Precision attack and international humanitarian law

International Review of the Red Cross

Volumn 87, Issue 859, 2005, Pages 445-466

  Schmitt, Michael N ^a  

^a George C Marshall European Center for Security Studies   (Germany)

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EID: 84997059897     PISSN: 18163831     EISSN: 16075889     Source Type: Journal    
DOI: 10.1017/S1816383100184334     Document Type: Article

References (93)

1. Specifically, those set forth in Article 57 of Additional Protocol I (hereinafter AP I) to the Geneva Conventions of 12 August 1949, relating to the Protection of Victims of International Armed Conflicts, 12 December 1977, reprinted in The Laws of Armed Conflict, Dietrich Schindler & Jiri Toman (eds.), Martinus Nijhoff, Dordrecht, The Netherlands, 2004, p. 711. On precautions in attack, see discussion below.
2. See discussion in Michael N. Schmitt, “The conduct of hostilities during Operation Iraqi Freedom: An international humanitarian law assessment,” Yearbook of International Humanitarian Law (forthcoming), and the Human Rights Watch response thereto.
3. The decapitation campaign is described at length in Human Rights Watch, Off Target: The Conduct of the War and Civilian Casualties in Iraq, December 2003, at pp. 78–79, available at (visited 22 August 2005).
4. For the strikes on ICRC facilities, see Sean D. Murphy, “Contemporary practice of the United States relating to international law,” American Journal of International Law, Vol. 96, 2002, p. 247.
5. Anthony Dworkin, “The Yemen strike,” 14 November 2002, available at (visited 22 August 2005).
6. Defense Advanced Research Project Agency, Bridging the Gap, February 2005, ch. 3.
7. During Operation Iraqi Freedom, US forces dropped 5,086 JDAM GBU 31s (2,000 pound), 768 JDAM GBU 32s (1.000 pound), and 675 JDAM GBU 35s (1,000 pound penetrator). A 500 pound variant has been developed and is being employed by the F-16 Falcon and the F-15 Eagle. Figures contained in US Central Command Air Forces, Assessment and Analysis Division, Operation Iraqi Freedom: By the Numbers, 30 April 2003, p. 11, available at (visited 22 August 2005).
8. The United States defines rules of engagement as “directives issued by competent military authority that delineate the circumstances and limitations under which United States forces will initiate and/or continue combat engagement with other forces encountered.” DoD Dictionary, Operation Iraqi Freedom: By the Numbers. (note 8). ROE are derived from policy, legal and operational concerns.
9. For example, the 2003 Combined Forces Land Component Commander (Iraq) ROE Card provided: “Positive identification (PID) is required prior to engagement. PID is a reasonable certainty that the proposed target is a legitimate military target. If no PID, contact your next higher commander for decision.” Operational Law Handbook, US Army Judge Advocate General's Legal Center and School, Vol. 101, 2004.
10. See “Joint doctrine for targeting,” Operational Law Handbook., ch. 1.
11. DoD Dictionary, Operational Law Handbook. (note 8).
12. “Joint doctrine for targeting,” Operational Law Handbook (note 4), Figure 1–2.
13. On effects-based operations, see Brigadier General David A. Deptula, Effects-based Operations: Change in the Nature of War, Aerospace Education Foundation 2001
14. Department of Defense, “Effects-based operations briefing,” 19 March 2003 (hereinafter EBO Brief), available at (visited 22 August 2005).
15. On EBO and law, see Michael N. Schmitt, “Aerial effects-based operations and the law of armed conflict,” paper presented at a conference to mark the launch of the UK Manual of the Law of Armed Conflict, Oxford University, Oxford, July 2004. The articles presented will appear in a compilation to be edited by Steven Haines and published by Oxford University Press in 2005.
16. Effects-based operations are defined as “actions taken against enemy systems designed to achieve specific effects that contribute directly to desired military and political outcomes.” US Air Force, “Air Force basic doctrine,” Air Force Doctrine Document 1, 17 November, 2003, p. 98.
17. “Joint doctrine for targeting,” Air Force Doctrine Document. (note 4), Figure C-3.
18. “Probability of damage (Pd) is used to express the statistical probability (percentage or decimal) that specified damage criteria can be met assuming the probability of arrival.” United States Air Force, “Intelligence targeting guide,” AF Pamphlet 14–210, 1 February 1998, pp. 59–60.
19. William M. Arkin et al., On Impact: Modern Warfare and the Environment, a Case Study of the Gulf War, Greenpeace, June 1991, p. 78.
20. For an excellent summary of the precision aspects of the campaign, see Department of Defense, Report to Congress, “Kosovo/Operation Allied Force after-action report,” 31 January 2000.
21. NATO, “Kosovo one year on,” 30 October 2000, available at (visited 22 August 2005)
