Practice Relating to Rule 20. Advance WarningNote: For practice concerning warnings when using booby-traps, see Rule 80. For practice concerning warnings when using landmines, see Rule 81.
Hague Regulations (1899)Article 26 of the 1899 Hague Regulations provides: “The commander of an attacking force, before commencing a bombardment, except in the case of an assault, should do all he can to warn the authorities.”
Hague Regulations (1907)Article 26 of the 1907 Hague Regulations provides: “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 Convention (IX)Article 6 of the 1907 Hague Convention (IX) provides: “If the military situation permits, the commander of the attacking naval force, before commencing the bombardment, must do his utmost to warn the authorities.”
Additional Protocol IArticle 57(2)(c) of the 1977 Additional Protocol I provides that, with respect to attacks, the following precautions shall be taken: “Effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit.”
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Lieber CodeArticle 19 of the 1863 Lieber Code states: “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.”
Brussels DeclarationArticle 16 of the 1874 Brussels Declaration states:
If a town or fortress, agglomeration of dwellings, or village, is defended, the officer in command of an attacking force must, before commencing a bombardment, except in assault, do all in his power to warn the authorities.
Oxford ManualArticle 33 of the 1880 Oxford Manual states: “The commander of an attacking force, save in cases of open assault, shall, before undertaking a bombardment, make every due effort to give notice thereof to the local authorities.”
New Delhi Draft RulesArticle 8(c) of the 1956 New Delhi Draft Rules states that the person responsible for ordering or launching an attack shall, first of all, “whenever the circumstances allow, warn the civilian population in jeopardy, to enable it to take shelter”.
Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of YugoslaviaParagraph 6 of the 1991 Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia requires that hostilities be conducted in accordance with Article 57 of the 1977 Additional Protocol I.
Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina Paragraph 2.5 of the 1992 Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina requires that hostilities be conducted in accordance with Article 57 of the 1977 Additional Protocol I.
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ArgentinaArgentina’s Law of War Manual (1989) states: “Those who plan or decide upon an attack shall, as far as possible, … give an effective advance warning of attacks which may affect the civilian population, unless circumstances do not permit.”
AustraliaAustralia’s Defence Force Manual (1994) states:
When a planned attack is likely to affect the civilian population, those making the attack are required to give, if practicable, effective advance warning of the attack to the authorities or civilian population. This requirement must obviously be applied in a commonsense manner in light of all other factors. If the proposed action is likely to be seriously compromised by a warning then there is no requirement to provide any warning.
Australia’s LOAC Manual (2006) states:When a planned attack is likely to affect the civilian population, those making the attack are required to give, if practicable, effective advance warning of the attack to the authorities or civilian population. This requirement must obviously be applied in a commonsense manner in light of all other factors. If the proposed action is likely to be seriously compromised by a warning then there is no requirement to provide any warning.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
BelgiumBelgium’s Law of War Manual (1983) states: “The civilian population shall be given advance warning before an attack (or bombardment), unless surprise is a crucial element for the success of the attack.”
BeninBenin’s Military Manual (1995) states: “If the tactical situation allows for it, a timely warning must be given in case of attacks which may affect the civilian population.”
Burundi’s Regulations on International Humanitarian Law (2007) states: “If possible, in cases [when] an attack may affect the civilian population, an effective advance warning must be given.”
CameroonCameroon’s Instructor’s Manual (1992) states: “Effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit.”
CanadaCanada’ LOAC Manual (1999) states:
An effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit such a warning to be given. For tactical reasons, an attacking force may not give a warning in order to maintain the element of surprise.
Canada’s LOAC Manual (2001) states in its chapter on targeting:An effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit such a warning to be given. For tactical reasons, an attacking force may not give a warning in order to maintain the element of surprise.
Central African Republic
The Central African Republic’s Instructor’s Manual (1999) states in Volume 2 (Instruction for group and patrol leaders): “When the tactical situation permits, advance warnings and recommendations must be given to civilians whose lives or objects are exposed to danger, using appropriate means.”
In Volume 3 (Instruction for non-commissioned officers studying for the level 1 and 2 certificates and for future officers of the criminal police), the manual also states: “Precautions must be taken as soon as, and provided that, the mission permits it (civilians are warned before a combat action is started … ).”
In Volume 3, the manual further states: “When a mission permits, and if an attack may affect the civilian population, sufficient advance warning must be given (for example by dropping leaflets from aircraft).”
Côte d’Ivoire’s Teaching Manual (2007) provides in Book III, Volume 1 (Instruction of first-year trainee officers):IV.1.1. Obligations in the planning of offensive actions
Before concretely launching an attack which could have negative effects on the civilian population, the combatant will give advance warning in order to allow the population time to leave the area or at least to take shelter. The warning must, of course, be authentic and effective. It must reach the civilians for whom it is intended, leaving them sufficient time to react. The warnings can be distributed by radio or television, by dropping leaflets, or on the Internet. The force leading the attack can be dispensed from giving a warning if the circumstances do not allow it because it would compromise the purpose of the operation.
