The Art of Facts

A LEGAL BLOG about Fact-finding and Armed ConflicTS

Fact-Finding and proving direct attacks against civilians: ‘Double tap’ as the ‘smoking gun’?

In the field of fact-finding on alleged violations of IHL, establishing cases of direct attacks against civilians, civilian objects or against specially protected persons or objects, such as medical staff, rescue workers and hospitals, is a recurring challenge for investigators. Making a factual finding that certain incidents amount to indiscriminate attacks, such as those not directed at a specific military objective, can of course in itself raise evidentiary and legal issues. However proving that incidents amount to deliberate attacks against civilians is even more complicated. This is partly due to the fact that the rule on the prohibition of making civilians the object of attack is somehow linked to proving some form of intent, even within the limited realm of IHL without considering the international criminal law framework. The reference to the expression ‘object of attack’ would refer to a deliberate act.

As a result, establishing facts around such allegations always raises methodological difficulties when it comes to proving that attacks were directed against civilians on purpose. Unsurprisingly, investigators in those cases proceed through inferences, drawing conclusions from a series of facts on the absence of any reason justifying the attacks. For example, central to the work of the 2009 UN Fact-Finding Mission on the Gaza Conflict, the question as to whether some incidents amounted to direct attacks against civilians was addressed in the following terms by the Mission:

The Mission found that, on the basis of the facts it was able to ascertain, in none of the cases reviewed were there any grounds which could have reasonably induced the Israeli armed forces to assume that the civilians attacked were in fact taking a direct part in the hostilities and had thus lost their immunity against direct attacks (para. 811).

In this very brief post I just wanted to put this issue in perspective through a specific case that appeared in the news. Last week, the UK Foreign Secretary claimed that Russia is violating its IHL obligations in Syria by conducting return raids, which show that it deliberately targets civilians and rescue workers. He stated:

“The Russians are deliberately attacking civilians, and the evidence points to them deliberately attacking schools and hospitals and deliberately targeting rescue workers. “If you go back for a second strike you know what you are doing.”

The question arises whether this practice, also coldly known as ‘double tap’, could in itself prove that second strikes constitute intentional direct attacks against civilians or other persons enjoying special protection. While it obviously depends on the facts of each case, incidents of ‘double tap’ may offer stronger cases to establish deliberate attacks on civilians.

As such return raids or rounds of strikes are not prohibited under IHL. Provided that the first strikes are directed at a legitimate military objective and that other obligations under the principles of proportionality and precaution are met, another round of strikes may be justified to neutralise the target.

However, one may consider a higher presumption of IHL violations depending on the context. By definition, if a first air strike complied with IHL rules, one may expect that rescue workers or other medical staff would rush to the scene to provide assistance. It is even more so in densely populated areas like in Syria, where both rescue workers and civilians would intervene right after the first strike. From a legal point of view, this change of circumstances on the ground would place greater obligations on the attacker to minimise harm to civilians, including by assessing whether the second strike violates the proportionality rule.

So if in itself a second strike isn’t the ‘smoking gun’ as a conclusive evidence of a violation, establishing facts of alleged direct attacks against civilians in the context of ‘double taps’ could be easier in practice.

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