, buildings used for artistic, scientific, or charitable purposes,
historic monuments, hospitals, and places where the sick or wounded are collected, on the understanding that they
are not used at the same time for military purposes.”); Harold Koh, Legal Adviser, Department of State, Letter to
Paul Seger, Legal Adviser of Switzerland regarding Switzerland’s Position on the U.S. Reservation to Protocol III
of the Convention on Certain Conventional Weapons, Dec. 30, 2009 (“In particular, the U.S. reservation is
consistent with article 57(2)(ii) and article 57(4) of the 1977 Additional Protocol I to the Geneva Conventions.
Article 57(4) provides that governments shall ‘take all reasonable precautions to avoid losses of civilian lives and
damage to civilian objects.’ Although the United States is not a party to Additional Protocol I, we believe these
provisions are an accurate statement of the fundamental law of war principle of discrimination.”). Consider AP I
art. 57(2) (“With respect to attacks, the following precautions shall be taken: (a) Those who plan or decide upon an
attack shall:
… (ii) 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;”); AP I art. 57(4) (“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.”).
280 Refer to § 5.3.3 (Affirmative Duties to Take Feasible Precautions for the Protection of Civilians and Other
Protected Persons and Objects).
281 HAGUE IV REG. art. 26 (“The officer in command of an attacking force must, before commencing a
bombardment, except in cases of assault, do all in his power to warn the authorities.”); HAGUE IX art. 6 (“If the
military situation permits, the commander of the attacking naval force, before commencing the bombardment, must
do his utmost to warn the authorities.”); LIEBER CODE art. 19 (“Commanders, whenever admissible, inform the
enemy of their intention to bombard a place, so that the noncombatants, and especially the women and children, may
be removed before the bombardment commences. But it is no infraction of the common law of war to omit thus to
inform the enemy. Surprise may be a necessity.”). Consider AP I art. 57(2)(c) (“Effective advance warning shall be
given of attacks which may affect the civilian population, unless circumstances do not permit.”).
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• military medical units and facilities;282
• ground medical transports;283
• hospital ships and sick-bays in warships;284
• civilian hospitals;285 and
• civilian hospital convoys.286
5.11.1.1 Effective Advance Warning. There is no set form for warnings.
Warnings may be general, communicated to the national leadership of the enemy State, or
delivered to the civilian population through military information support operations (such as
broadcast or leaflets) advising the civilian population of risk of injury if they remain near
military objectives. Giving the specific time and place of an attack is not required.287
Warnings have been used by U.S. forces conducting bombardments in many conflicts,
such as World War II,288 the Korean War,289 the 2003 Iraq War,290 and the armed conflict against
al-Qaida, the Taliban, and associated forces.291
282 Refer to § 7.10.3.2 (Due Warning Before Cessation of Protection).
283 Refer to § 7.11.1 (Protection of Ground Medical Transports on the Same Basis as That of Medical Units).
284 Refer to § 7.12.6.1 (Due Warning Before Cessation of Protection).
285 Refer to § 7.17.1.2 (Due Warning Before Cessation of Protection).
286 Refer to § 7.18.1 (Protection of Civilian Hospital Convoys on the Same Basis as That of Civilian Hospitals).
287 U.S. Comments on the International Committee of the Red Cross’s Memorandum on the Applicability of
International Humanitarian Law in the Gulf Region, Jan. 11, 1991, DIGEST OF UNITED STATES PRACTICE IN
INTERNATIONAL LAW 1991-1999 2057, 2064 (“A warning need not be specific. It may be a blanket warning,
delivered by leaflets and/or radio, advising the civilian population of an enemy nation to avoid remaining in
proximity to military objectives.”).
288 For example, SPAIGHT, AIR POWER AND WAR RIGHTS 242 (“An hour and a half before the Skoda armament
works at Pilsen in Czechoslovakia were attacked by Flying Fortresses of the 8th U.S.A.A.F. on 25 April, 1945,
Supreme Allied Headquarters broadcast the following warning: ‘Allied bombers are out in great strength to-day.
Their destination may be the Skoda works. Skoda workers get out and stay out until the afternoon.’”); SPAIGHT, AIR
POWER AND WAR RIGHTS 243 (“Before objectives in the French town of Annecy were bombed on the night of 9
May, 1944, the alert was sounded by an Allied plane equipped with a siren. It cruised over the town for twenty
minutes before the first bombers arrived, with the result that the inhabitants had time to seek shelter and only those
who disregarded the warning were injured.”).
289 For example, Report of the United Nations Command Operations in Korea for the Period 1-15 July 1952,
enclosure to Note Dated 8 October 1952 From the Representative of the United States Addressed to the Secretary-
General Transmitting the Forty-Ninth Report of the United Nations Command Operations in Korea in Accordance
with the Security Council Resolution of 7 July 1950 (S/1588 ), U.N. Doc. S/2805 (Oct. 9, 1952) (“For approximately
one month prior to the raid on Pyongyang and other main supply targets, the United Nations Command aircraft had
dropped leaflets warning civilians to stay away from military targets. Immediately after the strikes more leaflets
were dropped telling civilians to beware of delayed action bombs and to stay away from bomb craters. Every
precaution was taken to attack only military targets and to prevent injury to non-combatants. … In consonance with
the United Nations policy of taking every possible step both to restore peace and to prevent needless loss of life,
United Nations Command leaflets and radio broadcasts are being used continually to warn civilians in enemy-
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5.11.1.2 That May Affect the Civilian Population. The purpose of warning is to
facilitate the protection of the civilian population so that they can take measures to avoid the
dangers inherent in military operations. If the civilian population will not be affected, then there
is no obligation to provide a warning.292
5.11.1.3 Unless Circumstances Do Not Permit. These circumstances include
legitimate military reasons, such as exploiting the element of surprise in order to provide for
mission accomplishment and preserving the security of the attacking force.293
5.11.2 Adjusting the Timing of the Attack. Adjusting the timing of an attack may reduce
the risk of incidental harm. For example, attacking a military objective when civilians are less
likely to be present may be appropriate.294 Similarly, it may be appropriate to wait until enemy
forces have departed from populated areas before attacking such forces in order to reduce the
risk of civilian casualties.295
5.11.3 Selecting Weapons (Weaponeering). Depending on the circumstances, the use of
certain weapons rather than others may lower the risk of incidental harm, while offering the same
or superior military advantage in neutralizing or destroying a military objective.
occupied northern Korea to move away from places where the Communists have concentrated war material factories
and military equipment, supplies and personnel. These warnings are a humanitarian measure taken to minimize
civilian loss of life in United Nations Command attacks on military targets.”).
290 For example, Jim Garamone, Coalition Aircraft “Paper” Iraq With Leaflets, AMERICAN FORCES PRESS SERVICE,
Mar. 19, 2003 (stating that Coalition forces “dropped almost 2 million leaflets over Iraq” that “warned Iraqis to stay
away from military targets”).