IV.3.2. The civilian population staying
The civilian population can choose to stay in a town under siege. …
If the civilians do not leave the town under siege, this does not signify that the commander who directs the attack is dispensed from his duties to take all the usual precautions listed above … Sure, violators could consider that it is in their interest to hold back the civilian population, or parts of that population, to serve as human shields, or to elicit the sympathy of the international opinion regarding the humanitarian situation of the population and thereby to discredit the enemy. Nevertheless, the force leading the attack can easily thwart these proceedings by respecting the law, giving warnings, giving time for an evacuation in the form of a ceasefire, and by ensuring that the civilians are granted passage in safe conditions towards a protected zone or place.
In Book IV (Instruction of heads of division and company commanders), the Teaching Manual provides:
Effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit. For tactical reasons, an attacking force may not give a warning in order to preserve the element of surprise.
CroatiaCroatia’s Commanders’ Manual (1992) states: “When the mission permits, appropriate warning shall be given to civilian populations endangered by the direction of attack or by their proximity to military objectives.”
EcuadorEcuador’s Naval Manual (1989) states:
When circumstances permit, advance warning should be given of attacks that might endanger noncombatants in the vicinity. Such warnings are not required, however, if mission accomplishment requires the element of surprise or the security of the attacking forces would be otherwise compromised.
The manual specifies that: “Warnings may be general rather than specific lest the bombarding force or the success of its mission be placed in jeopardy.”
FranceFrance’s LOAC Summary Note (1992) states: “If the military mission allows for it, appropriate warning must be given to the civilian population to give it time to seek shelter.”
GermanyGermany’s Military Manual (1992) states: “Before engaging an objective, every responsible military leader shall give the civilian population advance warning of attacks which may affect it, unless circumstances do not permit.”
Germany’s Soldiers’ Manual (2006) states:When attacking a military objective, all necessary precautions shall be taken to spare as far as possible the civilian population located in the area or in the immediate vicinity of the object. If possible, the civilian population shall be warned of an attack.
Israel’s Manual on the Rules of Warfare (2006) states:The rules of war have laid down a number of rules of engagement in a theatre of war containing civilians:
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
- An attempt should be made to move the civilian population away from military targets by distributing leaflets, issuing warnings through loudspeakers, giving sufficient notice of an attack, etc, unless there are overriding, compelling military needs (immediate attack, surprise attack).
ItalyItaly’s IHL Manual (1991) provides: “Except in case of military necessity, the commander of an attacking force, before commencing bombardment, must do his utmost to warn the local authorities.”
Italy’s LOAC Elementary Rules Manual (1991) states: “When the mission permits, appropriate warning shall be given to civilian populations endangered by the direction of attack or by their proximity to military objectives.”
KenyaKenya’s LOAC Manual (1997) provides:
When the tactical situation permits, effective advance warning shall be given of attacks which may affect the civilian population (e.g. infantry fire to encourage civilian persons to seek shelter, discharge of leaflets from aircraft). The advance warning given shall allow the defender to take safeguard measures and to give appropriate information.
MadagascarMadagascar’s Military Manual (19940 states: “Whenever the mission allows for it, an appropriate warning must be given to the civilian population put in danger by the direction of an attack or by the objectives and targets which have been chosen.”
NetherlandsThe Military Manual (1993) of the Netherlands states: “Whenever circumstances permit, advance warning must be given of an attack which may affect the civilian population.”
The Aide-Mémoire for IFOR Commanders (1995) of the Netherlands states:
A warning must be given before opening fire if operational circumstances permit. A few examples of situations in which it is permitted to open fire without warning are:
a. if you or someone in your immediate vicinity are the subject of an armed attack; or
b. if warning enhances the risk of death or serious injury for you or any other person.
The Military Manual (2005) of the Netherlands states: “Effective warning should be given before any delivery of mines, booby-traps and other mechanisms which might affect the civilian population, unless circumstances do not permit this.” In its chapter on behaviour in battle, the manual states: “In the case of an attack on cultural property as defined above [in situations of imperative military necessity], it must be possible in some way to give suitable advance warning.”
With regard to precautions in attack, the manual states: “Thought must be given to … whether or not to warn the civilian population.”
The manual further provides:
If circumstances permit, advance warning should be given of an attack which may also affect the civilian population, to allow the authorities the opportunity to evacuate the civilian population. It is not obligatory to warn the civilian population of an attack where surprise is a decisive factor.
In its chapter on non-international armed conflict, the manual states: “If circumstances permit, a warning should be given before an attack that might also affect the civilian population.”
New ZealandNew Zealand’s Military Manual (1992) states: “Effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit.”
NigeriaNigeria’s Military Manual (1994) provides: “Where the tactical situation permits, effective advance warning shall be given of attacks which may affect [the] civilian population. This could be done by warning shots or discharge of leaflets from an aircraft.”
Peru’s IHL Manual (2004) states:When the tactical situation permits, effective advance warning must be given of attacks which may affect the civilian population (infantry fire to encourage civilians to take shelter, dropping leaflets from a plane, etc.).
The warning should be given in good time so that safety measures can be taken to significantly reduce the harmful effects of armed conflict.
The manual also states:
Only missions compatible with international humanitarian law can be planned.
