164
conduct of hostilities
14. Sparing one’s own forces or capabilities was considered by a minority of the International Group of Experts to be a factor when performing a proportionality calculation. Consider a situation in which an attacker decides not to map the ‘cyber battle space’ for fear that doing so might reveal information that could enhance an enemy counterattack. The majority of the International Group of Experts rejected the premise that the maintenance of one’s own forces and capabilities in this situation is appropriate for inclusion in the calculation of military advantage. Instead, they took the position that such considerations are only appropriate when evaluating feasibility in the precautions in attack context (Rules 52 to 58). 15. This Rule must be clearly distinguished from the requirement to take precautions in attack (Rules 52 to 58), which requires an attacker to take steps to minimize civilian harm regardless of whether expected collateral damage is excessive in relation to the military advantage anticipated.
SECTION 7:
PRECAUTIONS
1. As noted in Article 49(3) of Additional Protocol I, the provisions on precautions ‘apply to any land, air or sea warfare which may affect the civilian population, individual civilians or civilian objects on land. They further apply to all attacks from the sea or from the air against objectives on land but do not otherwise affect the rules of international law applicable in armed conflict at sea or in the air.’ Therefore, the Rules of this section apply to any operation having effects on land. 2. The generally required standard under this section is ‘feasibility’. There is a different standard for cyber operations at sea or in the air that are not directed against land-based targets, but which may have effects on the civilian population.173 Article 57(4) of Additional Protocol I, which expressly relates to military operations at sea or in the air, states that ‘all reasonable’ rather than ‘all feasible’ precautions must be taken. This is reflected in the US Commander’s Handbook, which uses the term ‘all reasonable precautions’.174 The ICRC commentary to the provision states
173 174
ICRC Additional Protocols Commentary, para. 2230. US Commander’s Handbook, para. 8.3.1.