Nouveau | Limiting the choice of weapons to protect civilians in an urban environment in Libya: 2011

Case prepared by Benedetta Panagia, Maria Chiara Giaquinto, Nour Taki and Karina Mele, LL.M. students at Roma Tre University, under the supervision of Professor Giulio Bartolini (IHL Professor) and Laura Di Gianfrancesco (Research assistant), Roma Tre University IHL Legal Clinic.

 

A. OPERATION UNIFIED PROTECTOR

 

[Source: Todd R. Phinney, Reflections on Operation Unified Protector, 2014, available at https://ndupress.ndu.edu/Portals/68/Documents/jfq/jfq-73/jfq-73_86-92_Phinney.pdf?ver=2014-03-26-120652-783] 

 

NATO’s precautions in attack

[…]

Moving forward improved the air effort. This was critical as each tactical bomb had a very real strategic importance for the unity of the Alliance. Importantly, the [North Atlantic Council] NAC mandated a zero civilian casualty allowance for NATO fires. Early on, General Jodice identified the unity of the Alliance and partner nations as the “blue” center of gravity and one errant bomb with civilian casualties could have splintered cohesiveness. […]

 

The United Nations mandate and NATO leadership did not limit strikes to regime forces. NATO forces could engage any military force threatening civilians. [...] Strategists emphasized disrupting regime command and control as well as military and paramilitary forces.  This geographic focus combined with the center of gravity analysis yielded four regional approaches with the intent of protecting civilians. Around the Greater Tripoli region, NATO focused on disrupting command and control and regime forces. […]

 

Discussions to this point focused on the challenges during the few months of OUP. As time progressed, the [Combined Force Air Component – CFAC] organization matured and became a cohesive team. Needed external national support became available, at least to the minimal level necessary to plan and execute a successful campaign. Both deliberate and dynamic targeting processes evolved, and by mid-June the CFAC effectively and rapidly applied fires across the battlespace. Deliberate target sets ranged from isolated military sites in the badlands to urban installations in downtown Tripoli requiring sophisticated planning and delivery. […]

 

Planners and aircrews took exhaustive measures to ensure that every strike was required and was free of civilian casualties. As an example, an aircrew member terminally “drug off” a laser-guided bomb when a civilian approached the target. In another, the aircrew did not release on a re-attack when Libyan emergency responders became a collateral damage concern. The discipline of OUP aircrews was commendable, enabling the cohesion of the Alliance and ensuring continued international support for the mission. This highlights the importance of training to all spectrums of conflict. 

 

Dynamic targeting also matured, and the CFAC team became more adept at effectively solving higher collateral damage estimate scenarios. This was possible through the selection of weapons and a developed and seasoned approval process in combat operations. Positive identification of regime elements became more difficult as they quickly shed standard military vehicles for Toyotas, learned the art of concealment, and did their best to exploit [Rules of Engagement – ROE] limitations set in place to protect nonmilitary personnel, infrastructure, schools, and mosques. Using a restricted fire line aided aircrews in knowing where within the ROE they could engage without CFAC approval. Conversely, the CFAC had to approve targets on the restricted side of the restricted fire line. Whether aircrews or CFAC approved, due to the fluidity of the battlespace, limited [Intelligence, Surveillance and Reconnaissance – ISR] assets, and the strategic nature of every bomb, leadership and aircrews exhaustively weighed each engagement decision. The U.S. decision to allow employment of the Hellfire II missile from MQ-1 Predators helped immensely. Remotely piloted aircraft with precise small weapons were an invaluable asset when attacking targets difficult to find or strike, or targets that required heavy scrutiny to ensure ROE requirements. […]

 

B. NATO’S LESSONS FROM LIBYA

 

[Source: John A. Tirpak, Lessons From Libya, 2011, Air & Space Forces Magazine, available at https://www.airandspaceforces.com/article/1211libya/]

 

NATO’s choice of weapons

[…]

The pace of NATO’s intelligence-surveillance-reconnaissance sorties had remained fairly even throughout the operation, said Lt. Gen. Ralph Jodice II, but the numbers of kinetic missions ebbed and flowed. Jodice acted as combined air component commander for NATO. As Qaddafi’s area of control diminished, so did NATO strikes, and the Oct. 20 convoy attack marked the last strike mission. Unified Protector was shut down Oct. 31. […]

 

Jodice, however, said, “We had all the assets that we needed; that included munitions. I never once had to cancel or postpone a sortie because I didn’t have the right munitions that I needed.” Jodice did acknowledge that he was not involved in facilitating ad hoc arms transfers under the Foreign Military Sales program.