291 For example, Jim Garamone, U.S. Commando Solo II Takes Over Afghan Airwaves, AMERICAN FORCES PRESS
SERVICE, Oct. 29, 2001 (describing the Commando Solo II flights that use broadcasts “to warn the Afghan
population to stay away from Taliban and Al Qaeda targets,” including one broadcast that warns civilians to “‘[s]tay
away from military installations, government buildings, terrorist camps, roads, factories or bridges’”).
292 GREENSPAN, MODERN LAW OF LAND WARFARE 338-39 (“Naturally, there is no obligation to give notice where
no civilians remain, and only the military will come under fire.”).
293 U.S. Comments on the International Committee of the Red Cross’s Memorandum on the Applicability of
International Humanitarian Law in the Gulf Region, Jan. 11, 1991, DIGEST OF UNITED STATES PRACTICE IN
INTERNATIONAL LAW 1991-1999 2057, 2064 (“The ‘unless circumstances do not permit’ recognizes the importance
of the element of surprise. Where surprise is important to mission accomplishment and allowable risk to friendly
forces, a warning is not required.”).
294 For example, FINAL REPORT ON THE PERSIAN GULF WAR 100 (noting that during Operation DESERT STORM
“attacks on known dual (i.e., military and civilian) use facilities normally were scheduled at night, because fewer
people would be inside or on the streets outside.”).
295 For example, FINAL REPORT ON THE PERSIAN GULF WAR 631 (“The concentration of Iraqi military personnel and
vehicles, including tanks, invited attack. CINCCENT decided against attack of the Iraqi forces in Kuwait City, since
it could lead to substantial collateral damage to Kuwaiti civilian property and could cause surviving Iraqi units to
decide to mount a defense from Kuwait City rather than depart. Iraqi units remaining in Kuwait City would cause
the Coalition to engage in military operations in urban terrain, a form of fighting that is costly to attacker, defender,
innocent civilians, and civilian objects. The decision was made to permit Iraqi forces to leave Kuwait City and
engage them in the unpopulated area to the north.”).
239
For example, it may be advantageous to employ incendiary weapons in attacking an
adversary’s repository of biological weapons so as to prevent the biological agents from
adversely affecting the civilian population.296 Similarly, under certain circumstances, it may be
advantageous to use cluster munitions or precision-guided munitions to minimize the risk of
incidental harm.297
As with other precautions, the decision of which weapon to use will be subject to many
practical considerations, including effectiveness, cost, and the need to preserve capabilities for
other engagements. Thus, there would be few, if any, instances in which the use of a particular
weapon system, such as precision-guided munitions or cyber tools,298 would be the only legally
permissible weapon.299
5.11.4 Identifying Zones in Which Military Objectives Are More Likely to Be Present or
Civilians Are Likely to Be Absent. Identifying and designating zones in which military
objectives are more likely to be present or civilians are likely to be absent may also reduce the
risk of harm to civilians or other protected persons and objects.
For example, attacks in areas in which civilians are present might be subject to greater
restrictions.300 Similarly, it may be possible to identify areas in which objects of the greatest
296 Refer to § 6.14 (Incendiary Weapons).
297 For example, W. Hays Parks, Linebacker and the Law of War, AIR UNIVERSITY REVIEW (Jan.-Feb. 1983)
(During the Vietnam War, the North Vietnamese placed “AAA gun positions, ground-controlled intercept (GCI)
radar, and surface-to-air missile (SAM) sites atop or adjacent to dikes, and storing POL [petroleum, oil, and
lubricants] alongside or on top of dikes as a shield against attack. All were legitimate targets. … When [the air
defenses] were finally authorized for attack during Linebacker I, it was with the stipulation that the targets were to
be attacked with weapons that would minimize the risk of structural damage to the dikes. This was accomplished
through the use of napalm, strafing, cluster munitions, and other antipersonnel weapons.”). Refer to § 6.13.2 (Use of
Cluster Munitions to Reduce the Risk of Incidental Harm); § 6.14.3.2 (U.S. Reservation to CCW Protocol III on
Incendiary Weapons).
298 Refer to § 14.9.2 (Selection of Weapons in Conducting Attacks From the Air Against Ground Military
Objectives); § 16.5.3.1 (Cyber Tools as Potential Measures to Reduce the Risk of Harm to Civilians or Civilian
Objects).
299 See, e.g., 2013 GERMAN MANUAL ¶1117 (“The law of armed conflict (LOAC) contains no obligation to use
precision guided ammunition. There may however be situations in which the obligation to discriminate between
military targets and civilians/civilian objects or the obligation to avoid or minimise collateral damage cannot be
fulfilled without the use of such weapons.”) (internal cross-reference omitted); 2006 AUSTRALIAN MANUAL ¶8.38
(“The existence of precision-guided weapons, such as GBU 10 and Harpoon missiles, in a military inventory does
not mean that they must necessarily be used in preference to conventional weapons even though the latter may cause
collateral damage. In many cases, conventional weapons may be used to bomb legitimate military targets without
violating the LOAC requirements. It is a command decision as to which weapon to use. This decision will be
guided by the basic principles of the LOAC: military necessity, avoidance of unnecessary suffering and
proportionality.”); 2001 CANADIAN MANUAL ¶527(1) (“With the advent of modern technology many armed forces
are now able to deliver weapons on target with much greater precision. However, states are not limited to the use of
precision weapons and munitions. An attack by conventional, free-fall weapons or ‘dumb’ bombs is lawful
provided that the overriding principles of proportionality and superfluous injury/unnecessary suffering as well as
other applicable rules are not violated.”).
300 For example, General Petraeus, Unclassified Excerpts from Tactical Directive, Aug. 1, 2010, reprinted in
International Security Assistance Force - Afghanistan, Headquarters, General Petraeus Issues Updated Tactical
Directive: Emphasizes “Disciplined Use of Force,” Aug. 4, 2010 (“Prior to the use of fires, the commander
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military importance are located and to place additional restrictions on attacks conducted outside
these areas in order to limit unnecessary destruction.301
5.11.5 AP I Provision on Choice Possible Between Several Military Objectives. AP I
provides that “[w]hen 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.”302 The United States
has expressed the view that this rule is not a requirement of customary international law.303
5.12 PROPORTIONALITY IN CONDUCTING ATTACKS
Combatants must refrain from attacks in which the expected loss of life or injury to
civilians, and damage to civilian objects incidental to the attack, would be excessive in relation
to the concrete and direct military advantage expected to be gained.304 This is commonly called
the proportionality rule.
approving the strike must determine that no civilians are present. If unable to assess the risk of civilian presence,
fires are prohibited, except under of the following two conditions (specific conditions deleted due to operational
security; however, they have to do with the risk to ISAF and Afghan forces). (NOTE) This directive, as with the
previous version, does not prevent commanders from protecting the lives of their men and women as a matter of
self-defense where it is determined no other options are available to effectively counter the threat.).”); U.S.
