08 Nov The Application of the Principle of Precautions within the Context of Northern Gaza: A Reminder
[Yunus Emre Gul is a PhD candidate at the International Law Institute of the University of Bonn. His research focuses on the jus ad bellum and jus in bello dimensions of cyber operations.]
On October 13th, the Israel Defence Forces (IDF) issued a public warning advising the evacuation of Northern Gaza and directing civilians to the southern part of the city for safety reasons. This action prompts an in-depth examination of the principles guiding armed conflicts, specifically the Law of Armed Conflict (LOAC). At its core, the LOAC aims to strike a balance between military necessity and humanity. Within the LOAC, three primary principles govern military operations once hostilities begin: distinction, proportionality, and precautions.
While distinction and proportionality are fundamental, this post places a heightened emphasis on the principle of precautions, particularly in the context of safeguarding civilian lives. After a brief discussion on distinction and proportionality, the focus will shift to a detailed examination of precautions. This principle requires both attacking and defending parties to undertake protective measures safeguarding civilians from the dangers of hostilities. These measures are articulated in Articles 57 and 58 of the Additional Protocol I (AP-I). However, the spotlight here will be solely on the former. This emphasis stems from its particular relevance to to recent regional events and the debates sparked by the IDF’s evacuation warning, a core tenet of the principle of precautions.
In the context of the principle of precautions, I will begin by exploring the intricacies of the terms ‘constant care’ and ‘feasible’, delving into their implications. The discussion will then move to examine the target verification, as well as the choice of means and methods. It will conclude with an assessment of the role and effectiveness of advance warnings. By systematically navigating these facets, the post aims to offer a human-centric perspective on the principle of precautions.
The Inherent Bias of the Principles of Dictinction And Proportionality Towards Military Necessity
As I have discussed in a recent article, the principles of distinction and proportionality are intrinsically aligned with the concept of military advantage, often skewing their interpretation towards military necessity. This inclination can disrupt the intended equilibrium between military necessity and humanity. Therefore, it becomes important to interpret the principle of precautions by leaning it more towards humanity, aiming to rebalance the scales between these two overarching concepts. At this juncture, it is pertinent to briefly elucidate distinction and proportionality in light of their connection with military advantage.
The principle of distinction, as articulated in Article 48 of the AP-I, mandates parties to ‘distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives’. Two key points emerge from this. First, the principle of distinction must be upheld during all military operations. The term ‘operation’ is crucial in this context as it not only encompasses attacks—defined as ‘acts of violence against the adversary, whether in offence or in defence’ that could lead to ‘death, injury, damage or destruction of persons or objects’—but also includes all military activities, including movements and manoeuvres aimed at combat. Second, these operations should solely target individuals and objects that qualify as lawful targets. This includes combatants, individuals directly participating in hostilities, and members of organized armed groups in terms of targetable persons. For objects, lawful targets are defined as those 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’. Notably, even though the concept of ‘military advantage’ is explicitly mentioned for objects, it ‘can be generalized and applied also to action against persons’. The underlying rationale for both categories—objects and persons—is their potential to provide a military advantage to the adversary.
The principle of proportionality, as outlined in Articles 51(5)(b), 57(2)(a)(iii), and 57(2)(b) of the AP-I, mandates that belligerent parties, when conducting attacks, must ensure that the anticipated military advantage does not result in disproportionate harm to civilians and civilian objects. This principle precludes attacks that might cause excessive damage relative to the anticipated military advantage. Military advantage is defined as ‘any consequence of an attack which directly enhances friendly military operations or hinders those of the enemy’. Collateral damage refers to the unintended harm inflicted upon individuals and objects when attacking legitimate targets. The determination of the balance between military advantage and civilian harm, and consequently what is deemed as excessive harm, is context-dependent.
The principles of distinction and proportionality, driven by their foundational emphasis on military advantage tend to inherently favor the attacker. When these principles become the focal point of discussions, it becomes inevitable that ‘the balance between military “necessity” and protection concerns has heavily tilted towards military logics, and norms have been implicitly downgraded to mere discretional guidance’. To address this imbalance, the principle of precautions emerges, characterized by its human-centric ethos. As underscored by the Madagascar delegate during negotiations, this principle is ‘a laudable desire to narrow the gap between the ideal and the possible, and to deal from a humanitarian standpoint with two opposite positions, namely, the aggressor’s and the victim’s’.
The Human-Centric Approach of the Precautions
Under Article 57, the attacking party is bound to exercise ‘constant care’ throughout its military operations. This means that all individuals involved in the operation should remain cognizant of the foreseeable consequences on civilians and their property and must make every reasonable effort to mitigate these impacts. While one might argue that the extent of this obligation varies, particularly between time-sensitive operations and more planned ones, this perspective faces challenges in the context of Northern Gaza. Given the total blockade around Gaza and the elapsed time thereafter, the IDF’s operations cannot be categorized as time-sensitive unless ‘time-sensitivity’ is interpreted as the complete eradication of all threats on the ground before initiating land warfare. On another note, in urban warfare, the proximity of military targets and civilian infrastructures can sometimes result in unintended damage, even with the utmost care. In such instances, the obligation adheres to what is deemed ‘feasible’ under the given circumstances, a term that will be elaborated on in the subsequent paragraph.
