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Commentary - Precautions in attack
    [p.677] Article 57 -- Precautions in attack


    [p.678] 2184 This article was a subject that required lengthy discussions and difficult negotiations in the Diplomatic Conference, and the text which was finally agreed upon is the fruit of laborious compromise between the various points of view.

    2185 In the first place, it will be noted that no distinction is made here between various situations that may occur. In the early stages of the discussions on the codification of the law of bombardments, the possibility had been entertained of expressly providing the standard of precision required for bombardments on towns and cities which were not closely linked with military operations on land or at sea (i.e., those well behind the lines), as it was feared that the general rule of bombardments of reducing incidental loss to a minimum was insufficient for this particular situation. (1)

    [p.679] 2186 During the ' travaux préparatoires ' the differences of opinion were such that the ICRC had to present a draft containing two alternative solutions for the steps to be taken for the identification of objectives. (2)

    2187 The differences of opinion were mainly related to the very heavy burden of responsibility imposed by this article on military commanders, particularly as the various provisions are relatively imprecise and are open to a fairly broad margin of judgment. These concerns were reinforced by the fact that, according to Article 85 ' (Repression of breaches of this Protocol), ' failure to comply with the rules of Article 57 may constitute a grave breach and may be prosecuted as such. Those who favoured a greater degree of precision argued that in the field of penal law it is necessary to be precise, so that anyone violating the provisions would know that he was committing a grave breach. As we will see below, several delegations considered that this condition was not met and that the article was dangerously imprecise. (3)

    2188 Two delegations argued that in their opinion Article 57 imposed stricter precautions on the aggressor than on the victim of aggression. (4) Without even dwelling on the difficulty of how to impartially designate an aggressor, there is no doubt that such a view is contrary to the wording of this article and to the general principles underlying the Protocol (Article 1 -- ' General principles and scope of application '). Moreover, the last paragraph of the Preamble specifies that the provisions of the Protocol apply to the persons concerned, without any adverse distinction based on the nature or origin of the armed conflict, or on the causes espoused by or attributed to the Parties to the conflict. On the level of the ' jus in bello, ' Article 49 ' (Definition of attacks and scope of application) ' defines attacks as covering both offensive and defensive acts, i.e., all combat activity. All these considerations mean that Article 57 applies to all attacks, whether they are acts of aggression or a response to aggression. The fact that a Party considers itself to be the victim of aggression does not exempt it from any of the precautions to be taken in pursuance of this article. Obviously this does not prejudge in any way the responsibility which may be incurred, at a completely different level, for having committed an act of aggression.

    2189 Finally, it should be noted that to some extent Article 57 reaffirms rules which are already contained explicitly or implicitly in other articles, in particular: Article 48 ' (Basic rule), ' which lays down the "basic rule" of distinction, Article 51 ' (Protection of the civilian population), ' which reiterates the general immunity enjoyed by the civilian population and prohibits indiscriminate attacks, Article 52 ' (General protection of civilian objects), ' which restricts attacks to military objectives and defines these, and Article 54 ' (Protection of objects indispensable to the survival of the civilian population), ' which protects indispensable objects. We refer to the commentary on these articles.

    2190 It is clear that the precautions prescribed here will be of greatest importance in urban areas because such areas are most densely populated.

    [p.680] Paragraph 1

    2191 This is a general principle which imposes an important duty on belligerents with respect to civilian populations. This provision appropriately supplements the basic rule of Article 48 ' (Basic rule), ' which urges Parties to the conflict to always distinguish between the civilian population and combatants, as well as between civilian objects and military objectives. It is quite clear that by respecting this obligation the Parties to the conflict will spare the civilian population, civilians and civilian objects. Even though this is only an enunciation of a general principle which is already recognized in customary law, it is good that it is included at the beginning of this article in black and white, as the other paragraphs are devoted to the practical application of this principle. The term "military operations" should be understood to mean any movements, manoeuvres and other activities whatsoever carried out by the armed forces with a view to combat.