MILITARY ASSISTANCE COMMAND VIET-NAM DIRECTIVE 525-13, Military Operations: Rules of Engagement for the
Employment of Firepower in the Republic of Vietnam, ¶5g (May 1971), reprinted in 1975 DIGEST OF UNITED
STATES PRACTICE IN INTERNATIONAL LAW 814, 815 (“Specified Strike Zones (SSZ). An area designated for a
specific period of time by Government of South Viet-Nam (G.V.N.) RVNAF [Republic of Vietnam Armed Forces]
in which there are no friendly forces or populace and in which targets may be attacked on the initiative of
U.S./FWMAF/RVNAF commanders. SSZ will not be referred to as ‘Free Fire Zones.’ Furthermore, the term ‘Free
Fire Zone’ will not be used under any circumstances.”).
301 For example, MALCOLM W. CAGLE & FRANK A. MANSON, THE SEA WAR IN KOREA 97 (1957) (“Vice Admiral
Struble’s orders to the bombardment forces clearly specified that there should be no promiscuous firing at the city
itself or at civilian installations. To achieve this, the entire objective area had been divided into 60 sub-areas.
Known military targets had been previously assigned, and those which offered the greatest potential hazard to our
landing troops were circled in red. It had been agreed that any ship could fire into a red-circle area with or without a
‘spot.’ In the uncircled areas, however, firing was permitted only if definite targets were found and an air spot was
available. This differentiation between types of areas was adopted to reduce destruction of nonmilitary targets to a
minimum, to save the city of Inchon for occupation forces, and to avoid injury to civilian personnel. ‘The Seoul-
Inchon area is inhabited by our South Korean Allies,’ said Struble in an order to his forces, ‘and our forces plan to
utilize facilities in this area. Unnecessary destruction will impede our progress. Bombing and gunfire will be
confined to targets whose destruction will contribute to the conduct of operations - accurate gunfire and pinpoint
bombing against specific targets, rather than area destruction, is contemplated.”).
302 AP I art. 57(3).
303 U.S. Comments on the International Committee of the Red Cross’s Memorandum on the Applicability of
International Humanitarian Law in the Gulf Region, Jan. 11, 1991, DIGEST OF UNITED STATES PRACTICE IN
INTERNATIONAL LAW 1991-1999 2057, 2064 (“Paragraph 4B(4) contains the language of Article 57(3) of Protocol I,
and is not a part of customary law. The provision applies ‘when a choice is possible … ;’ it is not mandatory. 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.”) (amendment shown in Digest).
304 1956 FM 27-10 (Change No. 1 1976) ¶41 (“loss of life and damage to property incidental to attacks must not be
excessive in relation to the concrete and direct military advantage expected to be gained. Those who plan or decide
upon an attack, therefore, must take all reasonable steps to ensure not only that the objectives are identified as
241
5.12.1 General Notes on Applying the Proportionality Rule in Conducting Attacks. In
conducting attacks, the proportionality rule only need be applied when civilians or civilian
objects are at risk of harm from attacks on military objectives. It would not apply when civilians
or civilian objects are not at risk.305
5.12.2 Types of Harm - Loss of Life, Injury, and Damage. The proportionality rule in
conducting attacks addresses loss of life, injury, and damage to property. Lesser forms of harm,
such as mere inconveniences or temporary losses, need not be considered in applying the
proportionality rule.306
5.12.2.1 Remote Harms. Remote harms resulting from the attack do not need to
be considered in a proportionality analysis. For example, the death of an enemy combatant
might cause economic harm to his or her family, or the destruction of a tank factory might cause
economic harm in the form of lost jobs; the attacker would not be required to consider such loss
in applying the proportionality rule.307 Similarly, the attacker would not be required to consider
in the proportionality analysis the possibility that a munition might not detonate as intended and
might injure civilians much later after the attack because the risk of such harm is too remote.308
military objectives or defended places within the meaning of the preceding paragraph but also that these objectives
may be attacked without probable losses in lives and damage to property disproportionate to the military advantage
anticipated.”). Consider AP I art. 51(5)(b) (considering as a prohibited indiscriminate attack “[a]n 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.”); AP I art.
57(2)
(a)(iii) (requiring that those who plan or decide upon an attack “[r]efrain 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”).
305 Refer to § 5.5.6 (Force That May Be Applied Against Military Objectives).
306 See Yoram Dinstein, Distinction and Loss of Civilian Protection in International Armed Conflicts, 84 U.S.
NAVAL WAR COLLEGE INTERNATIONAL LAW STUDIES, 183, 186 (2008) (“Yet it must be borne in mind that not
every inconvenience to civilians ought to be considered relevant. In war-time, there are inevitable scarcities of
foodstuffs and services. Indeed, food, clothing, petrol and other essentials may actually be rationed; buses and trains
may not run on time; curfews and blackouts may impinge on the quality of life; etc. These do not count in the
calculus of proportionality.”). Cf. WILLIAM H. BOOTHBY, THE LAW OF TARGETING 370 (2012) (“Issues of
proportionality do not of course arise where there is no attack. Thus where soft attack methods are adopted
resulting, perhaps, in inconvenience but neither injury nor damage, there is no requirement to consider that
inconvenience when deciding whether, and if so how, to undertake the military operation.”).
307 For example, Rear Admiral Thomas Wilson, Director of Intelligence, Joint Staff, DoD News Briefing, Apr. 22,
1999 (“Krusevac tractor plant in Serbia was a new target. You can see here assembly and engineering buildings
which were involved in manufacturing support or parts for tanks and APCs as well as for civilian vehicles, and we
had moderate to severe physical damage to these facilities with functional damage assessments being made at this
time
Q: At the Yugo factory there are tens of thousands of Yugoslav workers that can’t work. I take it the tractor
factory will put thousands out of work. Is that an intended strike against the economy of Milosevic? Rear Admiral
Wilson: The intent of the strike was to destroy their ability to sustain and repair military vehicles. It’s an
unfortunate consequence of the leadership's decision to pursue their policies that’s impacting the Yugoslav
people.”).
308 Christopher Greenwood, Legal Issues Regarding Explosive Remnants Of War, Group of Government Experts of
States Parties to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons,
CCW/GGE/I/WP.10 (2002) 8 (“If, for example, cluster weapons are used against military targets in an area where
242
5.12.2.2 Harm Resulting From Enemy Action, or Beyond the Control of Either
Party. Persons or objects harmed through action directly attributable to enemy action, or beyond
the control of either party, would be excluded from the attacking force’s proportionality analysis.
For example, civilians injured or killed by enemy air defense measures, such as spent
surface-to-air measures or antiaircraft projectiles, would not be considered in the attacking
force’s proportionality analysis.309 Similarly, the risk that the attacking force’s munitions would
be diverted from their intended target by legitimate deception activities of the opposing force,
such as jamming, smoke, or chaff, would not need to be considered in the attacking force’s
proportionality analysis.
5.12.3 Harm to Certain Categories of Persons and Objects That is Understood Not to
Prohibit Attacks Under the Proportionality Rule. Harm to the following categories of persons
and objects would be understood not to prohibit attacks under the proportionality rule: (1)
military objectives; (2) certain categories of individuals who may be employed in or on military
objectives; and (3) human shields.