Missions given to subordinates must include all the relevant details required to ensure respect for international humanitarian law (for example, appropriate preventive … warning measures).
The Russian Federation’s Regulations on the Application of IHL (2001) states: “Whenever the situation permits, during combat operations an advance warning shall be given to the civilian population concerning attacks that may affect it.”
South AfricaSouth Africa’s LOAC Manual (1996) states: “In terms of Article 57 [of the 1977 Additional Protocol I] there is a general requirement to provide a warning before an attack if civilians are present. An exception to the rule is if surprise is a key element of attack.”
South Africa’s Revised Civic Education Manual (2004) states:Warning requirements. In terms of Article 57 of Protocol I of the Geneva Conventions, there is a general requirement to provide a warning before an attack if civilians are present. An exception to this rule is if surprise is a key element of attack.
SpainSpain’s LOAC Manual (1996) states: “Whenever circumstances permit, warning must be given of any attack that may affect the civilian population.”
Spain’s LOAC Manual (2007) states that, during the execution phase of an attack: “Effective advance warning must be given of attacks that may affect the civilian population, if circumstances permit and the surprise factor is not essential to the success of the attack.”
SwedenSweden’s IHL Manual (1991) states: “Should it be impossible to suspend or cancel the attack, excessive losses among the civilian population may possibly be avoided by giving the civilian population advance warning.”
SwitzerlandSwitzerland’s Basic Military Manual (1987) states: “During every attack, commanding officers at the battalion or group level, and those of higher ranks, shall take care that the civilian population is warned if possible.”
TogoTogo’s Military Manual (1996) states: “If the tactical situation allows for it, a timely warning must be given in case of attacks which may affect the civilian population.”
Ukraine’s IHL Manual (2004) states: If the combat situation permits, an effective announcement of the offensive actions that may affect the civilian population shall be made in advance (e.g. preventive firing of light weapons to induce the civilians to go to shelters).
United Kingdom of Great Britain and Northern IrelandThe UK Military Manual (1958) states:
If military exigencies permit, and unless surprise is considered to be an essential element of success, the commander of an attacking force must do all in his power to warn the authorities of a defended place before commencing a bombardment. There is, however, no obligation to give notice of an intended assault. Should there be no civilians left in the area, no such notice is required.
The UK LOAC Pamphlet (1981) states: “Effective advance warning must be given of attacks which may affect the civilian population, unless circumstances do not permit.”
The UK LOAC Manual (2004) states:There is a duty to give advance warning of an attack that “may” affect the civilian population, unless circumstances do not permit. Obviously, the point does not arise as a matter of law if military operations are being conducted in an area where there is no civilian population nor if the attack is not going to affect the civilian population at all. In other cases, the warning must be given in advance and it must be effective. The object of warnings is to enable civilians to take shelter or leave the area and to enable the civil defence authorities to take appropriate measures. To be effective the warning must be in time, sufficiently specific and comprehensible to enable them to do this.
In its chapter on air operations, the manual states: “Unless circumstances do not permit it, effective advance warning must be given of air bombardment that may affect the civilian population.”
United States of AmericaThe US Field Manual (1956) states: “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.”
The US Air Force Pamphlet (1976) states: “Effective advance warning shall be given of attacks which may affect the civilian population unless circumstances do not permit.”
The Pamphlet specifies that:
The practice of states recognizes that warnings need not always be given. General warnings are more frequently given than specific warnings, lest the attacking force or the success of its mission be jeopardized. Warnings are relevant to the protection of the civilian population and need not be given when they are unlikely to be affected by the attack.
The US Naval Handbook (1995) states:
When circumstances permit, advance warning should be given of attacks that might endanger noncombatants in the vicinity. Such warnings are not required, however, if mission accomplishment requires the element of surprise or the security of the attacking forces would be otherwise compromised.
The Handbook specifies that: “Warnings may be general rather than specific lest the bombarding force or the success of its mission be placed in jeopardy.”
Yugoslavia, Socialist Federal Republic ofThe Socialist Federal Republic of Yugoslavia’s Military Manual (1988) states:
When allowed by military necessity, the commander of units bombarding a defended place in which there are civilians or attacking military objectives putting the civilian population at risk should previously inform the population of the impending bombardment or attack so that it can evacuate. The competent commander shall be freed from this obligation if the bombardment undertaken is aimed at supporting units attacking a defended place in order to capture it, if information on the impending bombardment would jeopardize the military operation in question.
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Denmark’s Military Criminal Code (1973), as amended in 1978, provides:Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment].
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment].
IndiaThe Report on the Practice of India refers to several pieces of legislation which provide that warning must be given before use of force for the maintenance of public order.
IrelandUnder Ireland’s Geneva Conventions Act (1962), as amended in 1998, any “minor breach” of the 1977 Additional Protocol I, including violations of Article 57(2)(c), is a punishable offence.
ItalyItaly’s Law of War Decree (1938), as amended in 1992, states: “Except in case of military necessity, the commander of an attacking force, before commencing bombardment, must do his utmost to warn the local authorities.”
