Article 58 and Precautions against the Effects of Attacks in Urban Areas

98 Int’l Rev. Red Cross 147 (2016)

BYU Law Research Paper No. 17-12

46 Pages Posted: 15 Apr 2017

See all articles by Eric Talbot Jensen

Eric Talbot Jensen

Brigham Young University School of Law

Date Written: April 13, 2017

Abstract

The conduct of hostilities in urban areas is inherently difficult, particularly with respect to the protection of civilians. International Humanitarian Law places restraints on both attackers and defenders. While much is written about the obligations of attackers with respect to protecting civilians, much less attention has been paid to the defender’s obligations. These obligations, routinely referred to a “passive precautions” or “Precautions Against the Effects of Attacks” and are codified in Article 58 of Additional Protocol I to the 1949 Geneva Conventions (API). Article 58 requires parties, “to the maximum extent feasible,” to remove civilians and civilian objects from the vicinity of military objectives, to avoid locating military objectives within or near densely populated areas, and to take other necessary precautions to protect civilians and civilians objects from the dangers resulting from military operations.

Even though they are limited by only requiring those actions which are feasible, the obligations placed on the defender are far from trivial and, if applied in good faith, would certainly provide much needed protections to civilians in armed conflict, particularly in times of urban conflict. However, this ever-increasing urbanization s is creating significant pressure on the doctrine of precautions in the defense, stretching the “feasibility” standard beyond its capacity to adequately protect civilians. On the other hand, the emergence of advancing technology provides a mechanism for defenders to more easily and more fully comply with their obligations to segregate or protect the civilian population.

For the customary obligation of “precautions against the effects of attacks” to maintain its effectiveness, particularly in urban areas of conflict, the understanding of feasibility and what is “practicable” in current urbanized armed conflicts will have to expand, increasing the practical responsibilities on the defender, including through the use of modern technology. Moreover, imposing criminal responsibility when appropriate and feasible precautions are not taken will add to the doctrine’s enforceability and rectify the perceived imbalance between responsibilities of the attacker and the defender.

Keywords: Law of Armed Conflict, International Humanitarian Law, Law of War, Precautions, Defender, Attack, War, Armed Conflict, International Committee of the Red Cross, Feasibility, Emerging Technology, Technology, Advanced Technology, Article 58, Additional Protocol I, Loac, IHL, War in Cities

JEL Classification: K33

Suggested Citation

Jensen, Eric Talbot, Article 58 and Precautions against the Effects of Attacks in Urban Areas (April 13, 2017). 98 Int’l Rev. Red Cross 147 (2016), BYU Law Research Paper No. 17-12, Available at SSRN: https://ssrn.com/abstract=2952575

Eric Talbot Jensen (Contact Author)

Brigham Young University School of Law ( email )

504 JRCB
Provo, UT 84602
United States

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