    Paragraph 2

    ' Sub-paragraph (a) (i) '

    2192 This sub-paragraph is devoted to the identification of military objectives which a Party wishes to attack.

    2193 The history of the Second World War and subsequent conflicts contains numerous cases of attacks which were launched in error against non-military objectives, or against objectives whose destruction produced only an insufficient military advantage compared with the losses inflicted on civilians.

    2194 The requirement of a precise identification of objectives should be especially welcomed, as the effective implementation of the safeguard principles expressed in the Protocol largely depends on this. The examination should not only relate to the exact nature of any military objectives and civilian objects, but it should also be verified, as provided in the text, whether or not the objects concerned are subject to special protection, and in particular whether they are cultural objects or places of worship (Article 53 -- ' Protection of cultural objects and of places of worship '), works and installations containing dangerous forces (Article 56 -- ' Protection of works and installations containing dangerous forces '), or of course whether they are medical units (Article 12 -- ' Protection of medical units ').

    2195 Thus the identification of the objective, particularly when it is located at a great distance, should be carried out with great care. Admittedly, those who plan or decide upon such an attack will base their decision on information given them, and they cannot be expected to have personal knowledge of the objective to be attacked and of its exact nature. However, this does not detract from their responsibility, and in case of doubt, even if there is only slight doubt, they must call for additional information and if need be give orders for further reconnaissance to those of their subordinates and those responsible for supportive weapons (particularly artillery and airforce) whose business this is, and who are answerable to them. In the case of long-distance attacks, information will be obtained in particular from aerial reconnaissance and from intelligence units, which will of [p.681] course attempt to gather information about enemy military objectives by various means. The evaluation of the information obtained must include a serious check of its accuracy, particularly as there is nothing to prevent the enemy from setting up fake military objectives or camouflaging the true ones. In fact it is clear that no responsible military commander would wish to attack objectives which were of no military interest. In this respect humanitarian interests and military interests coincide.

    2196 In close combat on land the evaluation of the nature of objectives will be based, in addition, on more direct information: the commanding officer ordering an attack will generally have information supplied by his own troops who are in direct contact with the enemy, and his task will therefore be much easier. In general, the presence of enemy troops in buildings, structures or installations will make an attack against them legitimate, subject to any further precautions prescribed under (ii) and (iii), and to any special protection to which such buildings, structures or installations may be entitled. It is clear that a belligerent who accommodates troops in purely civilian buildings, for example, in dwellings or schools, or who uses such buildings as a base for combat, exposes them and the civilians present there to serious danger: even if attacks are directed only against members of the armed forces, it is probable that they will result in significant damage to the buildings.

    2197 The terminology used in this provision led to some criticism and explanatory statements. Some considered that the introductory words ("those who plan or decide upon an attack") could lay a heavy burden of responsibility on subordinate officers who are not always capable of taking such decisions, which should really fall upon higher ranking officers. (5) This view is not without grounds, but it is clear that a very large majority of delegations at the Diplomatic Conference wished to cover all situations with a single provision, including those which may arise during close combat where commanding officers, even those of subordinate rank, may have to take very serious decisions regarding the fate of the civilian population and civilian objects. It clearly follows that the high command of an army has the duty to instruct personnel adequately so that the latter, even if of low rank, can act correctly in the situations envisaged.

    2198 The words "everything feasible" were discussed at length. (6) When the article was adopted some delegations stated that they understood these words to mean everything that was practicable or practically possible, taking into account all the circumstances at the time of the attack, including those relevant to the success of [p.682] military operations. (7) The last-mentioned criterion seems to be too broad, having regard to the requirements of this article. There might be reason to fear that by invoking the success of military operations in general, one might end up by neglecting the humanitarian obligations prescribed here. Once again the interpretation will be a matter of common sense and good faith. What is required of the person launching an offensive is to take the necessary identification measures in good time in order to spare the population as far as possible. It is not clear how the success of military operations could be jeopardized by this.