5.12.3.1 Harm to Military Objectives. Harm to military objectives, including
enemy combatants, civilians taking a direct part in hostilities, and military equipment, need not
be considered in a proportionality analysis.
For example, an attack against an enemy combatant might also injure other enemy
combatants who were not the specific targets of the attack. Harm to these individuals or damage
to military objectives would not need to be taken into account in applying the proportionality
rule, even if this harm was an unintended result of the attack.
5.12.3.2 Harm to Certain Individuals Who May Be Employed In or On Military
Objectives. Harm to certain persons who may be employed in or on military objectives would be
understood not to prohibit attacks under the proportionality rule. These categories include:
• persons authorized to accompany the armed forces;310
there are known to be civilians, then the proportionality test may require that account be taken both of the risk to the
civilians from sub-munitions exploding during the attack and of the risk from unexploded sub-munitions in the
hours immediately after the attack. It is an entirely different matter, however, to require that account be taken of the
longer-term risk posed by [Explosive Remnants of War (ERW)], particularly of the risk which ERW can pose after a
conflict has ended or after civilians have returned to an area from which they had fled. The degree of that risk turns
on too many factors which are incapable of assessment at the time of the attack, such as when and whether civilians
will be permitted to return to an area, what steps the party controlling that area will have taken to clear unexploded
ordnance, what priority that party gives to the protection of civilians and so forth. The proportionality test has to be
applied on the basis of information reasonably available at the time of the attack. The risks posed by ERW once the
immediate aftermath of an attack has passed are too remote to be capable of assessment at that time.”).
309 See, e.g., FINAL REPORT ON THE PERSIAN GULF WAR 177-78 (During the 1991 Gulf War, “[t]here is also a
probability that some [incidental civilian] casualties occurred when unexploded Iraqi SAMs [surface-to-air missiles]
or AAA [antiaircraft artillery] fell back to earth. The often dense fire the Iraqis expended in attempts to shoot down
Coalition aircraft and cruise missiles almost certainly caused some destruction on the ground from malfunctioning
fuses or self-destruction features, as well as the simple impact of spent rounds.”).
310 Refer to § 4.15.2.3 (Increased Risk of Incidental Harm).
243
• parlementaires;311 and
• civilians workers who place themselves in or on a military objective, knowing that it is
susceptible to attack, such as workers in munitions factories.312
These persons are deemed to have assumed the risk of incidental harm from military
operations. Moreover, the law of war accepts that the defender may employ these persons to
support military operations near or within military objectives. If these persons could have the
effect of prohibiting attacks by the attacking force, then the defending force that used such
persons in proximity to its forces or military objectives would be unlawfully using the presence
of such persons to shield its operations or its military objectives from attack.313
5.12.3.3 Harm to Human Shields. Use of human shields violates the rule that
civilians may not be used to shield, favor, or impede military operations.314 The party that
employs human shields in an attempt to shield military objectives from attack assumes
responsibility for their injury, provided that the attacker takes feasible precautions in conducting
its attack.315
311 Refer to § 12.5.3 (Duties and Liabilities of the Parlementaire).
312 See 2007 NWP 1-14M ¶8.3.2 (“The presence of civilian workers, such as technical representatives aboard a
warship or employees in a munitions factory, in or on a military objective, does not alter the status of the military
objective. These civilians may be excluded from the proportionality analysis.”); BOTHE, PARTSCH, & SOLF, NEW
RULES 303 (AP I art. 51, ¶2.4.2.2) (During international armed conflict, workers in defense plants or those engaged
in distribution or storage of military supplies in rear areas “assume the risk of incidental injury as a result of attacks
against their places of work or transport.”); International Committee of the Red Cross, Draft Rules for the Limitation
of the Dangers Incurred by the Civilian Population in Time of War, art. 6(3), 9 (Sept. 1956) (“Nevertheless, should
members of the civilian population, Article 11 notwithstanding, be within or in close proximity to a military
objective they must accept the risks resulting from an attack directed against that objective.”).
313 Refer to § 5.16 (Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede Military
Operations).
314 Refer to § 5.16 (Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede Military
Operations).
315 U.S. Comments on the International Committee of the Red Cross’s Memorandum on the Applicability of
International Humanitarian Law in the Gulf Region, Jan. 11, 1991, DIGEST OF UNITED STATES PRACTICE IN
INTERNATIONAL LAW 1991-1999 2057, 2063 (“In no case may a combatant force utilize individual civilians or the
civilian population to shield a military objective from attack. A nation that utilizes civilians to shield a target from
attack assumes responsibility for their injury, so long as an attacker exercises reasonable precaution in executing its
operations. Likewise, civilians working within or in the immediate vicinity of a legitimate military objective assume
a certain risk of injury.”); Instructor Training Course, ¶3g, Appendix C in DEPARTMENT OF THE ARMY SUBJECT
SCHEDULE 27-1, The Geneva Conventions of 1949 and Hague Convention No. IV of 1907, 18 (Aug. 29, 1975) (“(4)
Question: Suppose we are receiving fire from the enemy, and they are using unarmed civilians as shields. May we
fire back, knowing that we will be killing many of these unarmed cilivians? Answer: Yes. We may fire since we
have the right to defend ourselves. The responsibility for innocent casualties falls upon those who would violate the
law of war by using innocents as shields.”).
244
If the proportionality rule were interpreted to permit the use of human shields to prohibit
attacks, such an interpretation would perversely encourage the use of human shields and allow
violations by the defending force to increase the legal obligations on the attacking force.316
5.12.4 “Excessive”. Under the proportionality rule, the potential attack against the
military objective is prohibited only when the expected incidental harm is excessive compared to
the military advantage to be gained.
The weighing or comparison between the expected incidental harm and the expected
military advantage does not necessarily lend itself to empirical analyses.317 On the one hand,
striking an ammunition depot or a terrorist training camp would not be prohibited because a
farmer is plowing a field in the area.318 On the other hand, a very significant military advantage
would be necessary to justify the collateral death or injury to thousands of civilians.319 In less
clear-cut cases, the question of whether the expected incidental harm is excessive may be a
highly open-ended legal inquiry, and the answer may be subjective and imprecise.320
316 Refer to § 5.5.4 (Failure by the Defender to Separate or Distinguish Does Not Relieve the Attacker of the Duty to
Discriminate in Conducting Attacks).
317 ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign
Against the Federal Republic of Yugoslavia, ¶48 (Jun. 13, 2000) (“The main problem with the principle of
proportionality is not whether or not it exists but what it means and how it is to be applied. It is relatively simple to
state that there must be an acceptable relation between the legitimate destructive effect and undesirable collateral
effects.
… Unfortunately, most applications of the principle of proportionality are not quite so clear cut. It is much
easier to formulate the principle of proportionality in general terms than it is to apply it to a particular set of
circumstances because the comparison is often between unlike quantities and values. One cannot easily assess the
value of innocent human lives as opposed to capturing a particular military objective.”).