22. Herman L. Gilster, Desert Storm: War, Time, and Substitution Revisited, Airpower, spring 1996, p. 8
23. Michael Kelley, “The American way of war,” Atlantic Monthly, June 2002, p. 16.
24. By the Numbers, Atlantic Monthly. (note 14).
25. See e.g. Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law (hereinafter CIHL), Cambridge University Press, Cambridge, 2005, chapters 3 & 20.
26. Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, Cambridge University Press, Cambridge, 2004, p. 117.
27. ICTY, Prosecutor v. Stanislav Galic, Case No. IT-98–29-T, (Trial Chamber), 5 December, 2003, para. 57. Similarly, in reviewing the NATO bombing campaign against Yugoslavia, the group that authored the ICTY Final Report to the Prosecutor cited recklessness as the applicable standard when it urged against issuance of indictments.Office of the Prosecutor, International Criminal Tribunal for the Former Yugoslavia, “Final Report to the Prosecutor by the Committee established to review the NATO bombing campaign against the Federal Republic of Yugoslavia,” 13 June 2000, reprinted in International Legal Materials, Vol. 39,2000, p. 1258.
28. Statute of the International Criminal Court (Rome Statute), 17 July 1998, Art. 30, reprinted in Schindler, International Legal Materials. (note 1), p. 1309.
29. In the attacks against the Grdelic Gorge bridge, the Djakokic convoy, Dubrava Prison, and Korisa. See for example, Human Rights Watch, “Civilian deaths in the NATO air campaign,” February 2000, available at (visited 22 August 2005)
30. Amnesty International, “ ‘Collateral damage’ or unlawful killings? Violations of the laws of war by NATO during Operation Allied Force,” June 2000, available at
31. Off Target, “Civilian deaths in the NATO air campaign,”. (note 9).
32. Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996, para 78.
33. This is the example cited in the ICRC's official commentary on Additional Protocol I: Commentary on the Additional Protocols of 8 June 1997 to the Geneva Conventions of 12 August 1949, Yves Sandoz, Christophe Swinarski & Bruno Zimmermann (eds.), ICRC, Geneva, 1987, para. 1958, (hereinafter Commentary).
34. During Desert Storm, the US dropped 9,800 precision-guided munitions, destroying 2,500 tanks, heavy artillery pieces, and armoured personnel carriers - a ratio of bombs to equipment destroyed that was 50 times that of Operation Cobra. Robert A. Pape, “Hit or miss: What precision air weapons do precisely,” Foreign Affairs, September/October 2004, p. 163.
35. CIHL, Foreign Affairs. (note 29), Rule 14
36. Nuclear Weapons case, Foreign Affairs. (note 37), at 587 (Dissenting opinion of Judge Higgins). Article 57(2)(a)(iii) & (b) restates the prohibition in the context of precautions in attack.
37. ICC Statute, Foreign Affairs. (note 34), at Art. 8(2)(b)(iv). The Statute modifies “excessive” with the adjective “clearly” and “military advantage” with “overall,” thereby emphasizing both the need for clarity and the importance of avoiding assessments of individual attacks in total isolation.
38. Off Target, Foreign Affairs. (note 9), p. 19.
39. Bradley Graham, “US moved early for air supremacy,” Washington Post, 20 July, 2003, p. 26.
40. Twenty such targets were struck; Off Target, Washington Post. (note 9), at 20.
41. According to Human Rights Watch, this procedure “worked well” in most cases and the “aerial bombardment resulted in minimal adverse effects to the civilian population”; Washington Post.
42. Counter-targeting is “preventing or degrading detection, characterization, destruction, and post-strike assessment.” Defense Intelligence Agency, “Saddam's use of human shields and deceptive sanctuaries: Special briefing for the Pentagon Press Corps,” 26 February 2003, available at (visited 22 August 2005).
43. Todd S. Purdum, “Night time ambush in Iraqi city,” New York Times, 5 April 2003, p. 1
44. Dexter Filkins, “In the field choosing targets: Iraqi fighters or civilians? Hard decision for copters,” New York Times, 31 March 2003, p. 5. Civilian objects were also used in counter-targeting. Iraqi forces located military equipment and troops in or near civilian buildings. These included specially protected locations such as al-Nasiriyya Surgical Hospital, the Baghdad Red Crescent Maternity Hospital, the Imam Ali Mosque in al-Najaf, and the Abu Hanifa Mosque as bases for operations.
45. Off Target, New York Times. (note 9), pp. 72–73. During the battle for Fallujah, insurgents used 60 of the 100 mosques and 3 medical facilities in the city in this manner. Marine Expeditionary Force & Multi-National Corps-Iraq, “Telling the Fallujah story to the world,” Briefing Slides, 20 November 2004 (on file with author). Although no express provision banning the use of civilian objects as shields exists in IHL, such actions violate Additional Protocol Is Article 58 obligations for Parties to conflict to “endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objects; avoid locating military objectives within or near densely populated areas; [and] take the other necessary precautions to protect the civilian population, individual civilians and civilian objects under their control against the dangers resulting from military operations,” albeit only “to the maximum extent feasible.”