    2199 Finally, one delegation remarked that the identification of objectives depended to a large extent on the technical means of detection available to the belligerents. (8) This remark seems to be correct. For example, some belligerents might have information owing to a modern reconnaissance device, while other belligerents might not have this type of equipment. (9)

    ' Sub-paragraph (a)(ii) '

    2200 This sub-paragraph deals with the choice of means and methods of attack to be used so as to prevent loss or damage to the population. As regards weapons, their precision and range should be taken into account; such precautions coincide with the concerns of military commanders wishing to economise on ammunition and to avoid hitting points of no military interest. When a well-placed 500 kg projectile is sufficient to render a military objective useless, there is no reason to use a 10 ton bomb or a series of projectiles aimed without sufficient precision. However, it is clear that the circumstances of combat and the control of airspace may render it more difficult to observe this rule. Finally, mention may be made of the precautionary measures taken by the Allied forces during bombardments carried out during the Second World War against factories located in territories occupied by German forces; in order to avoid hitting the people working in these factories, the attacks took place on days or at times when the factories were empty; the desired effect was to destroy the factories without killing the workers.

    2201 In itself this rule does not imply any prohibition of specific weapons. During the ' travaux préparatoires ' two specific issues were brought up: some proposed that the Parties to the conflict should be obliged to draw up maps of ' minefields, ' so that they could be communicated to any authority responsible for the safety of the population when hostilities ceased; it was also proposed that Parties to the conflict should fit weapons which are particularly dangerous to the population with safety devices to render them harmless if they fell out of the control of the user.

    [p.683] 2202 The problem of mines, booby-traps and other devices later became the object of Protocol II, annexed to the Convention of 10 October 1980 on Prohibitions or Restrictions on the Use of Certain Conventional Weapons. (10) That Protocol gives a definition of the expression "feasible precautions". (11)

    2203 Finally, a remark on drafting: to avoid all ambiguity it would have been better to say "with a view to reducing incidental loss [...] to a minimum".

    ' Sub-paragraph (a) (iii) '

    2204 The rule of proportionality is laid down in this sub-paragraph. During the Diplomatic Conference this gave rise to lengthy discussions and negotiations between the delegations. The wording which was adopted is very similar to the proposal suggested in the 1973 draft: "not disportionate to the direct and substantial military advantage anticipated".

    2205 The concept of proportionality occurs twice in Article 57 : in the sub-paragraph under consideration here and in sub-paragraph (b) following it. However, it is also found in Article 51 ' (Protection of the civilian population), ' paragraph 5(b). It occurs again in Protocol II (Article 3 , paragraph 3(c)) annexed to the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons, with regard to land mines laid outside military zones. In these four cases the wording used is deliberately identical.

    2206 The entire law of armed conflict is, of course, the result of an equitable balance between the necessities of war and humanitarian requirements. There is no implicit clause in the Conventions which would give priority to military requirements. The principles of the Conventions are precisely aimed at determining where the limits lie; the principle of proportionality contributes to this.

    2207 This article, like Article 51 ' (Protection of the civilian population), ' is not concerned with strategic objectives but with the means to be used in a specific tactical operation. In this context proportionality is not quite at the same level as the fundamental principles governing the matter. It appears in a secondary or subsidiary role in Article 51 ' (Protection of the civilian population) ' as a type of indiscriminate attack, and in Article 57 , in the context of precautionary measures. It cannot therefore destroy the structure of the system, nor cast doubt upon the fundamental principles of humanitarian law. The principle of proportionality merely contributes to the clarification of matters, though it is true that this is important. Thus an attack cannot be justified only on grounds of proportionality if it contravenes the above-mentioned principles.

    2208 Even if this system is based to some extent on a subjective evaluation, the interpretation must above all be a question of common sense and good faith for [p.684] military commanders. In every attack they must carefully weigh up the humanitarian and military interests at stake.

    2209 However, let us return to a systematic commentary on this paragraph. The terminology used in this provision gave rise to some differences of opinion. Some would have preferred the words "which risks causing" rather than "which may be expected to cause". Committee III adopted the present wording. The expression "concrete and direct" was intended to show that the advantage concerned should be substantial and relatively close, and that advantages which are hardly perceptible and those which would only appear in the long term should be disregarded.

