The Law of Armed Conflict (LOAC) requires that, when conducting attacks, parties to a conflict must take precautions that are feasible under the operational circumstances to minimize the expected incidental loss of civilian life, injury to civilians, and damage to civilian objects. What is feasible under international law amounts to what is practically possible taking into account the circumstances at the time.
Warnings can mitigate the risk of civilian harm in two ways. First, they give civilians time to take measures to protect themselves and their property from the effects of an attack. Second, warnings enable the opposing belligerent to take precautions against the effects of an attack—for example, by withdrawing emplaced military objectives from heavily populated areas (something which Hamas does not do, despite warnings, since it actively pursues civilian casualties).
It is clear from the negotiating history of AP I that danger to the civilian population is the condition precedent for advance notification of attack. In addition, the basic rule of protection set out in Article 51(1) expressly identifies the “dangers arising from military operations” as the hazard that the broader targeting rules address. Accordingly, to affect the civilian population, an attack’s results must go beyond the inevitable inconvenience to civilians who find themselves caught between the parties to an armed conflict.
The corollary is that not every urban attack requires advance notice. If the information reasonably available to a military commander indicates that civilians are unlikely to suffer death or injury, or if the elected means and methods of attack are expected to limit the effects of an attack to military objectives, then the obligation to warn will not arise.
In addition, the obligation to warn is not absolute. For instance, a warning is unnecessary if it would unduly compromise the ability of the attacking force to successfully conduct an attack. A warning is also unnecessary in cases where it might increase the risk to the civilian population. This could happen, for example, where there are reasonable grounds to believe that the adversary will respond to the warning of impending attack by deploying involuntary human shields around the announced target to raise the humanitarian costs of the strike for the attacking force. It has become evident that this is a very real risk in the current conflict.
The IDF utilizes a variety of precautionary measures where operationally feasible, including via the provision of advance warnings prior to a strike. Precautionary measures include providing effective advance warnings of attacks where circumstances permit, dropping leaflets over areas of expected attacks with instructions to evacuate and how to do so, broadcasts over radio and through social media messages warning civilians to distance themselves from Hamas operations, and in some cases made individual phone-calls to occupants of targets, warning them of impending attacks. Where circumstances do not permit providing effective advance warning before an attack – such as when the strike is aimed at a militant who may exploit the warning to escape, or when there is insufficient time to provide a warning (for example, when an enemy attack is imminent) – there is no legal requirement to do so.
In any event, the IDF does not assume that there are no civilians in areas or sites where advance warnings had been given: strikes in such locations, too, are conducted in accordance with LOAC, including the principles of distinction, proportionality and precautions in attack.
1 This customary rule is reflected in Article 57(2) of Additional Protocol I. Although Israel is not a signatory to AP I, its continuing practice reflects a broader consensus of States, namely that the obligation to warn is a rule of customary international law applicable in both international and non-international armed conflicts.
2 See for e.g., Article 3(10) of Amended Protocol II, and the ICTY decision in Galic where this is recognized as the established position of States.
3 Warnings as a precautionary measure: Gaza, Major Jon Griffiths, 2023.
4 See Hague Regulations, Article 26
5 Warnings as a precautionary measure: Gaza, Major Jon Griffiths, 2023.
