A/HRC/42/CRP.1
do everything feasible to verify that something thought to be a military objective is in fact
one.53
77.
In addition, unless circumstances do not permit, civilians must be given advance
warning of an attack.54 This rule requires the giving of an effective warning. This would
imply that the warning is capable of being acted upon. One can envisage the giving of a
warning which, in the circumstances, is not capable of being acted upon. It would
nevertheless be a warning and should normally be given, subject to the need to avoid
terrorizing the civilian population. The formulation of this rule is important. It is not that a
warning should be given if feasible. The presumption is that a warning must be given. The
purpose of such a rule is to enable civilians to avoid harm either by leaving the area or by
taking shelter.55 The attacking party is also required to consider the potential impact of the
attack on the natural environment and cannot launch an attack where the foreseeable impact
would be disproportionate. This raises an issue which is relevant in every application of the
proportionality principle. When considering the foreseeable impact is the attacking party
entitled to assume that everything will work as planned; that weapons will function as they
are supposed to do and that protective measures round an installation will function as they
are supposed to do? If not, what is the test? It is not reasonable to suggest that the attacker
must envisage the worst case scenario in which everything goes wrong.
Weapon Use
78.
It has already been shown that the choice of weapon to be used in an attack will
affect the determination of proportionality. There are, in addition, general rules about
weapon use. Furthermore, certain weapons are the subject of specific bans or specific
regulation of their use.
79.
No weapon can be used which is of a nature to cause “superfluous injury or
unnecessary suffering” to combatants.56 The other general rules with regard to weapon use
ultimately derive from the obligation to protect the civilian population. So, for example, the
use of inherently indiscriminate weapons is prohibited on account of the risk they pose to
civilians.57 Similarly, the use of a potentially discriminate weapon in an indiscriminate way
is also prohibited, as is the use of a weapon, however precisely targeted, which may be
anticipated to give rise to excessive casualties. A party to a conflict is not required to use
the most precise, “high-tech” weapon in its arsenal to prosecute a particular attack on
condition that the weapon used is lawful and the foreseeable consequences of its use are
lawful.
80.
The lawfulness of weapons or weapons systems in relation to their nature or use has
been called into question in the conflict in Yemen in a number of cases, particularly in the
shelling, the use of indirect fire weapons in residential areas, and the use by the Houthis of
landmines, both anti-vehicle and anti-personnel, without any attempt to take steps to protect
the civilian population from their effects.
2.
International Human Rights Law
81.
As noted in last year’s report58, the Government of Yemen remains responsible for
the fulfilment of its human rights obligations in the entirety of its territory, including the
parts over which it has lost control. Yemen has the primary obligation to protect the
Yemeni population from harmful interference by non-State armed groups, an obligation of
due diligence.59 The Human Rights Committee asserted that a State Party also has the
53
ICRC Study on customary IHL, rule 16.
ICRC Study on customary IHL, rule 20.
55 Ibid, Volume 2, Part I, Chapter 5F.
56 See generally ICRC Study on customary IHL, rule 70.
57 ICRC Study on customary IHL, rule 71.
58 A/HRC/39/43, para. 13.
59 See e.g., Geneva Academy of International Humanitarian Law and Human Rights, “Human Rights
Obligations of Armed Non-State Actors: An Exploration of the Practice of the UN Human Rights
Council,” Academy In-Brief No. 7, December 2016 (https://www.geneva-academy.ch/joomlatools54
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