318 ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign
Against the Federal Republic of Yugoslavia, ¶48 (Jun. 13, 2000) (“For example, bombing a refugee camp is
obviously prohibited if its only military significance is that people in the camp are knitting socks for soldiers.
Conversely, an air strike on an ammunition dump should not be prohibited merely because a farmer is plowing a
field in the area.”); ROGERS, LAW ON THE BATTLEFIELD 64-65 (“Accepting at face value for the sake of legal
analysis a press report of a pilot whose attack on an army lorry and a busload of soldiers also killed a small boy in a
civilian car, this could not be said to have violated the proportionality principle.”).
319 See, e.g., GREENSPAN, MODERN LAW OF LAND WARFARE 335 (“[A]n attack on a war factory which is known to
be of minor importance cannot justify the incidental destruction of the whole town where it is situated.”). For
example, W. Hays Parks, The 1977 Protocols to the Geneva Convention of 1949, 68 U.S. NAVAL WAR COLLEGE
INTERNATIONAL LAW STUDIES 467, 470 (1995) (“During the Vietnam War, for example, the North Vietnamese
installed substantial concentrations of antiaircraft guns and missiles on the earthware dikes and dams surrounding
Haiphong and Hanoi. Military necessity warranted airstrikes against these positions. However, attack of the
positions with conventional ordnance would destroy not only the enemy positions but the dams as well. This would
result in massive flooding and in the probable deaths of several hundred thousand civilians, a cost U.S. authorities
concluded was disproportionate to the military advantage to be gained. When the mission finally was approved by
President Nixon, it was executed with a clear proviso that only antipersonnel bombs, capable of neutralization of the
positions without substantial damage to the dikes, would be used.”).
320 Statement of Interest of the United States of America, Matar v. Dichter, 05 Civ. 10270 (WHP) (S.D.N.Y. Nov. 17,
2006), 2006 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 465, 471-72 (“Along similar lines,
plaintiffs cite Article 57 of Additional Protocol I, which provides, inter alia, that ‘[t]hose who plan or decide upon
an attack shall … [r]efrain 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.’ Additional Protocol I, Art. 57, cl. 2(a)(iii).
245
5.12.5 “Concrete and Direct Military Advantage Expected to Be Gained”. The expected
military advantage gained from attacking a particular military objective must be “concrete and
direct.”
The considerations in assessing a “definite military advantage” in the definition of
“military objective” are also relevant in assessing the “concrete and direct military advantage
expected to be gained.”321 There is no requirement that the military advantage be “immediate.”
However, the military advantage may not be merely hypothetical or speculative. Similarly,
“military advantage” is not restricted to immediate tactical gains, but may be assessed in the full
context of war strategy.322 The military advantage anticipated from an attack is intended to refer
to an attack considered as a whole, rather than only from isolated or particular parts of an
attack.323
Military advantage may involve a variety of considerations, including: (1) denying the
enemy the ability to benefit from the object’s effective contribution to its military action (e.g.,
using this object in its military operations); (2) improving the security of the attacking force; and
(3) diverting the enemy’s resources and attention.
Again, the rub lies in determining what counts as ‘excessive.’ Any number of intangibles must be [c]onsidered:
How important is the military objective sought to be achieved? What are the pros and cons of each option available
to achieve that objective? For each option, what is the probability of success? What are the costs of failure? What
are the risks of civilian casualties involved in each option? What are the risks of military casualties involved in each
option? How are casualties of either kind to be weighed against the benefits of the operation? In short, questions of
proportionality are highly open-ended, and the answers to them tend to be subjective and imprecise.”).
321 Refer to § 5.7.7.3 (Definite Military Advantage).
322 U.S. Comments on the International Committee of the Red Cross’s Memorandum on the Applicability of
International Humanitarian Law in the Gulf Region, Jan. 11, 1991, DIGEST OF UNITED STATES PRACTICE IN
INTERNATIONAL LAW 1991-1999 2057, 2064 (“The concept of ‘incidental loss of life excessive in relation to the
military advantage anticipated’ generally is measured against an overall campaign.”). For example, FINAL REPORT
ON THE PERSIAN GULF WAR 611 (“An uncodified but similar provision is the principle of proportionality. It
prohibits military action in which the negative effects (such as collateral civilian casualties) clearly outweigh the
military gain. This balancing may be done on a target-by-target basis, as frequently was the case during Operation
Desert Storm, but also may be weighed in overall terms against campaign objectives.”).
323 United Kingdom, Statement on Ratification of AP I, Jan. 28, 1998, 2020 UNTS 75, 77 (“Re: Article 51 and
Article 57 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.”); Australia, Statement on Ratification of AP I, Jun. 21, 1991, 1642 UNTS 473 (“In relation to paragraph
5(b) of Article 51 and to paragraph 2(a)(iii) of Article 57, it is the understanding of Australia that references to the
‘military advantage’ are intended to mean the advantage anticipated from the military attack considered as a whole
and not only from isolated or particular parts of that attack … .”); Germany, Statement on Ratification of AP I, Feb.
14, 1991, 1607 UNTS 526, 529 (“In applying the rule of proportionality in Article 51 and Article 57, 'military
advantage' is understood to refer to the advantage anticipated from the attack considered as a whole and not only
from isolated or particular parts of the attack.”); Netherlands, Statement on Ratification of AP I, Jun. 26, 1987, 1477
UNTS 300 (“With regard to Article 51, paragraph 5 and Article 57, paragraphs 2 and 3 of Protocol I: It is the
understanding of the Government of the Kingdom of the Netherlands that military advantage refers to the advantage
anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack … .”).
246
5.13 ATTACKS ON FACILITIES, WORKS, OR INSTALLATIONS CONTAINING DANGEROUS FORCES
Certain facilities containing dangerous forces, such as dams, nuclear power plants, or
facilities producing weapons of mass destruction, may constitute military objectives. There may
be a number of reasons for their attack, such as denial of electric power to military sources, use
of a dangerous facility (e.g., by causing release from a dam) to damage or destroy other military
objectives, or to pre-empt enemy release of the dangerous forces to hamper the movement or
advance of U.S. or allied forces.324
Attack of facilities, works, or installations containing dangerous forces, such as dams,
nuclear power plants, or facilities producing weapons of mass destruction, is permissible so long
as it is conducted in accordance with other applicable rules, including the rules of discrimination
and proportionality.325 In light of the increased potential magnitude of incidental harm,
additional precautions, such as weaponeering or timing the attack such that weather conditions
would minimize dispersion of dangerous materials, may be appropriate to reduce the risk that the
release of these dangerous forces may pose to the civilian population.326
5.13.1 AP I Provisions on Works and Installations Containing Dangerous Forces. Article
56 of AP I provides special rules for works and installations containing dangerous forces. For
example, “[w]orks or installations containing dangerous forces, namely dams, dykes and nuclear
electrical generating stations, shall not be made the object of attack, even where these objects are
military objectives, if such attack may cause the release of dangerous forces and consequent
severe losses among the civilian population.” In addition, Article 56 of AP I provides immunity
from attack to combatants and military equipment stationed or placed around works and
installations containing dangerous forces “for the sole purpose of defending the protected
works.”
