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城市目标选择中的平民保护

军事目标附近有平民或受保护建筑,并不会使他们成为合法攻击目标。攻击方必须核实军事目标、评估预期附带伤害、采取可行预防措施,并遵守关于医院和警告的特别规则。

Miriam Bernstein

Miriam Bernstein 是 Hasbara 资源 编辑部的笔名。每篇文章均有来源并附引用。

A military objective located in a town remains subject to distinction, proportionality, and precaution rules. Its location among civilians does not make civilians targetable or remove the attacker’s duties. Hamas’s unlawful use of civilian presence to shield military operations violates IHL, but the defender’s conduct does not increase the attacker’s military advantage or cancel civilian protections.

Human shields do not cancel the attacker’s duties

Article 51(7) of Additional Protocol I prohibits using civilians to shield military objectives, and Article 51(8) expressly says that violations do not release any party from its obligations toward civilians. The ICRC likewise identifies the prohibition in its customary IHL rule on human shields. An attacker must still assess expected civilian harm, verify the target, and take feasible steps to minimize harm.

For a tunnel or other military objective beneath a populated area, the legal questions remain concrete: what military objective is being attacked, what incidental harm is expected, what advantage is anticipated, and what feasible means or timing could reduce civilian danger? Underground location alone answers none of these questions.

Hospitals have additional protection

Medical units must be respected and protected. Under Article 13 of Additional Protocol I, civilian medical units lose that protection only if they are used, outside their humanitarian function, to commit acts harmful to the enemy; protection ceases only after a warning setting a reasonable time limit has gone unheeded, where appropriate. Article 19 of the Fourth Geneva Convention similarly specifies acts harmful to the enemy and a warning that remains unheeded. A hospital does not lose protection merely because wounded combatants receive treatment there.

Schools do not receive the hospital-specific rule requiring a warning before protection ceases. Under Article 52 of Additional Protocol I, they remain civilian objects unless, by their nature, location, purpose or use, they make an effective contribution to military action and their destruction, capture or neutralization offers a definite military advantage in the circumstances. Even then, civilian protections and proportionality still apply.

Warnings are a precaution, not a permission slip

Article 57 calls for effective advance warning of attacks that may affect civilians unless circumstances do not permit. A warning must be assessed for effectiveness in the circumstances, including whether people can receive and act on it. Giving a warning does not turn civilians who remain into lawful targets and does not remove the proportionality test. The attacker must still cancel or suspend an attack if it may cause excessive expected harm.

来源

  1. 1.https://ihl-databases.icrc.org/en/ihl-treaties/api-1977/article-51
  2. 2.https://ihl-databases.icrc.org/en/ihl-treaties/api-1977/article-57
  3. 3.https://ihl-databases.icrc.org/en/customary-ihl/v1/Rule97
  4. 4.https://ihl-databases.icrc.org/en/ihl-treaties/api-1977/article-52
  5. 5.https://ihl-databases.icrc.org/en/ihl-treaties/api-1977/article-12
  6. 6.https://ihl-databases.icrc.org/en/ihl-treaties/api-1977/article-13
  7. 7.https://ihl-databases.icrc.org/en/ihl-treaties/gciv-1949/article-19
  8. 8.https://ihl-databases.icrc.org/en/customary-ihl/v1/rule20