 

“We used precision munitions 100 percent of the time,” Jodice noted, adding, “I don’t know that that can be said about any other operation.”

 

He also described an excruciating sequence of steps and checks applied to all strike missions to prevent civilian casualties and collateral damage. Targets were first identified using the large ISR platforms, such as Rivet Joint and [Northrop Grumman E-8 Joint Surveillance Target Attack Radar System – JSTARS]. Then the rules of engagement were applied; strikes were called off if there could be unintended damage. If the pilots on the scene confirmed the target, it could be struck, but only with weapons offering “the lowest yield” of explosive effect, Jodice said.

 

“When we [needed] to strike something, it was done with the utmost precision,” he said. […]

 

C. NATO DELAYS AIRSTRIKE AND ASKS CIVILIANS TO MOVE AWAY FROM MILITARY INSTALLATIONS

 

[Source: NATO’s Press Briefing, NATO delays airstrike, asks civilians to move away from military installations, 24 April 2011, available at https://www.nato.int/cps/en/natolive/news_72885.htm]

 

Operational precision

NAPLES -- NATO destroyed an SA-8 surface-to-air missile yesterday evening at 2040 GMT in Tripoli using the Predator Unmanned Aerial Surveillance weapon system. The operators of the Predator were able to detect a number of civilians playing football near the missile and firing was delayed until the people had dispersed.

 

“This Predator strike is a perfect example of the complex and fluid situation that NATO air forces are facing every day as part of Operation Unified Protector. NATO will continue to do everything in its power to prevent harm to the civilian population,” said Rear Admiral Russ Harding, Deputy Commander of Operation Unified Protector. “Predator drones enhance NATO’s ability to strike with care and precision.” 

 

“These strikes will continue and we ask civilians in the affected regions to distance themselves from Qadhafi regime forces, installations and equipment whenever possible so we can strike with greater success and with the minimum risk to civilians,” said Rear Admiral Harding. […]

 

D. UNSC RESOLUTION 1973

 

[Source: UNSC Resolution 1973 (2011), available at https://www.nato.int/nato_static/assets/pdf/pdf_2011_03/20110927_110311-unscr-1973.pdf]

 

The Security Council, […]

Expressing its determination to ensure the protection of civilians and civilian populated areas and the rapid and unimpeded passage of humanitarian assistance and the safety of humanitarian personnel […]

 

Acting under Chapter VII of the Charter of the United Nations,

 

1. Demands the immediate establishment of a cease-fire and a complete end to violence and all attacks against, and abuses of, civilians; […]

 

Protection of civilians

 

4. Authorizes Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory, and requests the Member States concerned to inform the Secretary-General immediately of the measures they take pursuant to the authorization conferred by this paragraph which shall be immediately reported to the Security Council; […]

 

E. NATO’S CAMPAIGN IN LIBYA

 

[Source: Rob Weighill and Florence Gaub, ‘The war begins – and NATO thinks about it’ in Weighill and Gaub (eds), The Cauldron: NATO’s Campaign in Libya (2018) available at  https://academic.oup.com/book/8980/chapter-abstract/155322171?redirectedFrom=fulltext&login=false]

 

The conduct of hostilities through the mandate

[…]

To NATO, the protection of civilians was at the heart of the OUP mandate and influenced the development of the operational plans, the rules of engagement, target sets, the targeting methodology and the conduct of operations—in fact all aspects of the operation. Any suggestion that the lives of civilians could be sacrificed in furtherance of the mission specifically mandated to protect them was considered not just illegal but also immoral and was rejected in the direction that no target, deliberate (identified and cleared before the sortie) or dynamic (targeting based on information found during the sortie or, as Bouchard put it, ‘the hunt’), could be struck unless the expectation of civilian casualties could be mitigated to zero. (On average, 65% of NATO’s missions were dynamic and 35% deliberate.) While it is always mandatory for the military to distinguish between combatants and civilians taking no direct part in hostilities, the law of armed conflict recognizes that civilians may be killed or injured as a result of a lawful attack if such deaths are considered proportionate to the direct military advantage anticipated.