The United States has objected to this article of AP I.327 In ratifying AP I, other States
have taken reservations from this article.328 Insofar as Article 56 of AP I deviates from the
324 For example, Mark L. Evans and C. Ross Bloodsworth, The Dambusters at Hwachon, NAVAL AVIATION NEWS
22, 23 (May-Jun. 2001) (explaining the military significance of Hwachon Dam during the Korean war by noting that
the enemy’s control of the facility allowed them to “flood the valley and stop further UN advances” or “[i]f they
held back the water by closing the gates, the river would be lowered to fordable depths and enable communist
infiltration across the river against the exposed allied flanks.”).
325 Refer to § 5.6 (Discrimination in Conducting Attacks); § 5.12 (Proportionality in Conducting Attacks).
326 Refer to § 5.11 (Feasible Precautions in Conducting Attacks to Reduce the Risk of Harm to Protected Persons and
Objects).
327 See The Position of the United States on Current Law of War Agreements: Remarks of Judge Abraham D.
Sofaer, Legal Adviser, United States Department of State, Jan. 22, 1987, 2 AMERICAN UNIVERSITY JOURNAL OF
INTERNATIONAL LAW AND POLICY 460, 468 (1987) (“Article 56 of Protocol I is designed to protect dams, dikes, and
nuclear power plants against attacks that could result in ‘severe’ civilian losses. As its negotiating history indicates,
this article would protect objects that would be considered legitimate military objectives under customary
international law. Attacks on such military objectives would be prohibited if ‘severe’ civilian casualties might result
from flooding or release of radiation. The negotiating history throws little light on what level of civilian losses
would be ‘severe.’ It is clear, however, that under this article, civilian losses are not to be balanced against the
military value of the target. If severe losses would result, then the attack is forbidden, no matter how important the
target. It also appears that article 56 forbids any attack that raises the possibility of severe civilian losses, even
though considerable care is taken to avoid them.”).
247
regular application of the distinction and proportionality rules, the U.S. view has been that it does
not reflect customary international law applicable in international and non-international armed
conflicts.
5.14 FEASIBLE PRECAUTIONS TO REDUCE THE RISK OF HARM TO PROTECTED PERSONS AND
OBJECTS BY THE PARTY SUBJECT TO ATTACK
Outside the context of conducting attacks (such as when conducting defense planning or
other military operations), parties to a conflict should also take feasible precautions to reduce the
risk of harm to protected persons and objects from the effects of enemy attacks.329 In particular,
military commanders and other officials responsible for the safety of the civilian populations
must take reasonable steps to separate the civilian population from military objectives and to
protect the civilian population from the effects of combat. As discussed above, what precautions
are feasible depends greatly on the context, including operational considerations.330 Feasible
precautions by the party subject to attack may include the following:
5.14.1 Refraining From Placing Military Objectives in Densely Populated Areas. It may
be appropriate to avoid placing military objectives, such as the armed forces, in urban or other
densely populated areas, in order to reduce the risk of incidental harm to the civilian
population.331
However, it often may not be feasible to refrain from placing military objectives in
densely populated areas. Legitimate military reasons often require locating or billeting military
forces in urban areas or other areas where civilians are present. For example, forces may be
housed in populated areas to take advantage of existing facilities, such as facilities for shelter,
health and sanitation, communications, or power. In some cases, especially during counter-
insurgency operations or in non-international armed conflict generally, the protection of the
328 See, e.g., United Kingdom, Statement on Ratification of AP I, Jan. 28, 1998, 2020 UNTS 75, 78 (“Re. Articles 56
and 85, paragraph 3 (c) The United Kingdom cannot undertake to grant absolute protection to installations which
may contribute to the opposing Party’s war effort, or to the defenders of such installations, but will take all due
precautions in military operations at or near the installations referred to in paragraph 1 of Article 56 in the light of
the known facts, including any special marking which the installation may carry, to avoid severe collateral losses
among civilian populations; direct attacks on such installations will be launched only on authorization at a high level
of command.”); France, Statement on Ratification of AP I, translated in SCHINDLER & TOMAN, THE LAWS OF
ARMED CONFLICTS: A COLLECTION OF CONVENTIONS, RESOLUTIONS, AND OTHER DOCUMENTS 801 (2004) (“The
Government of the French Republic cannot guarantee an absolute protection to the works and installations
containing dangerous forces which may contribute to the opposing Party’s war effort, or to the defenders of such
installations, but will take all precautions referred to the provisions of Article 56, of Article 57, paragraph 2(a)(iii)
and of paragraph 3(c) of Article 85 in order to avoid severe collateral losses among the civilian populations,
including possible direct attacks.”).
329 Consider 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.”).
330 Refer to § 5.3.3.2 (What Precautions Are Feasible).
331 Consider AP I art. 58 (“The Parties to the conflict shall, to the maximum extent feasible: … (b) Avoid locating
military objectives within or near densely populated areas;”).
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civilian population may be increased by placing military forces in densely populated areas to
protect the civilian population from enemy attack and influence.
5.14.2 Removing Civilians and Civilian Objects From the Vicinity of Military
Objectives. It may be appropriate to remove civilians and civilian objects from the vicinity of
military objectives.332 In particular, civilian hospitals should be situated as far as possible from
military objectives.333
The evacuation of civilians from areas likely to be attacked is advisable when there is
immediate danger and where it would be likely to involve less hardship and danger to civilians
than leaving them in place.334
Voluntary removal of civilians may be accomplished through the use of warnings.335
When removing civilians from the vicinity of military objectives, it may be appropriate to
establish safety, hospital, or neutralized zones so that civilians have safe places to move
toward.336
It also may be appropriate to conclude local agreements for the removal of civilians from
besieged or encircled areas.337
During international armed conflict, the forcible transfer or deportation of protected
persons from occupied territory is prohibited.338
5.14.3 Establishing Areas Where Civilians or the Wounded and Sick Are Protected.
Certain zones or localities may be established through the agreement of parties to a conflict to
shelter civilians or wounded and sick combatants from the effects of attacks.339
332 Consider 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;”).
333 Refer to § 7.17.3 (Location of Civilian Hospitals).
334 2004 UK MANUAL ¶5.36.1 (“The evacuation of civilians from areas likely to be attacked is advisable when there
is immediate danger and where it would be likely to involve less hardship and danger to civilians than leaving them
in place.”).
335 Refer to § 5.11.1 (Effective Advance Warning Before an Attack That May Affect the Civilian Population).
336 Refer to § 5.14.3 (Establishing Areas Where Civilians or the Wounded and Sick Are Protected).
337 Refer to § 5.19.2 (Removal and Passage of Certain Personnel - Vulnerable Civilians, Diplomatic and Consular
Personnel, the Wounded and Sick, and Medical Personnel).
