A/HRC/12/48
page 131
529. The determination of whether the circumstances permit a warning must be made in the
context of a good-faith attempt to adhere to the underlying duty to minimize death and injury to
civilians or damage to civilian objects. The key limitation on the application of the rule is if the
military advantage of surprise would be undermined by giving a warning. The same calculation
of proportionality has to be made here as in other circumstances. The question is whether the
injury or damage done to civilians or civilian objects by not giving a warning is excessive in
relation to the advantage to be gained by the element of surprise for the particular operation.
There may be other circumstances when a warning is simply not possible.
530. Article 57 (2) (c) requires the warning to be effective. The Mission understands by this
that it must reach those who are likely to be in danger from the planned attack, it must give them
sufficient time to react to the warning, it must clearly explain what they should do to avoid harm
and it must be a credible warning. The warning also has to be clear so that the civilians are not in
doubt that it is indeed addressed to them. As far as possible, warnings should state the location to
be affected and where the civilians should seek safety. A credible warning means that civilians
should be in no doubt that it is intended to be acted upon, as a false alarm of hoax may
undermine future warnings, putting civilians at risk.
(a)
Pre-recorded generic telephone calls
531. As regards the generic nature of some pre-recorded phone messages, the Mission finds
that these lacked credibility and clarity, and generated fear and uncertainty. In substance, there is
little difference between telephone messages and leaflets that are not specific. The Mission takes
the view that pre-recorded messages with generic information may not be considered generally
effective.
(b)
Warning shots delivered to roofs
532. The Mission is doubtful whether roof-knocking should be understood as a warning as
such.365 In the context of a large-scale military operation including aerial attacks, civilians cannot
be expected to know whether a small explosion is a warning of an impending attack or part of an
actual attack. In relation to the incident at the Sawafeary house recounted above, the Mission
cannot say for certain if this missile was meant to warn or to kill. It notes that, if this was meant
as a warning shot, it has to be deemed reckless in the extreme.
533. The legal requirement is for an effective warning to be given. This means that it should
not require civilians to guess the meaning of the warning. The technique of using small
explosives to frighten civilians into evacuation, even if the intent is to warn, may cause terror
and confuse the affected civilians.
534. The Mission does not have sufficient information to assess the accuracy of the Israeli
Government’s claim that the warning shot method was used only when previous warnings
(leaflets, broadcasts or telephone calls) had not been acted upon. However, in many
circumstances it is not clear why another call could not be made if it had already been possible to
The Mission notes and agrees with a similar position set out by Diakonia in its report on Operation Cast Lead of
30 June 2009, p. 9.
365
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