46. See also CIHL, New York Times. (note 29), ch. 6. Iraqi use of specially protected objects also clearly violated other provisions of IHL. The First Geneva Convention stipulates in Article 19 that “responsible authorities shall ensure that… medical establishments and units are, as far as possible, situated in such a manner that attacks against military objectives cannot imperil their safety.”
47. Contention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, reprinted in Schindler, New York Times. (note 1), p. 459, (hereinafter GC I).
48. Additional Protocol I is completely unambiguous: it states in Art. 12.4 that “[ujnder no circumstances shall medical units be used in an attempt to shield military objectives from attack,” while Art. 53(b) confers similar protection on “historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples,” New York Times.
49. See also Hague Regulations respecting the Laws and Customs of War on Land, Annex to Convention (IV) respecting the Laws and Customs of War on Land, 18 October 1907, Art. 27, reprinted in Schindler, New York Times., p. 55, (hereinafter HIVR).
50. Article 51.7 of AP I forbids the use of “[t]he presence or movements of the civilian population or individual civilians … to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations,” a prohibition that is unquestionably customary. On the customary nature of the prohibition, see CIHL, New York Times. (note 29), Rule 97.
51. See also ICC Statute, New York Times. (note 34), Art. 8.2(b)(xxiii).
52. For a discussion of this point, see Michael N. Schmitt, “Targeting and humanitarian law: Current issues,” Israel Yearbook on Human Rights, Vol. 59, 2003, p. 59.
53. See generally, Michael N. Schmitt, “Humanitarian law and direct participation in hostilities by private contractors or civilian employees,” Chicago Journal of International Law, Vol. 5, 2005, p. 511
54. Michael N. Schmitt, “ ‘Direct participation in hostilities’ and 21st century armed conflict,” in Horst Fischer et al. (eds.), Crisis Management and Humanitarian Protection: Festschrift fur Dieter Fleck, Berlin, 2004, pp. 505–529.
55. Air Force Operations and the Law, Department of the Air Force, Judge Advocate General's Department, 2002, p. 293.
56. See also the discussion in “Joint doctrine for targeting”, Air Force Operations and the Law. (note 4), at A-2 - A-3
57. USAF “Intelligence targeting guide,” Air Force Operations and the Law. (note 24), at A4.2.1.2.
58. “Some belligerents might have information owing to a modern reconnaissance device, while other belligerents might not have this type of equipment.” Commentary, Air Force Operations and the Law. (note 38), para. 2199.
59. Commentary, Air Force Operations and the Law. (note 38), para. 2198.
60. United Kingdom, Reservations and Declaration Made on Ratification, Corrected Letter of 18 June 1998, para. I (c), reprinted in Schindler, Air Force Operations and the Law. (note 1), pp. 815–816.
61. Commentary, Air Force Operations and the Law. (note 38), para. 2200.
62. Stuart W. Belt, “Missiles over Kosovo: Emergence, lex lata, of a customary norm requiring the use of precision munitions in urban areas,” Naval Law Review, Vol. 47, 2000, p. 174. Interestingly, he applies, in the present author's view, the wrong provision of the law of international armed conflict to arrive at an incorrect legal principle. He asserts that the duty applies in the context of the principle of proportionality, whereas the better position is that if such a duty exists (it does not), it would derive from obligations regarding the selection of means of warfare (precautions in attack).
63. See Danielle L. Infeld, “Precision guided munitions demonstrated their pinpoint accuracy in Desert Storm: But is a country obligated to use precision technology to minimize collateral civilian injury and damage,” George Washington Journal of International Law and Economics, Vol. 26, 1992, p. 109, arguing against such a notion.
64. For example, Human Rights Watch addressed the Djakovica Road incident, concluding that because “higher altitude seems to have impeded a pilot from adequately identifying a target,” “inadequate precautions were taken to avoid civilian casualties.” “Civilian deaths,” George Washington Journal of International Law and Economics. (note 35).
65. Declaration, George Washington Journal of International Law and Economics. (note 53), para. 1 (b).