Italy’s Wartime Military Penal Code (1941) punishes a commander who “omits, except where so required by military necessity, to take all possible steps to inform enemy authorities before commencing bombardment”.
NorwayNorway’s Military Penal Code (1902), as amended in 1981, provides:
Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the two additional protocols to [the 1949 Geneva] Conventions … is liable to imprisonment.
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In 2007, in the Constitutional Case No. C-291/07, the Plenary Chamber of Colombia’s Constitutional Court stated: The precautionary principle is the cornerstone of a number of specific rules which are considered to have attained customary status and to be applicable in internal armed conflicts … Among these rules is … the obligation of the parties to a conflict to give effective advance warning of attacks which may affect the civilian population, unless circumstances do not permit. [footnote in original omitted]
In 2010, in the Fuel Tankers case, the Federal Prosecutor General at Germany’s Federal Court of Justice investigated whether war crimes or other crimes under domestic law had been committed in the course of an airstrike which was ordered by a colonel (Oberst) of the German armed forces against two tankers transporting fuel for the International Security Assistance Force in Afghanistan stolen by the Taliban near Kunduz and which resulted in the deaths of a number of civilians. The Federal Prosecutor General stated: Pursuant to § 170 para. 2 StPO [Penal Procedure Code], the investigation proceedings which were initiated by the order of 12 March 2010 against Colonel (Oberst) Klein and Company Sergeant Major (Hauptfeldwebel) Wilhelm due to suspected offences under the VStGB [International Crimes Code] and other offences are to be terminated as a result of the investigations conducted and based on the sources of information set out hereafter and on the reasons given in detail hereafter.
The Federal Prosecutor General also stated:
Criminal responsibility under § 211 StGB [i.e. for murder under Germany’s Penal Code]
Colonel (Oberst) Klein’s actions were lawful under international law and therefore justified under domestic criminal law …
Even considering the fact that the bombing killed civilians to be protected under the international law of armed conflict, the order to attack was lawful under international law.
The result that the order to attack was lawful under international law is not changed by the obligation in principle to give advance warning of attacks which may affect the civilian population (see Art. 57 para. 2 sub-para. c AP [1977 Additional Protocol] I; ICRC Customary IHL [Study] p. 62 ff). On the one hand, Colonel (Oberst) Klein justifiably assumed that the attack which he ordered would not affect civilians. On the other hand, this obligation contains the limitation that it may be excluded by the given circumstances. Thereby international humanitarian law acknowledges the legitimacy and military necessity of surprise attacks (see ICRC Customary IHL [Study] p. 64 …). This limitation applies in the present case because a warning could have defeated the legitimate military objective of killing Taliban.
In its judgment in the Adalah (Early Warning Procedure) case in 2005, Israel’s High Court of Justice stated:An army in an area under belligerent occupation is permitted to arrest local residents wanted by it, who endanger its security (see HCJ 102/82 Tsemel v. The Minister of Defense, 37 (3) PD 365, 369; HCJ 3239/02 Marab v. The Commander of IDF Forces in the Judea and Samaria Area, 57 (2) PD 349, 365). In this framework – and to the extent that it does not frustrate the military action intended to arrest the wanted person, the army is permitted – and at times even required – to give the wanted person an early warning. Thus it is possible to ensure the making of the arrest without injury to the civilian population (see regulation 26 of Regulations Concerning the Laws and Customs of War on Land, The Hague, 18 October 1907 (hereinafter – The Hague Regulations); article 57(2) of Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977 (hereinafter – The First Protocol); see also Fleck The Handbook of Humanitarian Law in Armed Conflicts (1995) 171, 223 (hereinafter – Fleck); rule 20 of 1 Customary International Humanitarian Law: Rules (2005) 62 (hereinafter – International Humanitarian Law)).
In 2010, in the Couso case, the Criminal Chamber of Spain’s Supreme Court was called upon to decide an appeal in the case concerning the killing of a Spanish journalist in Baghdad on 8 April 2003 by troops of the United States of America. In deciding upon one of the issues raised in the appeal on whether there was a breach of the law due to the failure to apply the national and international provisions on the principle of precaution, the court held:1. … There is no trace – as opposed to what is stated in the order – that there was a visual mistake concerning the presence of a sniper … in the hotel. … [There is also no evidence] that the [US] tank was fired upon in the 35 minutes prior [to the attack on the hotel] or that there was anti-vehicle artillery capable of reaching it from the hotel, taking into account that the tank was more than 1500 metres away and that an RPG grenade launcher does not reach more than 650 metres. Even if there had been such a risk, the journalists in the hotel should have been warned.
2. Due to their similarity with this matter, we must refer to what has been said in relation to the fifth and sixth issues raised by the previous appellants concerning the existence of rational indications of the commission of an offence which violate the ius in bello, namely the norms of International Humanitarian Law that must be observed by belligerents.
[emphasis in original]
The court upheld the appeal against the order of 23 October 2009 by the Third Section of the Criminal Chamber of the Spanish National Court, which declared the termination of the proceedings, and held that “the proceedings must continue, and the outstanding preparatory enquiries must be undertaken, as well as any others arising from the clarification of the events under investigation.”
