The Report
of the Iraq Inquiry
in the
conduct of hostilities.123
It derives
mainly from the four 1949 Geneva Conventions
and their
Additional Protocols, and from the 1907 Hague Regulations, but also
from other
international
conventions and protocols covering specific areas, as well as from
customary
law; that
is, those rules derived from the established practice of
states.
The
cardinal principles of humanitarian law are authoritatively set out
in an advisory
opinion of
the International Court of Justice:
“The first
is aimed at the protection of the civilian population and civilian
objects and
establishes
the distinction between combatants and non-combatants; States
must
never make
civilians the object of attack and must consequently never use
weapons
that are
incapable of distinguishing between civilian and military targets.
According
to the
second principle, it is prohibited to cause unnecessary suffering
to combatants:
it is
accordingly prohibited to use weapons causing them such harm or
uselessly
aggravating
their suffering. In application of that second principle, States do
not have
unlimited
freedom of choice of means in the weapons they
use.”124
The key
elements of LOAC which apply to targeting of military objectives
during a conflict
are set out
in the 1977 Protocol Additional to the Geneva Conventions of 1949
(Protocol I).
The main
principles can be summarised as:
•
Distinction.
The parties to
the conflict must at all times distinguish between the
civilian
population and combatants, and between civilian objects and
military
objectives,
and shall direct their operations only against military
objectives
(Article 48).
•
Proportionality.
Military
objectives must not be attacked if the attack is likely
to
cause
civilian casualties or damage which would be excessive in relation
to the
concrete
and direct military advantage anticipated (Article
57:2:b).
•
Military
Necessity. Offensive
operations must be limited to those which are
necessary
i.e. only those which are required to secure a definite military
advantage.
If there is
a choice between targets for obtaining a similar military
advantage, the
objective
to be selected shall be that the attack on which may be expected to
cause
the least
danger to civilian lives and civilian objects (Article
57:3).
•
Feasible
Precautions. In the conduct
of military operations, constant care shall
be taken to
spare the civilian population, civilians and civilian objects.
Those
who plan or
decide upon an attack must take a number of specified
precautions,
focusing on
the principles outlined above (Article 57).
351.
To allow
planning to proceed, the MOD sought Lord Goldsmith’s views
in
early
February on the considerations that should apply to the selection
of targets
during an
air campaign.
123
International
Committee of the Red Cross, 29 October 2010, The
ICRC’s mandate and mission;
International
Committee of the Red Cross, 29 October 2010, War
and international humanitarian law.
124
Report ICJ,
1996, Legality of
the Threat or Use of Nuclear Weapons, pages 226
and 257.
438