338 Refer to § 11.12.3 (Prohibition Against Forcible Transfers and Deportations).
339 For example, SYLVIE-STOYANKA JUNOD, INTERNATIONAL COMMITTEE OF THE RED CROSS, PROTECTION OF THE
VICTIMS OF ARMED CONFLICT FALKLAND-MALVINAS ISLANDS: INTERNATIONAL HUMANITARIAN LAW AND
HUMANITARIAN ACTION (1982) 26 (1984) (“At Britain’s suggestion, and without any special agreement in writing,
the Parties to the conflict established a neutral zone at sea. This zone, called the Red Cross Box, with a diameter of
approximately twenty nautical miles, was located on the high seas to the north of the islands. Without hampering
military operations, it enabled hospital ships to hold position, in particular the UGANDA, and exchange British and
Argentine wounded.”).
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In this context, “locality” means a specific place of limited area, generally containing
buildings, while “zone” means a relatively large area of land and may include one or more
localities.340
5.14.3.1 Civilian Hospital and Safety Zones and Localities. During international
armed conflict, States may establish hospital and safety zones and localities to protect certain
persons from the effects of war, namely, wounded, sick, and aged persons, children under fifteen,
expectant mothers, and mothers of children under seven.341 Parties to a conflict may conclude
agreements on the mutual recognition of the hospital zones and localities they have created,
drawing upon model agreements that are annexed to the 1949 Geneva Conventions.342 The
establishment of a zone only binds an adverse party when it agrees to recognize the zone.343
These zones and localities may be combined with hospital zones established for the wounded and
sick of the armed forces.344
Protecting Powers and the ICRC may seek to facilitate the institution and recognition of
civilian hospital and safety zones and localities.345
5.14.3.2 Military Hospital Zones and Localities. States may establish in their
own territory, and if the need arises, in occupied areas, hospital zones and localities so organized
as to protect the wounded and sick (as defined in the GWS346) from the effects of war, as well as
340 GC COMMENTARY 120-21 (“Locality should be taken to mean a specific place of limited area, generally
containing buildings. The term zone is used to describe a relatively large area of land and may include one or more
localities.”).
341 GC art. 14 (“In time of peace, the High Contracting Parties and, after the outbreak of hostilities, the Parties
thereto, may establish in their own territory and, if the need arises, in occupied areas, hospital and safety zones and
localities so organized as to protect from the effects of war, wounded, sick and aged persons, children under fifteen,
expectant mothers and mothers of children under seven.”).
342 GC art. 14 (“Upon the outbreak and during the course of hostilities, the Parties concerned may conclude
agreements on mutual recognition of the zones and localities they have created. They may for this purpose
implement the provisions of the Draft Agreement annexed to the present Convention, with such amendments as they
may consider necessary.”).
343 GC COMMENTARY 127 (“The zones will not, strictly speaking, have any legal existence, or enjoy protection
under the Convention, until such time as they have been recognized by the adverse Party. This will entail the
conclusion of an agreement between the Power which has established zones in its territory and the Powers with
which it is at war. It is only an agreement of this kind, concluded, as a general rule, after the outbreak of hostilities,
which gives legal form to the obligation on States which have accorded recognition to zones to respect those zones.
An agreement recognizing the zones is thus a sine qua non of their legal existence from the international point of
view. It should contain all the provisions, particularly in regard to control procedure, required to prevent disputes
arising later in regard to its interpretation.”).
344 GC COMMENTARY 125 (“As has already been pointed out, the provisions relating to hospital and safety zones in
the First and Fourth Geneva Conventions are sufficiently flexible to make various combinations possible. There is,
for instance, no reason why a hospital zone should not combine the two types and provide shelter for both soldiers
and civilians in need of treatment, since once a soldier is wounded or sick, he may be said to be no longer a
combatant on either side, but simply a suffering, inoffensive human being.”).
345 GC art. 14 (“The Protecting Powers and the International Committee of the Red Cross are invited to lend their
good offices in order to facilitate the institution and recognition of these hospital and safety zones and localities.”).
346 Refer to § 7.3.2 (Persons Entitled to Protection as Wounded, Sick, or Shipwrecked Under the GWS and GWS-
Sea).
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the personnel entrusted with the organization and administration of these zones and localities and
with the care of the persons assembled within them.347
5.14.3.3 Neutralized Zones. It may be appropriate to conclude agreements with
opposing forces to establish neutralized zones in regions where fighting is taking place.348
Neutralized zones differ from civilian hospital and safety zones in that they are intended to
protect a broader group of persons and in that they are generally established on a temporary basis
in regions where fighting is taking place.349
These neutralized zones are to shelter: (a) wounded and sick combatants or
noncombatants; and (b) civilian persons who take no part in hostilities, and who, while they
reside in the zones, perform no work of a military character.350
Agreements should be made in writing, signed by representatives of the parties to the
conflict, and should establish:
(a) the location of the zone; (b) the administration of the zone; (c)
the food supply of the zone; (d) the supervision of the zone; and (e) the beginning and duration
of the neutralization of the zone.351
5.14.4 Using Distinctive and Visible Signs to Identify Protected Persons and Objects as
Such. It may be appropriate to identify protected persons and objects, as such, through the use of
347 GWS art. 23 (“In time of peace, the High Contracting Parties and, after the outbreak of hostilities, the Parties
thereto, may establish in their own territory and, if the need arises, in occupied areas, hospital zones and localities so
organized as to protect the wounded and sick from the effects of war, as well as the personnel entrusted with the
organization and administration of these zones and localities and with the care of the persons therein assembled.”).
348 For example, 2004 UK MANUAL ¶5.40.1 footnote 258 (“During the Falklands conflict of 1982, a neutralized zone
was set up in the centre of Port Stanley, comprising the cathedral and a clearly defined area around it. This was
done at the suggestion of the ICRC representative and with the consent of the Argentine and British authorities.”);
SPAIGHT, AIR POWER AND WAR RIGHTS 256 (“With the consent of both the Chinese and Japanese military
authorities a district known as Nantao, lying between the French concession and a densely populated part of the old
Chinese city, was selected and cleared of all troops, munition factories and other military establishments, and its
boundaries were marked by flags. … ‘The outstanding success of this scheme at Shanghai … led very quickly to the
adoption of similar arrangements at Hankow and other great Chinese cities that were liable to bombardment, and it
may be accepted that the lives of tens, if not of hundreds, of thousands of hapless Chinese have thus been saved.’”).
349 GC COMMENTARY 129 (“[N]eutralized zones differ from hospital and safety zones in that they are established in
the actual regions where fighting is taking place and are intended to give shelter to both civilian and military
wounded and sick, as well as all civilian persons who take no part in hostilities. Furthermore, they are generally set
up on a temporary basis to meet the tactical situation at a particular moment, whereas hospital and safety zones tend
to be more permanent in character.”).