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ChinaThe Report on the Practice of China includes an example of a warning issued by the People’s Liberation Army in order to protect local residents living on islands near the front.
EgyptThe Report on the Practice of Egypt finds that warnings do not discharge the attacker from taking all necessary precautions towards the civilian population.
FranceThe instructions given to the French armed forces for the conduct of Opération Mistral, simulating a military operation under the right of self-defence or a mandate of the UN Security Council, state that “an individual warning must be given prior to any attack against a civilian ship or aircraft approaching or entering an exclusive or similar zone, to the extent that the tactical situation permits”.
IndonesiaOn the basis of an interview with a senior officer of the armed forces, the Report on the Practice of Indonesia states that the Indonesian armed forces normally observe the precautions listed in Article 57 of the 1977 Additional Protocol I.
IraqThe Report on the Practice of Iraq states that the issuing of prior public warnings to civilian populations has become established practice. It cites the examples of a general warning given by the President of Iraq to Iranian citizens, warnings issued by the General Command of the Iraqi armed forces to ships not to approach the zones of military operation in the Gulf and warning raids by Iraqi planes over Iranian cities.
Islamic Republic of IranAccording to the Report on the Practice of the Islamic Republic of Iran, during the Iran-Iraq War:
The Iranian authorities have followed a steady practice of warning the civilian population of the cities before attacking. In this regard, before each bombardment, statements of the war information center or military communiqués were issued which asked the civilian population to leave the cities. Usually the name of the cities to be attacked were listed, and the civilians were asked to take refuge to four holy cities of Karbala, Najaf, Kazemein and Samera.
The report concludes that “the opinio juris of Iran is supportive of precautions in attack, and in practice the warnings can be considered as application of these precautions”.
IsraelIn a briefing in 1982, the Israeli Ministry of Foreign Affairs declared that all precautions had been taken by Israeli forces by giving an effective advance warning through the distribution of leaflets and appeals to the civilian population via radio and loudspeakers so that they could leave the operational zone temporarily.
On 13 October 2000, Israeli helicopters carried out an air-strike on a Palestinian police station in Ramallah in retaliation for the killing of two Israeli soldiers the previous day. After the attack, a senior Israel Defense Force officer said that the military had made every effort to avoid casualties, warning the Palestinian police to evacuate their posts three hours before the strike. Warning shots were also fired minutes before the actual attack to warn off those who had not understood the earlier message.
The Report on the Practice of Israel states:
The issue of “effective advance warning” is somewhat complicated. Unfortunately, due to current practices in the region, in which attacking forces are shielded within civilian populated localities (especially as regards the activities of the terrorist organizations in Lebanon), Israel is forced, quite often, to return fire at targets situated in close vicinity to civilians. Obviously, issuing advance warning of such counter fire is unfeasible from both military and logical perspectives (not only is time of an essence in such cases, but the civilian population is already all too aware of the fact that hostilities are taking place in their immediate area) … Nevertheless, Israel and the IDF [Israel Defense Forces] have, on several occasions in the past, made public advance warnings to the civilian population in Lebanon of impending hostilities. Such instances include the 1982 operation “Peace for Galilee”, during which the IDF dropped leaflets over cities in the vicinity of which hostilities were expected, thereby enabling those elements of the population uninvolved in the conflict to vacate the area beforehand. Similar practices were adopted by Israel in other Lebanese-related operations over the years … Israel has found that the use of advance warnings to the civilian population is feasible only prior to the commencement of hostilities in a general area, or in cases in which the elements of surprise or speed of response play no significant part.
In 2006, Israel’s Ministry of Foreign Affairs stated: [W]henever it is possible without jeopardizing the operation, Israel issues advance notice to the local residents through various media, including dropping leaflets, to distance themselves from areas in which Hizballah is operating and from places in which weaponry is stored.
In 2006, in a statement to the Knesset, Israel’s Minister of Defense stated:Whenever we intend to target a munitions depot in a building in which a family resides, Israeli Intelligence devotes great effort to find the telephone number of that family, phone them and ask them to leave the house two hours before in order that they not be harmed.
In 2007, Israel’s Ministry of Foreign Affairs stated in a diplomatic note:Finally, whenever possible without jeopardizing the operation, Israel issued advance notice to the local residents through various media, including dropping leaflets, radio broadcasts and contacts with local leaders, to distance themselves from areas in which Hizbullah was operating and from places in which its weaponry was being stored.
The Ministry further stated:
Despite the urgent need to prevent the continuous firing of missiles into Israel by Hizbullah, Israel recognized the need to take measures to avoid, and in any event to minimize, civilian casualties. Among the measures taken by Israel was the printing of millions of fliers, written in Arabic, which were dispersed over populated areas, explaining that due to Hizbullah activity, residents should evacuate these areas in order to avoid being hurt. These messages were also broadcast through PA systems and through radio broadcasts on the Al-Mashrek station, broadcasting out of Israel in Arabic. Additionally, Israeli officials contacted the mayors and local leaders of a number of villages in order to ensure the evacuation of residents.
