Declaration on Foreseeable Harm to Innocents

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A Political Declaration on the Protection of Civilians from Foreseeable Harm in Armed Conflict

The States, international organisations, and other entities endorsing this Declaration,

Recalling the purposes and principles of the Charter of the United Nations,

Reaffirming the rules of international humanitarian law, including the Geneva Conventions of 1949 and their Additional Protocols, which establish the fundamental principles of distinction, humanity, precaution, and proportionality in the conduct of hostilities,

Mindful of the Martens Clause, which provides that in cases not covered by specific treaty provisions, civilians remain under the protection of the principles of humanity and the dictates of public conscience,

Recognising that technological developments — especially in intelligence, surveillance, reconnaissance, targeting, and precision weapon systems — have transformed the conduct of hostilities, rendering civilian presence increasingly visible, predictable, and avoidable,

Concerned that existing doctrines relying on the distinction between intended and foreseen civilian harm no longer adequately protect civilians in modern conflict,

Alarmed by increasing civilian casualties, including deaths of children, arising from airstrikes, drone operations, artillery fire, and explosive weapons in populated areas, in circumstances where such casualties were foreseeable and avoidable,

Affirming that the requirements of "constant care" and "all feasible precautions" under Article 57 of Additional Protocol I, properly interpreted, impose substantive duties to prevent foreseeable harm to persons identifiable as civilians foreseeably at risk,

Noting that nothing in international humanitarian law prevents States from adopting standards more protective of civilians than the minimum required,

Recalling the principle, recognised in just war tradition and reflected in modern human rights jurisprudence, that combatants must accept risk rather than transfer it to civilians where doing so is feasible,

Emphasising the particular vulnerability of children and the urgent responsibility to protect them from foreseeable harm,

Convinced that accountability and transparency are essential to maintaining the integrity and legitimacy of the law of armed conflict,

Hereby affirm the following Declaration, which articulates obligations arising under existing international humanitarian law:

PART I — GENERAL PROVISIONS

Article 1 — Purpose, Scope, and Application

1. This Declaration articulates the Principle of Harm to Foreseeable Innocents (FHI) as a further - protective interpretation of existing obligations under the Geneva Conventions and Additional Protocol I, designed to strengthen the protection of civilians from foreseeable harm in the conduct of hostilities.

2. This Declaration applies during international and non - international armed conflicts as defined in international humanitarian law.

3. This Declaration applies to all attacks, whether conducted within or outside the territory of an endorsing entity, including drone strikes, airstrikes, artillery fire, special operations, and any other use of force where the attacking party is bound by this Declaration.

4. Nothing in this Declaration diminishes or derogates from obligations under the Geneva Conventions, the Additional Protocols, customary international humanitarian law, or international human rights law.

5. Endorsing entities undertake to respect and promote these standards and to encourage their adoption by all parties to armed conflict, including non - state armed groups.

Article 2 — Definitions

For the purposes of this Declaration:

1. Person identifiable as civilian means any person not directly participating in hostilities whose presence, likely presence, or predictable presence at the time of attack is known or reasonably ascertainable through available intelligence, surveillance, reconnaissance, pattern - of - life analysis, sensor platforms, environmental assessment, contextual inference, or other feasible means of verification.

2. Foreseeable risk means reasonably grounded expectation, based on available information and capacities, that a person identifiable as a civilian will be killed or suffer serious injury if the attack proceeds.

3. Avoidable harm means civilian harm that can be prevented or substantially reduced through feasible alternatives, assessed in light of the attacker’s actual capabilities, including ISR, precision, operational flexibility, and available means.

4. Feasible means that which is practicable or practically possible, taking into account all circumstances prevailing at the time, including humanitarian and military considerations.

5. Feasible alternatives means tactical, temporal, positional, operational, or non - kinetic measures that are practicable under the circumstances and reasonably expected to reduce or eliminate foreseeable harm to identifiable civilians without negating the legitimate military purpose. Obligations scale with capacity: forces with greater ISR, precision, and analytic ability bear correspondingly thicker duties.

6. Capacity - Indexed Obligations means precautionary duties whose scope expands in proportion to the intelligence, surveillance, reconnaissance, and precision - targeting capabilities actually available to the attacking party. The standard rises with capability: the more advanced the attacker’s ISR, sensor, and precision capabilities, the more stringent the precautionary measures, verification duties, and avoidability obligations become.

7. Avoidable Harm means civilian harm that can be eliminated or substantially reduced through feasible alternatives, as determined by the two-stage avoidability test set out in Article 5(2) and (3).

