Warning Civilians Prior to Attack under International Law: Theory and Practice

AuthorPnina Sharvit Baruch - Noam Neuman
PositionProfessor (Colonel, Israel Defense Forces (Ret.)) - Lieutenant Colonel
Pages359-412
XIV
Warning Civilians Prior to Attack under
International Law: Theory and Practice
Pnina Sharvit Baruch and Noam Neuman*
Aprimary goal of the modern law of armed conflict (also known as interna-
tional humanitarian law) is to protect civilians as much as possible from the
violent consequences of hostilities. Accordingly, the law of armed conflict requires
that the parties to aconflict apply certain precautionary measures in order to mini-
mize incidental injury to civilians resulting from military attacks. One ofthese pre-
cautionary measures is the provision of warnings to civilians prior to an attack.
This article will deal with this measure, and examine both theoretical and practical
aspects of providing advance warnings of attacks.
During World War II there were instances when civilians were warned prior to
an attack. Advance warnings were also provided during other armed conflicts
throughout the second half of the twentieth century; however, the amount, scope
and specificity of warnings issued to civilians have dramatically increased in the
conflicts fought since the beginning of this century. Probably the most elaborate
and systematic warnings were issued by Israel in its conflict in Lebanon in 2006 and
*Professor (Colonel, Israel Defense Forces (Ret.)) Pnina Sharvit Baruch, Tel Aviv University
School of Law, Israel, and Lieutenant Colonel Noam Neuman, Israel Defense Forces. The opin-
ions and conclusions expressed in this article are those of the authors and do not necessarily re-
flect the views of the Israel Defense Forces or the government of Israel. We would like to thank
Galit Rajuan, Nimrod Karin and David Benjamin for their valuable comments and suggestions.
Warning Civilians Prior to Attack under International Law
especially in its operation in the Gaza Strip in 2009. This article explores the legal
boundaries of the obligation to issue warnings to civilians prior to attack. Does the
recent practice of Israel and other States result from legal obligations or is it are-
flection ofself-imposed restrictions? What are the elements awarning should fulfill
in order to meet the legal requirements?
Section Ibriefly reviews the legal framework of the obligation to give warnings
prior to an attack, its historical development and the manner with which it is dealt
in military manuals. In section II, State practice will be examined, with afocus on
Israeli practice. Based on these two sections, section III will analyze the different legal
aspects of the obligation. Finally, the article will end with our conclusion as to both
the legal and practical issues associated with advance warnings.
This article is written from the viewpoint of practitioners faced with the practi-
cal aspects of the issue at hand and is based on personal experience. Hopefully, it
will serve as a useful tool to those facing similar dilemmas, as well as to those evalu-
ating the performance of others.
I. The Duty to Give Prior Warning: The Legal Basis
A. Historical Development
The requirement to give, in certain circumstances, advance warning prior to an at-
tack that may affect the civilian population appears in the earliest codifications of
the law governing the conduct of hostilities. Thus, we find the following instruc-
tion in Article 19 of the Lieber Code of 1862:
Commanders, whenever admissible, inform the enemy oftheir intention to bombard a
place, so that the noncombatants, and especially the women and children, may be re-
moved before the bombardment commences. But it is no infraction of the common
law of war to omit thus to inform the enemy. Surprise may be anecessity. 1
Article 19 acknowledges that there may be situations when it is justified not to give
awarning, as when it is necessary to enable surprising the enemy.
The Lieber Code influenced the language of the Brussels Declaration of 1874,
which stated in Article 16 that "if atown or fortress, agglomeration of dwellings, or
village, is defended, the officer in command of an attacking force must, before
commencing abombardment, except in assault, do all in his power to warn the
authorities." 2Unlike the Lieber Code, the Brussels Declaration is directed to the of-
ficer in command of an attacking force and not to commanders in general. It also
specifies that the warning must be given to the "authorities." Similar language
360
Pnina Sharvit Baruch and Noam Neuman
appears in the Laws ofWar on Land published by the Institute of International Law
in 1880 (known also as the Oxford Manual) .3
Article 26 of the Regulations annexed to the 1907 Hague Convention IV con-
tains wording that is almost identical to that ofthe Brussels Declaration: "The Offi-
cer in Command of an attacking force must, before commencing abombardment,
except in the case of an assault, do all in his power to warn the authorities."4The
term "assault" refers to surprise attacks, regarding which there is no obligation to
warn in advance.5
Article 6ofthe 1907 Hague Convention IX Concerning Bombardment by Naval
Forces in Time of War also refers to the duty to issue warnings prior to attacks.6
Conversely, the draft Air Warfare Rules of 1923 did not refer to warnings,7which
suggests that at that period of time no similar rule existed with regard to aerial
bombardment.8
The implementation of the obligation to issue warnings prior to an attack cre-
ated little difficulty in earlier eras when attacks likely to seriously affect the civilian
population came from artillery, usually in asiege operation. In such acontext,
since the authorities of the besieged area had no practical means of protecting the
military objectives being targeted, surprise was not required and attacking troops
had little problem in giving an advance warning;9however, when attacks through
aerial bombardment commenced early in the twentieth century, surprise was
considered acritical condition for success. As aconsequence, as reflected by the
absence of awarning provision in the 1923 Air Warfare Rules, apparently no rule
existed at that time requiring warnings prior to aerial attacks. Rogers indicates that
when the International Committee of the Red Cross (ICRC) was preparing its re-
port to the Conference of Government Experts in 1971, amajority of experts felt
that the rule regarding warning "had fallen into disuse." 10
B. Current Legal Framework
Today there is widespread acceptance that the rule laid down in the 1907 Hague
Regulations reflects customary international law. 11
B.l. The 1977 Additional Protocols and the Duty to Give Warnings
The duty to give warnings prior to attack is addressed in Article 57(2) (c) of Addi-
tional Protocol Iof 1977, dealing with precautions in attack. The article provides,
"Effective advance warning shall be given of attacks which may affect the civilian
population, unless circumstances do not permit." 12 The article was adopted with
ninety votes in favor, none against and four abstentions at the diplomatic confer-
ence that negotiated the Protocol. 13 No relevant reservations were made regarding
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