In March 2008, in a briefing to the Diplomatic Corps on Israel’s operations in Gaza, Israel’s Vice Prime Minister and Minister of Foreign Affairs stated: [W]e decided to avoid civilian casualties by sending a warning message to a place from which we knew the terrorists act. … We prefer to attack an empty building which is being used to manufacture rockets, even taking into consideration that the terrorists will leave the place.
In December 2008, in a briefing to the Diplomatic Corps on Israel’s operations in Gaza, Israel’s Vice Prime Minister and Minister of Foreign Affairs stated:[B]efore this military operation, we called on the civilians to leave those places that they know are Hamas headquarters or places where Hamas people live or have gathered, in order to attack Israel. … And maybe Israel is the only state in which warnings are given in advance to the civilian population to leave a place that we know we need to target a few minutes later, a few hours later or a few days later.
In 2008, in a background paper on Israel’s operations in Gaza, Israel’s Ministry of Foreign Affairs stated: [W]here it [is] possible to do so without compromising the effectiveness of an operation, the IDF [Israel Defense Forces] makes strenuous efforts to give advance notice to the civilian population in the vicinity of military targets, including places used by terrorists for storing weapons and launching attacks, so that they have an opportunity to leave the area. The warnings are carried out by means of the dropping of leaflets in Arabic, telephone calls and radio announcements. By encouraging civilians to leave such areas, these means have been found to be effective in saving lives.
In 2009, in a report on Israeli operations in Gaza between 27 December 2008 and 18 January 2009 (the “Gaza Operation”, also known as “Operation Cast Lead”), Israel’s Ministry of Foreign Affairs stated: 134. The requirement of effective warnings to the civilian population is also tempered by the express caveat, “unless circumstances do not permit.” The circumstances in question include the effect on achievement of the military mission or the security of the forces …
136. As a stark example, consider an adversary that launches mortars or anti-tank missiles from within civilian areas. There may be no choice except to return fire, even though this creates jeopardy for the civilians in the vicinity. Issuing an advance warning of the counter-fire may also be impractical, because it gives the shooter time to move. For this reason, advance warnings to the civilian population may be feasible mostly before hostilities begin in a particular area, or where the lack of surprise or speed of response does not significantly affect military advantage.
137. In certain circumstances, general warnings might be adequate in order to fulfil the obligations of the parties to an armed conflict under international law. …
210. … IDF [Israel Defense Forces] forces imposed on themselves a multi-faceted system of early warnings, which made their operations far more complex and largely eliminated the element of surprise the IDF might have otherwise gained in its battle against Hamas. In many cases, IDF forces provided not one but multiple warnings prior to each attack and used sophisticated technology to confirm the departure of civilians and minimise collateral damage.
225. The document [operational order] further confirmed the importance of minimising incidental harm to civilians and civilian facilities. The operational order provided that “[a]s far as it is possible under the existing circumstances, civilian population in the vicinity of a legitimate military objective shall be warned before an attack. Such early warning may be avoided, if it would risk the operation or the forces.” [footnote in original omitted]
The report also specified a number of the methods employed by the Israel Defense Forces (IDF) to provide advance warning to civilians:
262. The IDF also made special efforts to notify civilians of impending IDF operations and to instruct them how to avoid harm. The early warnings system was comprised of several layers that were complementary to each other.
263. First, general warnings were used, calling on civilians to stay away from sites where Hamas was conducting combat activities. In addition, regional warnings were distributed in certain areas, calling on civilians to leave those areas before IDF forces operated in them. Efforts were made to include in these warnings sufficient information to the residents, including a timeframe for the evacuation and designated specific routes for this purpose leading to safe areas. Far from having no place to flee, residents could – and the vast majority did – move to safe locations. Finally, specific warnings were issued to residents of particular buildings before attack.
264. Throughout the Gaza Operation, the IDF employed a variety of methods to communicate warnings effectively. The warning techniques included:
- Radio Broadcasts and Phone Calls: The IDF conveyed instructions and advance warnings to residents by local radio broadcasts with IDF announcements and by about 165,000 phone calls. This involved specific notices as well as a daily news broadcast (the latter from 31 December onwards).
- Dropping of Leaflets: During the Gaza Operation, the IDF dropped a total of some 2,500,000 leaflets of various kinds in the Gaza Strip. Some of the leaflets warned civilians to distance themselves from military targets, including buildings containing weapons, ammunitions or tunnels, or areas where terrorist activity was being conducted. Other leaflets directed residents to leave a particular location and move to a safe zone by a certain route and within a defined period of time. Such leaflets were distributed, for instance, in the northern Gaza neighbourhood of Sajaiya. While warnings were a significant tool to reduce the likelihood of civilian casualties, IDF forces did not consider the distribution of leaflets alone as sufficient to presume the absence of civilians at the relevant locations.