    2210 Despite these clarifications, the provision allows for a fairly broad margin of judgment, as stated above; several delegations regretfully stressed this fact. In contrast, other delegations commended the fact that in future military commanders would have a universally recognized guideline as regards their responsibilities to the civilian population during attacks against military objectives. (12)

    2211 Some delegates proposed deleting the words "which would be excessive in relation to the concrete and direct military advantage anticipated", but Committee III decided to retain them. (13)

    2212 Proportionality is concerned with incidental effects which attacks may have on persons and objects, as appears from the reference to "incidental loss". The danger incurred by the civilian population and civilian objects depends on various factors: their location (possibly within or in the vicinity of a military objective), the terrain (landslides, floods etc.), accuracy of the weapons used (greater or lesser dispersion, depending on the trajectory, the range, the ammunition used etc.), weather conditions (visibility, wind etc.), the specific nature of the military objectives concerned (ammunition depots, fuel reservoirs, main roads of military importance at or in the vicinity of inhabited areas etc.), technical skill of the combatants (random dropping of bombs when unable to hit the intended target). (14)

    2213 All these factors together must be taken into consideration whenever an attack could hit incidentally civilian persons and objects. Some cases will be clear-cut and the decision easy to take. For example, the presence of a soldier on leave obviously cannot justify the destruction of a village.

    2214 Conversely, if the destruction of a bridge is of paramount importance for the occupation or non-occupation of a strategic zone, it is understood that some houses may be hit, but not that a whole urban area be levelled.

    2215 Other more complex situations may pose difficult problems for those responsible. The golden rule to be followed in such cases is that contained in the first paragraph, i.e., the duty to spare civilians and civilian objects in the conduct of military operations.

    [p.685] 2216 Article 85 ' (Repression of breaches of this Protocol) ' provides that a violation of Article 51 ' (Protection of the civilian population) ' and of paragraph 2(a)(iii) of Article 57 here being considered is a grave breach, i.e., a war crime which may carry severe punishment. It provides for the punishment of those who wilfully launch an indiscriminate attack gravely affecting the civilian population in the knowledge that such attack will cause loss of life, injury to civilians or damage to civilian objects, when such loss, injury or damage is excessive in the sense of this provision. The same reference is made with regard to any attacks launched against works or installations containing dangerous forces, even if these become military objectives; these attacks are qualified as grave breaches when they are launched intentionally in the knowledge that they will cause loss of life, injury to civilians or damage to civilian objects excessive in the sense of this provision, and when they actually do serious harm to the civilian population.

    2217 During the final adoption of the article the words "in relation to the concrete and direct military advantage anticipated" were made the object of interpretative statements in which several delegations gave there view of the expression's meaning. (15)

    2218 These statements, which all have the same tenor, seem redundant; it goes without saying that an attack carried out in a concerted manner in numerous places can only be judged in its entirety. However, this does not mean that during such an attack actions may be undertaken which would lead to severe losses among the civilian population or to extensive destruction of civilian objects. Nor does it mean that several clearly distinct military objectives within an urban area may be considered as a single objective. This would be contrary to Article 51 ' (Protection of the civilian population), ' paragraph 4(a). Moreover, even in a general attack the advantage anticipated must be a military advantage and it must be concrete and direct; there can be no question of creating conditions conducive to surrender by means of attacks which incidentally harm the civilian population. A military advantage can only consist in ground gained and in annihilating or weakening the enemy armed forces. In addition, it should be noted that the words "concrete and direct" impose stricter conditions on the attacker than those implied by the criteria defining military objectives in Article 52 ' (General protection of civilian objects), ' paragraph 2.

    2219 In conclusion, this rule, such as it is, is aimed at establishing an equitable balance between humanitarian requirements and the sad necessities of war. It is by no means as clear as it might have been, but in the circumstances it seems a reasonable compromise between conflicting interests and a praiseworthy attempt to impose some restrictions in the domain where arbitrary behaviour has existed too often.