 

But the North Atlantic Council’s decision to apply a zero civilian casualty stipulation into the no-fly zone concept of operations took this to an entirely new level: precisely because the operation was about the protection of civilians, there would be no military advantage in accepting civilian casualties. In purely operational terms, this represented a significant operational constraint on NATO’s potential freedom to target Gaddaffi’s forces if the civilian population was being threatened and required protection, but without being at risk of being accidentally killed by NATO. […]

 

The most important outcome of this ‘zero casualty’ policy was in the development of the operational design. […]

 

The legal and moral threads tied together UNSCR 1973, NATO’s end state, military strategic and operational objectives, key decisive conditions and effects, all of which were written into the operational design, shaped every action, activity and joint operation on OUP. In theory, not a single target was struck unless to protect civilians. In addition, they could not be engaged unless every effort had been made to reduce the prospect of civilian casualties to zero.

 

The conclusion? That the operational design produced during the planning provided the operational foundation upon which every single dynamic and deliberate strike mission was planned and executed—to protect civilians. Unless a pilot, aircraft systems weapons operator, the naval captain of a ship with guns or a naval gunfire support officer could qualify their respective missions with the overriding effect to protect civilians, the target would not be struck. This philosophy—or operational art—was central to the way operations were planned and conducted in the operation—the requirement to focus on ends, not the ways and the means. […]

 

F. NATO’S CORRESPONDENCE TO THE INTERNATIONAL COMMISSION OF INQUIRY

 

[Source: OHCHR, Correspondence from NATO to the International Commission of Inquiry on Libya, 23 January 2012 available at https://www.ohchr.org/sites/default/files/Documents/HRBodies/HRCouncil/RegularSession/Session19/A.HRC.19.68.pdf ]

 

[…] international humanitarian law is the lex specialis applicable to armed conflict; that body of law is intended to minimize harm to civilians. lt does so in large part through principles of distinction, proportionality and military necessity designed to ensure that the risk to civilians is not excessive in relation to the military advantage anticipated. Strict compliance with these requirements was of obvious importance in a case such as OUP, where a core purpose of the Security Council's mandate authorizing use of "all necessary measures" - and thus the essential military objective - was itself to protect civilians and civilian areas from attack or threat of attack, in particular by their own government. NATO believes that its attentiveness during the course of OUP to a rigorous implementation of the rules of that body of law - and, indeed, to a standard exceeding what was required under international humanitarian law – contributed significantly to an extraordinarily low incidence of harm to civilians and civilian property.

 

The conduct of Operation Unified Protector was highly successful, both overall in protecting the civilian population of Libya and in implementation of an operational approach which minimized harm to civilians. Although no complex campaign can exclude that civilians suffer harm during its course, NATO deeply regrets any such harm that may have been caused by those strikes. […]

 

The OUP targeting policy was designed and implemented with the Security Council mandate to "protect civilians and civilian-populated areas under threat of attack" firmly at its core. The overriding objective throughout the campaign was to avoid any harm to civilians. Not one of the targets struck, involving over 7700 weapons, was approved for attack, or in fact attacked, if either those designating and approving the target or the pilot executing it had any evidence or other reason to believe that civilians would be injured or killed by a strike. As explicitly directed in the Operation Plan for OUP as approved by the North Atlantic Council, no civilians and no specific individual, civilian or military, were ever intentionally targeted in that operation.

 

Rigorous procedures were in all cases followed for approving both "deliberate" (i.e., pre-planned) and "dynamic" strikes (i.e., strikes on targets that presented themselves during the course of a mission) to ensure that there was a "zero expectation" of death or injury to civilians.

 

In determining which targets should and could be struck, intelligence from all available sources (including signals intelligence, imagery and other sources) was obtained and analyzed to ensure its continued accuracy and to confirm that civilians were not inadvertently put at risk. In appropriate cases, as much as fifty hours of airborne video observation was conducted and analyzed before a strike was authorized. The potential for harm to civilians was carefully assessed with respect to each proposed target, including before authorizing "re-strikes" of targets following an unsuccessful or partially unsuccessful attack or when regime forces were observed re-using a previously struck facility. […]

 