- Specific Warnings Before Attacks: In addition to the above, the IDF made specific telephone calls just before an attack was about to take place, informing residents at risk about the upcoming strike and urging them to leave the place. In certain instances, although such warnings were made, the civilians chose to stay. In such cases, the IDF made even greater efforts to avoid civilian casualties and minimise collateral damage by firing warning shots from light weapons that hit the roofs of the designated targets, before proceeding with the strike. These warnings were accompanied by real-time surveillance in order to assess the presence of civilians in the designated military target, despite the advance warnings. Accordingly, the commander in charge assessed whether the collateral damage anticipated, including to those who chose to stay at the premises, was not excessive in relation to the military advantage anticipated. The specific warnings were generally effective. Several such incidents are discussed … 265. While the warning systems implemented by the IDF did not provide a 100 per cent guarantee against civilian casualties, they were, in fact, highly effective. Aerial video surveillance by IDF forces confirmed the departure of civilians from targeted areas prior to the attack as a direct result of the warnings. [emphasis in original; footnotes in original omitted]
JordanThe Report on the Practice of Jordan notes that a booklet on the law of armed conflict prepared by the ICRC is used by military commanders. The booklet refers to the obligation to give an effective advance warning prior to an attack.
MalaysiaOn the basis of interviews with members of the armed forces and the Ministry of Home Affairs, the Report on the Practice of Malaysia states:
There are no written laws which require precautions to be taken in attack. However, during the communist insurgency, the imposition of curfews and announcements by the Department of Information to inform civilians to remain indoors or not to enter certain areas during certain periods served as an indirect warning to the civilian population.
NetherlandsAccording to the Government of the Netherlands, commanders have to take all the precautionary measures required by Article 57 of the 1977 Additional Protocol I when carrying out an attack.
Russian FederationIt has been reported that, during the conflict in Chechnya, the Russian Federation dropped leaflets throughout Grozny, ordering all Chechens to leave the city within five days. The leaflets stated: “Those who remain will be viewed as terrorists and bandits. They will be destroyed by artillery and aviation. There will be no more talks. All those who do not leave the city will be destroyed.” A Russian general told reporters that the leaflets were a humanitarian warning meant to protect civilians, not an ultimatum.
Syrian Arab RepublicThe Report on the Practice of the Syrian Arab Republic asserts that the Syrian Arab Republic considers Article 57 of the 1977 Additional Protocol I to be part of customary international law.
United Kingdom of Great Britain and Northern IrelandIt is reported that, during the war in the South Atlantic, UK forces gave prior notice of their intention to bomb Goose Green and specified that such notice was given in accordance with the relevant laws.
In 2008, in response to a question in the House of Commons, the UK Secretary of State for Defence wrote: “Significant resources and effort are put into understanding properly the operational environment, including details of the civilian population who wherever possible are warned of impending operations.”
United States of AmericaDuring the Second World War, before the atomic bomb was dropped on Hiroshima, the US reportedly warned Japanese authorities that certain towns could be heavily bombed and that civilians should be evacuated. Similar warnings were reportedly issued in the European theatre of war.
It is reported that, during the Korean War, US forces planned that “several days prior to the attack planes would drop leaflets over Pyongyang warning civilians to stay away from military installations of any kind”.
In 1987, the Deputy Legal Adviser of the US Department of State stated that the United States supported the requirement that “effective advance warning be given of attacks which may affect the civilian population, unless circumstances do not permit”.
In 1991, in response to an ICRC memorandum on the applicability of IHL in the Gulf region, the US Department of the Army stated:
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. 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.
In 1995, an opinion of a US army legal adviser on the legality of silencers/suppressors stated:
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 … [The opinion then cites Article 26 of the 1907 Hague Regulations and refers to Article 6 of the 1907 Hague Convention (IX).] Article 57, paragraph 2(c) of Protocol I Additional to the 1949 Geneva Conventions of 8 June 1977 contains a more relaxed but similar requirement, updating the two 1907 provisions while reconciling the slight difference between them. Although not a party to this treaty, the United States regards this provision as a re-codificat
ion of customary international law. The warning requirement cited above was for the purpose of enabling the civilian population to take appropriate steps to protect themselves from the collateral effects of attack of military objectives, or otherwise from the effects of war; it is not an obligation to warn combatants of their imminent attack. The exception to the warning requirement, relieving a commander from the obligation in cases of assault (stated more generally as “unless circumstances do not permit” in the 1977 Additional Protocol I) recognizes the legitimate use of the fundamental military element of surprise in the attack of enemy military forces in order to reduce risk to the attacking force and to increase its chance for successful accomplishment of its mission.
The Report on US Practice states:
In U.S. practice, bombardment warnings have often been general in their terms, e.g. advising civilians to avoid war-supporting industries, in order not to alert the air defense forces of an impending attack on a specific target. Such was the case in the Korean War.
ZimbabweThe Report on the Practice of Zimbabwe states that the provisions of Article 57 of the 1977 Additional Protocol I would be regarded as customary by Zimbabwe because of its adoption of the Geneva Conventions Amendment Act which incorporates the 1977 Additional Protocol I into Zimbabwe’s law and practice.