The term ‘feasible’ introduces ambiguity, offering potential leeway for the attacking party to exploit the term by justifying measures based on contextual considerations. Nevertheless, any such interpretation can be countered by reverting to the primary objective of the provision, which is ‘to spare the civilian population, civilians, and civilian objects’. The emphasis is not on the outcomes but on the processes leading to them. Even if an evacuation might imply that an impending attack would spare civilians, this does not automatically afford the attacker justification. For instance, if an attacking party benefits from engaging the adversary in places from which a large number of civilians have evacuated, it remains their responsibility to employ all available precision technology in their attacks to reduce harm to civilian structures. At this point, the attacker cannot merely strategize to conserve its resources for later stages of warfare, using ‘feasibility’ as a shield. Furthermore, particular attention should be given to specifically protected entities such as hospitals, water facilities, and cultural or religious sites, ensuring utmost caution even when attacking verified military targets.
Target verification holds paramount importance within the context of the principle of precautions. After the onset of the conflict, extensive bombing campaigns were carried out against Northern Gaza. In response to accusations about the bombings, an IDF spokesman claimed that the IDF only strikes targets backed by intelligence, emphasizing, ‘every target will have intelligence behind it’. While possessing such intelligence is crucial to uphold the principle of precautions, it is the accuracy of this intelligence that bears real importance. According to the Official Commentary on AP-I, if there is even a ‘slight doubt’ about a target, the onus is on the attacking party to ‘call for additional information’. Parks notes that the US achieved remarkable accuracy during the Linebacker II campaign by rigorously verifying target nature and adhering to Strategic Air Command rules. Although such rigorous precautions can sometimes place combatants at heightened risk, Parks acknowledges their importance not just legally, but also for meeting military and political goals. In light of this, it remains ambiguous to what extent the IDF would require doubt as a determinant to reconsider an attack.
The nexus between feasibility and the selection of means and methods in warfare is undeniable. The attacking party is obligated to employ means and methods that minimize collateral harm to civilian people and objects. In this context, the precision and range of weaponry become paramount. To draw from the Linebacker II campaign: despite adverse weather conditions and a limited supply of precision weapons, B-52s, recognized for their broad impact and being the sole viable option under such conditions, were selectively deployed against targets having expansive scope. Targets necessitating more accurate strikes, like bridges and railroad yards, were engaged with precision weapons whenever weather allowed—a mere 12 hours over the 12-day campaign. Similarly, the IDF, especially considering the interconnectedness of lawful targets and protected people and objects in Northern Gaza, should exhibit a heightened level of prudence in their choice of weapons to ensure the protection of civilians and civilian objects.
A cornerstone of the principle of precautions is the duty to provide an ‘effective advance warning’ to civilians before launching attacks. Except in unique situations, such as when the element of surprise is essential, attacking parties are bound to provide such a warning. While the IDF appears to have met this obligation with general warning for evacuation of Northern Gaza and specific warnings for targeted places, the efficacy of these warnings remains debatable. The term ‘effective’ lacks a rigid definition and is often subject to contextual interpretation. However, within the framework of the LOAC, the paramount objective of the principle of precautions is to maximize civilian protection. A warning serves as a crucial tenet of this principle, and its effectiveness can be assessed based on how well it advances this primary objective. From this perspective, just issuing an evacuation warning does not automatically render it effective. Its effectiveness is determined not just by the notice itself, but also by the practicality of the actions it advises. Given the high population density in South Gaza, the practicality of such a warning is debatable; directing people to evacuate when there are no viable destinations compromises the very intent of the warning. Moreover, it should grant civilians ample time to find alternative safety. During the evacuation process, even if the attacking party specifies certain routes for civilians to use, they must refrain from targeting not only those routes but also all other conceivable paths civilians might take, to ensure actionable safety measures. Given the urgency of the situation and the high population density, it is reasonable to expect civilians to use any accessible route to find safety. Furthermore, in the context of specific warnings, particularly protected entities like hospitals are of paramount importance. Given the pressing circumstances and the scarcity of medical supplies in the area, merely issuing a warning to a hospital does not ensure the warning’s effectiveness. This is especially true when there is an acute shortage of alternative facilities and when hospitals are not only treating patients but also serving as a refuge for civilians seeking safety, thereby making it practically impossible to relocate everyone to another secure location. Ultimately, while there is not a one-size-fits-all approach to effective warnings, they must be tailored to different situations to guarantee civilian safety.
While the principle of precautions might often appear secondary in consideration compared to principles like distinction and proportionality, it remains foundational to the conduct of armed conflicts. Adherence to this principle is essential not just for compliance with the LOAC but also to pave the way for post-conflict resolutions. The emphasis of this discourse is not simply anchored in pure humanism. The systematic destruction of civilian infrastructure provides adversaries with additional hiding spots, turning the rubble of buildings into new sniping positions. More importantly, causing every harm to civilian lives only perpetuates suffering: each civilian tragedy merely begets further atrocities and prolongs the conflict. Instead of adhering to the adage ‘silent leges inter arma’, our objective should be ‘lex sola sit inter arma’.