Equally rigorous procedures were followed with respect to strike execution. Through leaflets and other means, general and location-specific warnings to the civilian population were repeatedly made in order to advise them to avoid areas likely to be struck. The day of the week, time of day or night (notably during Ramadan), on occasion even the direction of attack were all carefully considered to minimize any risk of civilian casualties. […] In preparing for individual missions, planners consistently employed the minimum sized munitions necessary to accomplish the military objective: on numerous occasions multiple munitions with lower blast radius, rather than fewer munitions or even a single larger one, were employed to ensure that the blast and ejection radius did not include civilian areas or other risk to civilians. AII aerial munitions employed in OUP were precision-guided, and the type of precision guidance (e.g., GPS- or laser-guided) was selected to maximize accuracy in light of local conditions at the time. (A limited number of strikes involved use of direct-fire munitions, which are under the direct control of pilots and of comparable accuracy to precision-guided munitions.) In many cases special measures were taken to increase the ability of commanders and pilots to assess whether civilians were present up virtually to the moment of attack. For certain strikes near civilian areas, for example, essentially contemporaneous airborne video observation was required before a target was struck. With respect to deliberate naval fires. all salvoes were fired under positive control, with the fall of shot observed by spotters embarked in aircraft. Many attacks were called off, including some at the last minute, in order to avoid striking those whom NATO was mandated to protect. […]

 

As a result of all the precautions taken, NATO is convinced - and considers that the record of OUP amply demonstrates - that the targeting and strike methods employed in OUP were as well-designed and as successfully implemented to avoid civilian casualties as was humanly and technically possible. […]

 

The scale of the use of precision-guided munitions during this campaign is unprecedented; due to their increased precision, such weapons dramatically reduce the risk of collateral damage, both because they require greatly reduced explosive effect to achieve their purpose and because they are less likely to cause unintended damage by hitting the wrong location.

 

The minimum-sized weapon required to achieve the military objective and consistent with the "zero expectation of civilian casualties" targeting criterion was used on all occasions. The great majority of weapons were fitted with delayed fusing, thereby further minimizing risk to civilians who might have been in the vicinity of the target. We can confirm that no incendiary or obscuring (white phosphorus) munitions were used during OUP. […]

 

Discussion

 

I. Classification of the situation and applicable law

1. How would you classify the situation in Libya before the launch of Operation Unified Protector? What additional information would you need to make such a determination? (GC I-IV, Art 3; P II, Art. 1)

 

2. Does NATO’s involvement in Libya affect the classification of the situation? Was NATO a party to the conflict? Under which conditions an international organisation can be a party to an armed conflict?   

 

II. Conduct of hostilities and precautions in attack

3. Is it prohibited to launch an attack against a military objective because it is situated among the civilian population? Are the armed forces required to take further steps before striking? (CIHL Rules 7, 14-21; P I, Arts 48, 52(2), 51(5)(b), 57)

 

4. Does the presence of civilians automatically render a military operation illegal? If there are civilian casualties, does this automatically violate IHL? Is a ‘zero casualty policy’ mandated by IHL? (CIHL Rules 1, 7, 14, 15, 18; P I, Arts 48, 51, 52, 57)

 

5. Is the use of precise-guided munitions always required by IHL? Should the fact that military operations are conducted in urban areas affect the choice of weapons by the parties to an armed conflict? (CIHL, Rules 7, 17)

 

6. (Document A, Document B and Document F) Which are the precautionary measures adopted by NATO during OUP? Did they go beyond what is required by IHL? (CIHL Rule 16, 17, 19; P I, Art 57)

 

III. Elements contributing to respect for IHL

7. (Document A) Why did the coalition assess the situation before every attack? Does the targeting strategy have any implications on the legitimacy and efficiency of OUP? (Document A) What could an added value be when adopting a “zero-casualty” policy in terms of support for the mission by the public opinion of participating states and international actors?

 

8. What is the role of the Rules of Engagement (ROE)? Is there an obligation to set them up before any military operation?

 

9. (Document D and E) What are the reasons to adopt a “zero-casualty” policy? Is it realistic to expect to have no civilian casualties? Does IHL mandate such policy? What are the reasons that led NATO to introduce such policy? What was the role played by UNSC Resolution 1973 in adopting this approach?

 

10. (Document F) What were the role and functions of the Commission of Inquiry set-up by the Human Rights Council? Why did NATO engage with it? How can Commissions of Inquiries and other similar bodies contribute to the respect of IHL?