66. But, in contrast, the ICRC Commentary rejected contribution to “military success” as a component of feasibility, suggesting that it was “too broad” and expressing concern that in “invoking success…one might end up by neglecting the humanitarian obligations prescribed here.” Commentary, George Washington Journal of International Law and Economics. (note 38), para. 2198 (in the context of verifying targets).
67. A.P.V. Rogers, Law on the Battlefield, Manchester University Press, Manchester and New York, 2nd ed., 2004, p. 108.
68. It was described in the commentary as accepted by the Conference “without much discussion.” Commentary, Law on the Battlefield. (note 38), para. 2226.
69. Geneva Convention relative to the Treatment of Prisoners of War, 12 August 1949, Art. 142, reprinted in Schindler, Law on the Battlefield. (note 1), p. 507.
70. These four conditions are inherent in the meaning of “armed forces”; they also apply to the persons referred to in Article 4A(1). As noted by Michael Bothe et al., “[i]t is generally assumed that these conditions were deemed, by the 1874 Brussels Conference and the 1899 and 1907 Hague Peace Conferences, to be inherent in the regular armed forces of States. Accordingly, it was considered unnecessary and redundant to spell them out in the Conventions.” Michael Bothe et al., New Rules for Victims of Armed Conflict, Martinus Nijhoff Publishers, The Hague/Boston/London, 1982, p. 234.
71. See also discussion in CIHL, New Rules for Victims of Armed Conflict. (note 29), at 15.
72. While it is not a war crime to attack the enemy, it may amount to a criminal offence (e.g. murder) under the national law of capturing forces. Lacking immunity, such persons may be prosecuted in the courts of any State with subject matter over the offence and personal jurisdiction over the offender. This point is reflected in CIHL, New Rules for Victims of Armed Conflict. (note 29), Rule 106.
73. “Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities.” API, New Rules for Victims of Armed Conflict. (note 1), Art. 43.2.
74. The classic article on the subject is the one by Richard R. Baxter, “So-called ‘unprivileged belligerency’: Spies, guerrillas and saboteurs,” British Yearbook of International Law, 1952, p. 323
75. reprinted in Military Law Review, 1975, Bicentennial Issue, p. 487.
76. Party buildings were regularly used as military supply depots and mustering points. Off Target, Military Law Review. (note 9), p. 70.
77. The prohibition dates back to the 1863 Lieber Code and also appears in the 1899 and 1907 Hague Regulations, the 1906,1929, and 1949 Geneva Conventions, and Additional Protocol I. See: Instructions for the Government of Armies of the United States in the Field (Lieber Code), promulgated as General Orders No. 100, US Department of the Army, Art. 117, reprinted in Schindler, Military Law Review. (note 1), p. 3
78. Convention (II) with Respect to the Laws and Customs of War on Land, with annexed Regulations, of 29 July 1899, Art. 23(f), Military Law Review., p. 55
79. HIVR, Military Law Review. (note 45), Art. 23(f)
80. Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, 6 July 1906, Arts. 27–28, reprinted in Schindler, Military Law Review. (note 1), p. 385
81. Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, 27 July 1929, Arts. 24 & 28, Military Law Review., p. 409
82. GCI, Military Law Review. (note 45), Arts. 39,44,53,54
83. Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, Arts. 41,44,45, reprinted in Schindler, Military Law Review. (note 1), p. 485
84. AP I, Military Law Review., (note 1), Art. 38.1.
85. See also the 1907 Hague Regulations ban on “improper use of a flag of truce, of the national flag or of the military insignia and uniform of the enemy, as well as the distinctive badges of the Geneva Convention,” a prohibition that is now unquestionably customary law, HIVR, Military Law Review. (note 45), Art. 23(f)
86. CIHL, Military Law Review. (note 29), ch. 18
87. International Military Tribunal (Nuremberg), Judgment and Sentences, 1946, American Journal of International Law, Vol. 41, 1947, p. 218.
88. The reference is to the Geneva Convention of 1864. Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, 22 August, 1864, reprinted in Schindler, American Journal of International Law. (note 1), p. 365.
89. See, e.g. Glenn Collins, “Allied advances, tougher Iraqi resistance, and a hunt in the Tigris,” New York Times, 24 March 2003, p. 1
90. Brian Knowlton, “Bush tells of good progress' but says war has just begun,” International Herald Tribune, 24 March 2003, p. 6. The said actions are specifically banned in AP I, Art. 37.1 (a).
91. Centres of gravity consist of “[t]hose characteristics, capabilities, or sources of power from which a military force derives its freedom of action, physical strength, or will to fight.” DoD Dictionary, International Herald Tribune. (note 8).
92. See for example, CIHL, International Herald Tribune. (note 29), ch. 2
93. Nuclear Weapons case, International Herald Tribune. (note 37), para. 78.