    [p.686] ' Sub-paragraph (b) '

    2220 The rule set out here, relating to the cancellation or suspension of attacks, applies not only to those planning or deciding upon attacks, but also and primarily, to those executing them. The text is sufficiently clear for lengthy comment to be superfluous. For the meaning of the words "concrete and direct military advantage anticipated" reference may be made to what was said in respect of sub-paragraph (a)(iii). As regards military objectives, they are defined in Article 52 ' (General protection of civilian objects), ' paragraph 2. (16) As regards the concept of proportionality, reference is made to the commentary on subparagraph (a)(iii).

    2221 It is principally by visual means -- in particular, by means of aerial observation -- that an attacker will find out that an intended objective is not a military objective, or that it is an object entitled to special protection. Thus, to take a simple example, an airman who has received the order to machine-gun troops travelling along a road, and who finds only children going to school, must abstain from attack. However, with the increased range of weapons, particularly in military operations on land, it may happen that the attacker has no direct view of the objective, either because it is very far away, or because the attack takes place at night. In this case, even greater caution is required.

    ' Sub-paragraph (c) '

    2222 This contains the rule about prior warning in case of attacks. Article 26 of the 1907 Hague Regulations already required that the officer in command of an attacking force should, "before commencing a bombardment, except in cases of assault, do all in his power to warn the authorities". There have been many examples of such warnings in the past; towns subject to attack were frequently declared open cities; in other cases, the population was evacuated.

    2223 In the case of bombardment by long-distance projectiles or bombs dropped from aircraft, giving warning may be inconvenient when the element of surprise in the attack is a condition of its success. For this reason the rule allows for derogation: "unless circumstances do not permit". Committee III had two proposals. The one now in sub-paragraph (c) was adopted by majority, but other delegations would have preferred the expression "whenever circumstances permit", or even no derogation. (17)

    2224 During the Second World War, particularly in the case of objectives situated in occupied territory, warnings were made by radio or by means of pamphlets; there were also cases in which aircraft flew very low over the objective, giving civilians, workers or just townspeople, time to leave. Of course the possibility of giving such warning depends to a large extent on who has air control and on [p.687] what air defences there are. An example was given during the Diplomatic Conference. (18)

    2225 Warnings may also have a general character. A belligerent could, for example, give notice by radio that he will attack certain types of installations or factories. A warning could also contain a list of the objectives that will be attacked. Even though ruses of war are not prohibited in this field, they would be unacceptable if they were to deceive the population and nullify the proper function of warnings, which is to give civilians the chance to protect themselves.

    Paragraph 3

    2226 This rule, described "as the lesser of two evils", was already in the Draft Rules of 1956 (Article 8(a), paragraph 2). It was included in the 1973 draft and the Conference accepted it without much discussion. It is in accordance with the actual practices of belligerents in certain cases, particularly with respect to occupied allied countries.

    2227 In this field mention could be made of attacks launched against enemy road and rail traffic; some belligerents have tried to attack the adversary only when this would not result in severe damage for the population. Instead of attacking railway stations, which are usually located in towns, the railway lines were hit at crucial points, but away from inhabited areas; the same action was taken with respect to roads.

    2228 Such examples show that it is possible to choose objectives so that their destruction does not imperil the population and civilian objects, while still gaining the same military advantage. There is no doubt with regard to economic target of military importance, that it is possible to attack only certain parts the destruction of which will result in paralyzing the whole structure.

    Paragraph 4

    2229 This rule was not in the ICRC draft or in the various amendments presented during the Diplomatic Conference. It appeared for the first time in a report of the Working Group of Committee III. (19)

    2230 The provisions of this Section apply to any attack from the sea or from the air, directed against objectives on land. This is set out in paragraph 3 of Article 49 ' (Definition of attacks and scope of application). ' Therefore that is not what is meant here. This provision is more concerned with the effects on the civilian [p.688] population and civilian objects of military operations at sea or in the air. It is regrettable that in the debates during the Conference no practical examples were given. However, one could conceive that hostilities between adverse fleets could endanger the civilian population, with or without the intervention of the airforce, because missiles could miss their target or civilian ships or aircraft could get mixed up in the battle. Similarly, fighting between adverse military aircraft could have incidental repercussions on the civilian population -- for example, when a crippled aircraft crashes. It should be noted that "all reasonable precautions" must be taken, which is undoubtedly slightly different from and a little less far-reaching than the expression "take all feasible precautions", used in paragraph 2. As the nuance is tenuous, the purpose of the provision appears to be to reaffirm the rules that exist to protect civilians in such situations.