8. Attack means any act of violence against the adversary, whether in offence or defence, including the use of kinetic force, and excludes cyber operations and other activities not expected to cause death, injury, or physical destruction.

9. Unlawful risk transfer means the shifting of risk from combatants to persons identifiable as civilians where combatants could reasonably bear such risk through feasible alternatives, including changes in timing, weapon selection, munition size, approach vector, platform, or method of engagement.

10. Military advantage means concrete and direct military gain from an attack considered as a whole, and does not include advantages that are merely potential, indeterminate, or speculative.

11. Commander means any person with authority to plan, approve, direct, or oversee an attack.

12. Emergency override means a narrowly defined exception to Articles 3 - 6 applying only when a mass - casualty attack against civilians is expected within a short and definite timeframe, no feasible alternative exists, and immediate action is required to prevent catastrophic harm.

PART II — SUBSTANTIVE OBLIGATIONS

Article 3 — The Principle of Foreseeable Harm to Innocents

1. Attacks shall not be launched where persons identifiable as civilians face a foreseeable risk of death or serious injury, except where the strict conditions of Article 6 are satisfied.

2. The protections of this Article do not apply to persons who are directly participating in hostilities for such time as they so participate. Determination of direct participation shall be made in accordance with applicable international humanitarian law. Where doubt exists as to whether a person is directly participating in hostilities, that doubt shall be resolved in favour of civilian status.

3. The presence or likely presence of persons identifiable as civilians whose presence makes harm foreseeable establishes a presumption against attack This presumption may be overcome only where harm is genuinely unavoidable after all feasible alternatives have been exhausted through the two - stage avoidability test set out in Article 5(2) and (3), and, in cases where proportionality cannot justify the operation, only where the emergency override provisions of Article 8 are satisfied.

4. FHI makes explicit what the requirements of "constant care" and "all feasible precautions" under Articles 57(1) and 57(2) of Additional Protocol I already demand: foreseeable and avoidable harm to persons identified as civilians is prohibited. For the avoidance of doubt, avoidability is determined through the two - stage avoidability test set out in Article 5(2) and (3), and is assessed by reference to the information, verification tools, and operational alternatives reasonably available to the relevant decision - maker at the time of the attack.

5. The proportionality assessment under Article 51(5)(b) of Additional Protocol I remains applicable. FHI interprets that assessment to require that foreseeable harm to persons identifiable as civilians, where avoidable, is inherently excessive in relation to military advantage.

Article 4 — Duty to Verify Civilian Presence

1. Those who plan or decide upon an attack shall take all feasible measures to verify whether civilians are present in or near a potential target. Verification duties are capacity - indexed: forces with greater ISR, precision, and analytic capability must take correspondingly more extensive verification measures.

2. Feasible verification measures include, as circumstances permit:

(a) intelligence analysis from multiple sources;

(b) real - time surveillance and reconnaissance;

(d) collateral damage estimation;

(e) consultation with personnel possessing local knowledge; and

(f) use of available sensor platforms and data fusion.

3. Where doubt exists as to whether a person is a civilian, that person shall be presumed to be a civilian. Where doubt exists as to whether civilians are present, that doubt shall be resolved in favour of civilian protection.

4. Failure to take feasible verification measures constitutes a violation of this Declaration and may give rise to liability under Article 11.

5. Verification obligations are capacity - indexed: where advanced ISR, sensor, or reconnaissance capabilities are available, failure to employ them constitutes a violation of this Declaration.

Article 5 — Duty to Avoid or Reduce Harm and Reallocate Risk

1. Where identifiable civilians are present or likely present, commanders shall apply the two-stage avoidability test set out in paragraphs (2) and (3) before any attack may proceed.

2. Stage 1 — Elimination. Commanders shall first determine whether any feasible alternative could eliminate the foreseeable risk to persons identifiable as civilians while still achieving the legitimate military objective. Feasible alternatives include:

(a) adjusting the timing of the attack;

(b) selecting alternative weapons, munitions, or methods;

(d) repositioning the platform;

(e) postponing or cancelling the attack;

(f) employing non - kinetic means of disablement; and

(g) where capture is feasible and consistent with the law of armed conflict, substituting capture for lethal force.

Where any such alternative would eliminate the foreseeable harm, the attack should not proceed unless that alternative is adopted.

3. Stage 2 — Substantial Reduction. If no feasible alternative could eliminate the foreseeable harm, commanders shall then determine whether any feasible alternative or combination of alternatives could substantially reduce the foreseeable harm without negating the legitimate military objective. Where substantial reduction is possible, the attack should not proceed unless the harm-reducing alternative is adopted.

