Case No.150 US/UK, Report on the conduct of the Persian Gulf War Discussion: 4b.

Is the report correct when it states that IHL precludes collateral damage of civilian objects or injury to noncombatant civilians that is clearly disproportionate to the military advantage gained in the attack of military objectives? Yes, the report is correct. Under the IHL, Attacks on military objects must not cause loss of civilian life that is excessive in relation to the concrete and direct military advantage. Moreover, if in the course of a military operation it appears that the attack will cause casualties among civilians and/or destruction of civilian objects that can no longer be considered proportional, the action must be cancelled or at least suspended.

5. Which precautionary measures must be taken in international armed conflict by the parties before launching an attack? Under the IHL, when launching an attack on a military objective, all feasible precautions shall be taken to avoid, in any event to minimize, incidental loss of civilian life, injury to civilians, and damages to civilian objects. The party to a conflict whose civilian population or civilian objects might suffer losses or damage in a lawful attack by the enemy forces also has specific obligations. In particular, the said party must enable an adversary to attack military objectives without excessive collateral damage to the civilian domain. This is the counterpart to the obligation according to which a distinction must always be made between a military objective and civilian persons or objects. Each party to a conflict therefore has the duty to remove the civilian population, individual civilians, and civilian objects under its control from the vicinity of military objectives to the maximum extent feasible. Moreover, military objectives should not be located within or near a densely populated area. Finally, the said party to the conflict must take other precautions to protect the civilian population, individual civilians, and civilian objects against the dangers associated with military operations. Among these measures are civil defense activities. Moreover, the duty to take precautions against the effects of military actions applies not only with regard to a party to the conflicts own population but also to other civilians temporary under its control, e.g. aliens, refugees, and others. It also applies to occupied territories.

6. In the event a military objective is situated among the civilian population. Does the military objective become immune from attack? According to US officials, Iraq systematically used this tactic. What was the reaction of the Coalition towards this situation? Did the Coalition forces target the same military objectives although they expected disproportionate civilian losses? Did the Coalition Forces always reach a consensus regarding the targets chosen for attack in Iraq? No, the presence of civilians will not render a target (military objective) immune from attack. An attacker must exercise reasonable precautions to minimize incidental or collateral injury to the civilian population or damage to civilian objects, consistent with mission accomplishment and allowable risk to the attacking forces. The defending party must exercise reasonable precautions to separate the civilian population and civilian objects from military objectives, and avoid placing military objectives in the midst of civilian population. A defender is expressly prohibited from using the civilian population or civilian objects (including cultural property) to shield legitimate targets from attack. Moreover, in modern wars it would be no longer possible to make a distinction between potential military objectives on one hand and civilian infrastructure on the other. The prohibition of retaining or locating military in civilian areas could make military defense measures impossible, and this would amount to an unacceptable breach of the right to self-defense. The coalition forces targeted specific military objects in populated areas, which the law of war permits.; at no time were civilian areas as such attacked. Coalition forces also chose not to attack many military objects in populated areas or in adjacent to cultural sites, even though law of war authorizes the attack on those sites. The attack of legitimate Iraqi military targets notwithstanding the fact it resulted in collateral injury to civilians and damage to civilian objects, was consistent with customary practice of nations and the law of war. Some targets were specifically avoided because the value of destruction of each target was outweighed by the potential risk to nearby civilians or, as in the case of certain archaeological and religious sites, to civilian objects. Coalition forces took several steps to minimize the risk of injury to non-combatants. To the degree possible and consistent with allowable risk to aircraft and aircrews, aircrafts and munitions were selected so that attacks on targets within populated areas would provide the greatest possible accuracy and the least risk to civilian objects and the civilian population. Where required, attacking aircraft were accompanied

by support mission aircraft to minimize attacking aircraft aircrew distraction from their assigned mission. Aircrews attacking targets in populated areas were directed not to expend their munitions if they lacked positive identification of their targets. When this occurred, aircrews dropped their bombs on alternate targets or returned to base with their weapons.