    2231 As regards the rules of international law applicable in armed conflict, these are defined in Article 2 of the Protocol ' (Definitions), ' sub-paragraph (b).

    2232 The rules of international law governing war at sea are rather uncertain. Hague Convention VIII of 1907 Relative to the Laying of Automatic Submarine Contact Mines had laid down a number of provisions, and the London Procès-Verbal of 1936, was mainly aimed at laying down certain restrictions on submarine warfare. The international military tribunal which sat at Nuremberg examined the application of the provisions of that Procès-verbal, taking into account the attitude adopted by the allied naval forces, but it remains uncertain to what extent these provisions have binding force. The same doubt continues to exist with regard to mines on the high seas.

    2233 On the other hand, no one can doubt the rules concerning the shipwrecked, hospital ships and coastal rescue craft. These were first expressed in Hague Convention III of 1899 for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of August 22, 1864. This Convention was revised in 1907 (Xth Convention), and in 1949 it became the Second Geneva Convention. Finally, this Protocol has developed the rules relative to hospital ships and coastal rescue craft in Articles 22 ' (Hospital ships and coastal rescue craft) ' and 23 ' (Other medical ships and craft). ' Mention should be made in particular of the fact that the provisions on protection are extended to cover civilian wounded, sick and shipwrecked.

    2234 As regards air warfare, this has not so far been regulated in a special instrument, as has war on land and to some extent, war at sea. (20) However, reference could be made to the Rules of Aerial Warfare drafted by a commission of jurists convened at The Hague in 1922 to 1923. Although these Rules did not take the form of a treaty binding upon States, some of them are of importance as an expression of customary law. They contain some interesting definitions and deal in particular with the identification of aircraft, overflight of foreign countries, aerial bombardment, protection of civilians and certain buildings, the powers of military authorities over enemy aircraft, and the right of visit, search and capture by these authorities.

    [p.689] 2235 Since then some usages have become established but which do not necessarily have the binding nature of customary law. Thus, for example, it is customary for an aircraft to be equipped with an emblem showing the nationality of the armed forces to which it belongs. The usefulness of this rule is doubtful in a time when modern aircraft fly at supersonic speeds. Recognizing to which Party an aircraft belongs is hardly ever done visually, but usually by wireless transmission systems, particularly the "friend or foe" system. Another usage is for crippled aircraft wishing to make an emergency landing on an enemy airfield to show their intention by tipping their wings or lowering their landing-gear. However, the enormous speed of modern aircraft renders such practices problematic.

    2236 According to another customary practice, members of the crew of a crippled aircraft parachuting out to save themselves, should not be attacked. This is incorporated in Article 42 of this Protocol ' (Occupants of aircraft). '

    2237 On the other hand, medical aircraft were made the object of provisions relating to their protection in the Geneva Convention of 27 July 1929. However, these rules, which were revised and developed in 1949, did not allow for such aircraft to fly in conditions of sufficient security. Fortunately this Protocol has now improved the situation; in fact, Articles 24 -31 make it possible for medical aircraft to fly over areas under the control of their own forces without the necessity of resorting to prior notification and receiving the agreement of the adverse Party, which had up to then, according to one medical officer, "nailed" medical aviation to the ground. The reader is referred to the commentary on these articles. As medical aircraft may carry wounded and sick civilians as well as military wounded and sick, their activities will in future be of direct concern to the population at large, particularly as medical aircraft may henceforth be civilian aircraft.

    Paragraph 5

    2238 This paragraph, possibly self-evident, is a confirmation. The law relating to the conduct of hostilities is primarily a law of prohibition: it does not authorize, but prohibits certain things. However, in view of the wording of some of the provisions of this article which take into account military necessity, it is understandable that the Diplomatic Conference wished to stress that these provisions may not be construed so as to a justify attacks against the civilian population.

