Leaflets dropped 45 minutes before airstrikes targeting ISIL oil tankers. Image credit:US Defense Department
Editor’s Note: This is the second in a two-part post discussing how the law of war applies to airstrikes against oil tanker trucks. You can read Part One here.
In Part 1 of this post, I set out the facts, as they have been revealed in open sources, of recent airstrikes against tanker trucks in ISIL territory and discussed under what circumstances the tankers can be deemed military objectives under customary international humanitarian law (IHL). This post will focus on the rationale behind the dropping of leaflets in advance of the strikes. It will also address the civilian status of the truck drivers and how their actual or hypothetical actions might shade this analysis.
So Why Drop Leaflets?
Under IHL, and as a corollary to the principle of distinction, commanders are under an obligation to take precautions on a continuous basis to avoid harm to civilians or civilian objects. When there is a choice of means and methods for conducting a particular attack, the parties must choose a course of conduct that will minimize incidental injury to civilians. And they must give the civilian population advance warning of attacks, unless not permitted by the circumstances (e.g., when the element of surprise is paramount or if notice would endanger the attacking troops). This is where the leaflets come in.
The relevant rules state:
- Rule 15: In the conduct of military operations, constant care must be taken to spare the civilian population, civilians and civilian objects. All feasible precautions must be taken to avoid, and in any event to minimize, incidental loss of civilian life, injury to civilians and damage to civilian objects.
- Rule 17: Each party to the conflict must take all feasible precautions in the choice of means and methods of warfare with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects.
- Rule 20: Each party to the conflict must give effective advance warning of attacks which may affect the civilian population, unless circumstances do not permit.
These rules are derived from Article 57 of Additional Protocol I (API) to the 1949 Geneva Conventions, which says that parties to a conflict shall “take all reasonable precautions to avoid losses of civilian lives and damage to civilian objects” in accordance with their rights and duties under IHL. (Remember that API governs conduct in international armed conflicts — generally, those between states — so it isn’t strictly binding in the Syria context.) API, in turn, no doubt drew inspiration from Article 19 of the Lieber Code, which governed the conduct of Union Forces during the US Civil War. With similar caveats on practicability, the Code required military commanders to
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.
There is no analog on precautions in Additional Protocol II, which governs contemporary non-international armed conflicts (NIACs) — those between states and non-state actors or among non-state actors. But the International Committee of the Red Cross (ICRC)considers the rule on precautions to be inherent to the principle of distinction, which applies regardless of conflict classification. So does the UN General Assembly, as expressed in Resolution 2675 (1970).
Given these obligations, leafletting has been used in prior military operations to warn the civilian population of an impending attack on a nearby military objective. Some states use other techniques. Israel has several, including the use of phone calls and text messages, as well as the more controversial “roof knocks” (i.e., dropping a minimal-impact munition on a building before destroying it to allow the civilian population time to vacate the premises). During the humanitarian intervention in Kosovo in 1998, there was some question as to whether NATO troops had adequately warned the civilian staff of a Serbian television station that was later destroyed, although blame was also laid on the Yugoslav authorities for not evacuating the building when it became known that it was on NATO’s target list.
This latter incident reveals that the rule on precautions applies to both the attacking and the defending party. In particular, IHL places a duty on all parties to avoid collocating military objectives near civilians or civilian objects:
- Rule 23: Each party to the conflict must, to the extent feasible, avoid locating military objectives within or near densely populated areas.
- Rule 24: Each party to the conflict must, to the extent feasible, remove civilian persons and objects under its control from the vicinity of military objectives.
Derived from Article 58(a) of API, these rules place obligations on the defending party to protect its own civilian population from the effects of armed conflict.
The dropping of leaflets brought the coalition into compliance with the duty to take precautions, not least because — notwithstanding the precision-guided assets at the coalition’s disposal — targeting the trailer while avoiding the cab would be near impossible, given the trucks’ combustible contents.
Read the full post at Just Security.
- Publication Type:Other Writing
- Publication Date:12/03/2015