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UN Secretary-GeneralIn 1996, in a report on UNIFIL in Lebanon, the UN Secretary-General stated:
In the early morning of 11 April , Israeli aircraft and artillery began an intensive bombardment of southern Lebanon as well as targets in the Beirut area and in the Bekaa valley … In the first few days of the operation, Israeli air force and artillery attacked selected targets, including the homes of persons suspected to be affiliated with Hizbullah. At the same time, an IDF-controlled radio station in southern Lebanon broadcast threats of further bombardments, set deadlines for the inhabitants to leave and stated that once the deadline had passed IDF [Israel Defense Forces] would regard all who remained as legitimate targets. By 13 April, some 90 towns and villages, including Tyre and villages north of the Litani river, had thus been placed under threat. As a result of these threats and the Israeli bombardment, about a quarter of the inhabitants, more than 100,000, left UNIFIL’s area of operation and Tyre. Around 5,000 persons sought refuge inside UNIFIL positions and at its logistic base in Tyre. Given the large number of inhabitants who remained behind, IDF did not in fact treat the whole area as a free-fire zone.
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International Criminal Tribunal for the former Yugoslavia In its judgment in the Kupreškić case in 2000, the ICTY Trial Chamber stated that Article 57 of the 1977 Additional Protocol I was now part of customary international law, not only because it specified and fleshed out general pre-existing norms, but also because it did not appear to be contested by any State, including those who had not ratified the Protocol.
With reference to the Martens Clause, the Trial Chamber held:
The prescriptions of … [Article 57 of the 1977 Additional Protocol I] (and of the corresponding customary rules) must be interpreted so as to construe as narrowly as possible the discretionary power to attack belligerents and, by the same token, so as to expand the protection accorded to civilians.
In its final report to the ICTY Prosecutor in 2000, the Committee Established to Review NATO’s Bombing Campaign Against the Federal Republic of Yugoslavia stated, with respect to the attack on the Serbian radio and television building in Belgrade:
Although NATO alleged that it had made “every possible effort to avoid civilian casualties and collateral damage”, some doubts have been expressed as to the specificity of the warning given to civilians by NATO of its intended strike, and whether the notice would have constituted “effective warning … of attacks which may affect the civilian population, unless circumstances do not permit” as required by Article 57(2) of Additional Protocol I. Evidence on this point is somewhat contradictory. On the one hand, NATO officials in Brussels are alleged to have told Amnesty International that they did not give a specific warning as it would have endangered the pilots. On this view, it is possible that casualties among civilians working at the RTS may have been heightened because of NATO’s apparent failure to provide clear advance warning of the attack, as required by Article 57(2). On the other hand, foreign media representatives were apparently forewarned of the attack. As Western journalists were reportedly warned by their employers to stay away from the television station before the attack, it would also appear that some Yugoslav officials may have expected that the building was about to be struck … Although knowledge on the part of Yugoslav officials of the impending attack would not divest NATO of its obligation to forewarn civilians under Article 57(2), it may nevertheless imply that the Yugoslav authorities may be partially responsible for the civilian casualties resulting from the attack and may suggest that the advance notice given by NATO may have in fact been sufficient under the circumstances.
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ICRCTo fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that:
When the tactical situation permits, effective advance warning shall be given of attacks which may affect the civilian population (e.g. infantry fire to encourage civilian persons to seek shelter, discharge of leaflets from aircraft).
In an appeal issued in October 1973, the ICRC urged all the belligerents in the conflict in the Middle East (Egypt, Iraq, Israel and the Syrian Arab Republic) to observe forthwith, in particular, the provisions of, inter alia, Article 50(1)(c) of the draft Additional Protocol I, which stated in part: “Whenever circumstances so permit, advance warning shall be given of attacks which may affect the civilian population.” All governments concerned replied favourably.
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Farabundo Martí para la Liberación Nacional (FMLN)In 1985, in the context of the conflict in El Salvador, the FMLN warned all social sectors of the country that they should avoid “those places visited by military elements, both from the army of the puppet regime as well as foreign military personnel involved in repressive and genocidal activities against the popular revolutionary movement”, for these places would be considered military objectives. The FMLN also warned owners of property who leased it to foreign military advisers that their property would be considered military objectives.
Front Patriotique Rwandais (FPR)In February 1993, the FPR in Rwanda reportedly warned the civilian population of Kidaho of an imminent assault, asking them to leave the town.
Médecins Sans Frontières (MSF)With respect to UNOSOM’s military operations of 17 July 1993 in Somalia, MSF stated:
The military operations did not confine themselves within the zone ordered evacuated by the United Nations. The NGO’s, but not the civilian population, were given warning to evacuate the outskirts surrounding the delineated sector. The fighting spread to the peripheries of the area where no orders had been given to evacuate: consequently, the civilian population north of Afgoi road was caught in the fighting.
Sudan People’s Liberation Movement/Army (SPLM/A)According to the Report on SPLM/A Practice, the SPLM/A has persistently warned civilians to evacuate the towns on which a siege or an attack is intended. During the 1984–1991 military operations, Radio SPLA issued warnings to the civilian populations living in villages in southern Sudan.
Amnesty InternationalIn its report on the NATO bombing campaign against the Federal Republic of Yugoslavia issued in 2000, Amnesty International stated:
However, there was no warning from NATO that a specific attack on RTS [Serbian state radio and television] headquarters was imminent. NATO officials in Brussels told Amnesty International that they did not give a specific warning as it would have endangered the pilots.