    ' C.P./J.P. '


    NOTES

    (1) [(1) p.678] See, for example, ' Draft Rules, ' 1956, Art. 9, para. 2, and ' ICRC Memorandum, ' May 1967;

    (2) [(2) p.679] Draft, Art. 50;

    (3) [(3) p.679] O.R. VI, pp. 219 and 230, CDDH/SR.42, Annex (Afghanistan, Italy);

    (4) [(4) p.679] Ibid., pp.232 and 236 (Madagascar, Romania);

    (5) [(5) p.681] O.R. VI, p. 212, CDDH/SR.42, paras. 43 and 46. Switzerland made a reservation to Article 57, para. 2, according to which this provision only creates obligations for commanding officers at the level of batallion or group or above;

    (6) [(6) p.681] In the draft the ICRC had used the expression "take all reasonable steps". This wording was not retained by the Diplomatic Conference, which opted for the words "everything feasible". The translation of "feasible" into French by "possible" did not seem satisfactory, even though this is one meaning of the English term. According to the Oxford Dictionary, feasible means "capable of being done, accomplished or carried out, possible, practicable". Finally agreement was reached on the present French text "tout ce qui est pratiquement possible" which seems to translate the intent of the drafters of the English version;

    (7) [(7) p.682] O.R. VI, pp. 226 ff., CDDH/SR.42, Annex (ad Art. 50);

    (8) [(8) p.682] Ibid., p. 228 (India);

    (9) [(9) p.682] Austria made a reservation to Article 57, para. 2, according to which this provision will be applied, provided that the information actually available at the time of the decision is decisive. Switzerland made a similar reservation;

    (10) [(10) p.683] On this Convention and its Protocols, cf. commentary Art. 35, supra, p. 402;

    (11) [(11) p.683] Art. 3 -- General restrictions of the use of mines, booby-traps and other devices, para. 4, second sentence: "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.";

    (12) [(12) p.684] O.R. VI, pp. 211 ff., CDDH/SR.42;

    (13) [(13) p.684] O.R. XIV,p.303, CDDH/III/SR.31, para. 31;

    (14) [(14) p.684] In his book, ' Fighter -- The True Story of the Battle of Britain, ' p. 243, L. Deighton relates how, on 25 August 1940, a German bomber which was to attack fuel storage depots in Thameshaven, lost his way and dropped his bombs on the City of London, which led to the bombing of Berlin by way of reprisal;

    (15) [(15) p.685] On this subject we may quote the statement of the Italian delegation: "As to the evaluation of the military advantage expected from an attack, referred to in sub-paragraph 2(a)(iii), the Italian delegation wishes to point out that that expected advantage should be seen in relation to the attack as a whole, and not in relation to each action regarded separately." (O.R. VI, p. 231, CDDH/SR.42, Annex (ad Art. 50));

    (16) [(16) p.686] See supra, p. 635;

    (17) [(17) p.686] O.R. XIV, p. 303, CDHH/III/SR.31, para. 29;

    (18) [(18) p.687] Ibid, p. 186, CDDH/III/SR.21, para. 27;

    (19) [(19) p.687] O.R. XV, p. 353, CDDH/III/264/Rev.1. The report of Committee III on this subject reads as follows: "In recognition of the limitation of the scope of this Section, as set forth in Article 44, paragraph 1 [the present Art. 49 -- Definition of attacks and scope of application -- para. 3] on the effect on the law applicable to armed conflict at sea or in the air, paragraph 4 was added to Article 50 to ensure that all reasonable precautions would nevertheless be taken in the conduct of armed conflict at sea and in the air." (Ibid., p. 285, CDDH/215/Rev.1, para. 99);

    (20) [(20) p.688] The ' Bibliography of International Humanitarian Law Applicable in Armed Conflict ', Geneva 1980, p. 169, contains a list of works relating to air warfare. Reference should be made in particular to J.M. Spaight, op. cit;