350 GC art. 15 (“Any Party to the conflict may, either direct or through a neutral State or some humanitarian
organization, propose to the adverse Party to establish, in the regions where fighting is taking place, neutralized
zones intended to shelter from the effects of war the following persons, without distinction: (a) wounded and sick
combatants or non-combatants; (b) civilian persons who take no part in hostilities, and who, while they reside in the
zones, perform no work of a military character.”).
351 GC art. 15 (“When the Parties concerned have agreed upon the geographical position, administration, food
supply and supervision of the proposed neutralized zone, a written agreement shall be concluded and signed by the
representatives of the Parties to the conflict. The agreement shall fix the beginning and the duration of the
neutralization of the zone.”).
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distinctive and visible signs. For example, it may be appropriate to identify civilian hospitals352
or civilian air raid shelters in order to facilitate their protection during enemy bombardment.353
Signs indicating civilian objects, as such, should be notified to the opposing party so that the
opposing party knows to refrain from bombarding places or buildings bearing these signs.
Where enemy forces seek to make peaceful civilians the object of attack, then it would
not be appropriate to distinguish civilian objects. Such precautions would not be feasible
because they would not be expected to yield a humanitarian benefit.354
5.14.5 Carrying Arms Openly and Wearing of Distinctive Emblems by the Armed Forces
to Distinguish Themselves From the Civilian Population. Although the practices of carrying
arms openly and wearing uniforms and distinctive emblems by armed forces predates
contemporary doctrines of feasible precautions, these practices may be viewed as feasible
precautions that help protect the civilian population from being erroneously made the object of
attack.355
This requirement of armed forces to wear distinctive emblems has been understood as a
requirement for the armed forces as a group.356 However, it applies, to some extent, on an
individual basis in the context of liability for spying or sabotage.357 The obligation of armed
forces to distinguish themselves includes, but is not limited to, those times when they conduct
attacks.358 However, the requirement to wear distinctive emblems is not an absolute one, even
during combat.359
352 Refer to § 7.17.2.2 (Markings of Civilian Hospitals With the Distinctive Emblem).
353 See, e.g., HAGUE IV REG art. 27 (“In sieges and bombardments all necessary steps must be taken to spare, as far
as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and
places where the sick and wounded are collected, provided they are not being used at the time for military purposes.
It is the duty of the besieged to indicate the presence of such buildings or places by distinctive and visible signs,
which shall be notified to the enemy beforehand.”); HAGUE IX art. 5 (“In bombardments by naval forces all the
necessary measures must be taken by the commander to spare as far as possible sacred edifices, buildings used for
artistic, scientific, or charitable purposes, historic monuments, hospitals, and places where the sick or wounded are
collected, on the understanding that they are not used at the same time for military purposes. It is the duty of the
inhabitants to indicate such monuments, edifices, or places by visible signs, which shall consist of large stiff
rectangular panels divided diagonally into two coloured triangular portions, the upper portion black, the lower
portion white.”).
354 Refer to § 5.3.3.2 (What Precautions Are Feasible).
355 Refer to § 4.6.4 (Having a Fixed Distinctive Sign Recognizable at a Distance); § 4.6.5 (Carrying Arms Openly).
356 Refer to § 4.6.1.1 (GPW 4A(2) Conditions Required on a Group Basis).
357 Refer to § 4.17 (Spies, Saboteurs, and Other Persons Engaging in Similar Acts Behind Enemy Lines).
358 Refer to § 5.5.8 (Obligation of Combatants to Distinguish Themselves When Conducting Attacks).
359 Refer to § 5.5.8.1 (Fighting Out of Uniform).
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5.15 UNDEFENDED CITIES, TOWNS, AND VILLAGES
Attack, by whatever means, of a village, town, or city that is undefended is prohibited.360
Undefended villages, towns, or cities may, however, be captured.
5.15.1 “Undefended” - Notes on Terminology. The term undefended city (or town or
village, or any other populated area) is a term of art in the law of war and should not be confused
with a place that simply lacks defensive capabilities. Historically, open or undefended status for
a town, village, or city would be sought as opposing military forces approached and the military
forces previously controlling the city abandoned it.361 Undefended or open status would
essentially surrender the city to the opposing force; this minimized injury to the inhabitants and
damage to civilian objects within the city because the city could be occupied without resistance
or bypassed.362
5.15.1.1 Non-defended Versus Undefended. Article 59 of AP I uses the term
“non-defended” rather than “undefended,” but uses essentially the same criteria as FM 27-10’s
discussion of “undefended” places within the meaning of Article 25 of the Hague IV
Regulations. The change from “undefended” in the Hague IV Regulations and Hague IX, to
“non-defended” in AP I, appears to reflect a difference in translation from French to English
rather than a substantive difference.
The original text of the Hague IV Regulations and Hague IX is French.363 In the French
versions of the text, both the Hague IV Regulations and Hague IX use a dependent clause “that
360 See HAGUE IV REG. art. 25 (“The attack or bombardment, by whatever means, of towns, villages, dwellings, or
buildings which are undefended is prohibited.”); HAGUE IX art. 1 (“The bombardment by naval forces of
undefended ports, towns, villages, dwellings, or buildings is forbidden.”). Consider AP I art. 59(1) (“It is prohibited
for the Parties to the conflict to attack, by any means whatsoever, non-defended localities.”).
361 For example, H. Wayne Elliot, Open Cities and (Un)defended Places, THE ARMY LAWYER 39, 41 (Apr. 1995)
(“When the military forces had abandoned the city, the city’s civic leaders normally had the burden of meeting with
the opposing commander and informing him that the city was open. Accordingly, the mayor of Columbia, South
Carolina, went to the Union lines as General Sherman approached the city and informed him that the Confederate
forces had left and that the city was open for the Union army’s entry. When the Confederate government was forced
to abandon Richmond, Virginia, the mayor met the advancing Union forces and informed General Grant’s
commanders that the city was open. Once the capturing forces entered the city, they were obligated to refrain from
looting and pillaging and were responsible for the safety of the city’s residents. Nonetheless, war materials still in
the city could be destroyed.”).
362 H. Wayne Elliot, Open Cities and (Un)defended Places, THE ARMY LAWYER 39, 41 (Apr. 1995) (“Surrender
usually meant the complete submission of the military forces defending an area to the enemy. However, when the
opposing military forces simply abandoned the city, the city was considered to be undefended and ‘open.’ That is,
the attacking force could enter the city at will and without fear of attack. Under these circumstances destroying the
entire city was unnecessary, although individual military targets in the city might be destroyed, either before or after
entry.”).
363 William H. Taft, Proclamation Regarding the Hague IX, Feb. 28, 1910, 36 STAT. 2351 (“Whereas a Convention
concerning bombardment by naval forces in time of war was concluded … the original of which Convention, being
in the French language, is word for word as follows:”); William H. Taft, Proclamation Regarding the Hague IV,
Feb. 28, 1910, 36 STAT. 2277 (“Whereas a Convention respecting the laws and customs of war on land was
concluded … the original of which Convention, being in the French language, is word for word as follows:”).
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