4. Where precautions under paragraphs (2) or (3) would significantly reduce civilian harm but increase risk to combatants, operational risk shall be reallocated away from civilians and borne by combatants to the extent feasible, provided that the resulting risk remains within the bounds of operational reasonableness and does not require near - certain death, mission collapse, or loss of effective control.

5. Operational convenience, force protection, cost, efficiency, or political considerations shall not justify exposing identifiable civilians to foreseeable harm.

6. Duties under this Article are capacity - indexed: forces with greater ISR, precision, and operational flexibility must adopt proportionately more protective measures.

Article 6 — Prohibition of Foreseeable and Avoidable Harm

1. An attack is prohibited where identifiable civilians face a foreseeable risk of death or serious injury and such harm is avoidable through feasible alternatives.

2. Foreseeable and avoidable civilian harm is inherently excessive in relation to anticipated military advantage and is prohibited.

3. An attack is only lawful if the following conditions are met in sequence:

(a) Verification:All feasible measures, scaled to actual ISR and analytic capacity, have been taken to determine whether identifiable civilians are present or likely present.

(b) Foreseeability:If identifiable civilians are foreseeably at risk, the attack is presumptively prohibited.

(c) Avoidability:The presumption may be overcome only if the commander demonstrates that foreseeable civilian harm is genuinely unavoidable - meaning no feasible alternative exists that would eliminate or substantially reduce the harm while still achieving the legitimate military purpose.

(d) Proportionality:Only where foreseeable harm is genuinely unavoidable may proportionality analysis under Article 51(5)(b) of Additional Protocol I proceed.

4. The attacker’s subjective intent does not determine lawfulness under this Declaration. What matters is what the attacker knew or reasonably should have known, and what they were capable of doing, with available means, to avoid foreseeable harm

Article 7 — Human Shields and the Allocation of Responsibility

1. This Declaration addresses the problem of human shields—the deliberate placement or retention of civilians in proximity to military objectives to exploit IHL protections—through a responsibility allocation principle that preserves the framework’s protective logic without creating perverse incentives.

2. Human shielding by a party to the conflict violates Article 51(7) of Additional Protocol I, Article 58, and constitutes a war crime under Article 8(2)(b)(xxiii) of the Rome Statute. The defender who shields is the primary author of the civilian risk.

3. Voluntary shields. Persons who voluntarily and deliberately position themselves to protect military objectives from attack are directly participating in hostilities for such time as they do so. They do not qualify as “persons identifiable as civilians” for purposes of the presumption under Article 3, though the attacking party retains an obligation to verify their status and intent before treating them as participants. This classification applies only where the individual’s conduct is intended, by its nature and purpose, to directly impede or defeat a specific military operation, and only for such time as that conduct persists

4. Involuntary shields. Civilians forced, coerced, or prevented from leaving the vicinity of military objectives retain full civilian status. The shielding party’s unlawful conduct does not extinguish the attacking party’s precautionary obligations under Article 51(8) of Additional Protocol I. However, the avoidability analysis under Article 2(7) takes into account:

(a) that the defender’s unlawful act created the conditions of civilian risk;

(b) whether the attacker has taken all feasible precautions to minimise harm given the circumstances the shielding has created;

(c) whether alternatives exist that do not reward the shielding conduct by granting indefinite immunity to the military objective; and

(d) the period for which immunity has already been extended while alternatives were pursued.

5. Responsibility allocation. Where an attack proceeds after exhausting feasible precautions, moral and legal responsibility for resulting civilian harm may be attributed primarily to the shielding party for the purposes of responsibility assessment, provided the attacker’s conduct satisfied the procedural requirements of this Declaration. This allocation does not eliminate the attacker’s obligation to document compliance or the availability of post - strike review.

6. Limits. The presence of human shields does not suspend proportionality. An attack causing civilian harm grossly disproportionate to the concrete and direct military advantage anticipated remains unlawful regardless of how the civilians came to be present. Nor does shielding invoke the emergency override under Article 8; the override addresses imminent mass - casualty scenarios, not the routine complication of military objectives by civilian presence.

PART III — EMERGENCY OVERRIDE

Article 8 — Emergency Override

1. The emergency override may be invoked only where all of the following cumulative conditions are satisfied:

(a) Imminence and scale. A specific mass - casualty attack against civilians is imminent, meaning that harm will occur within a timeframe that forecloses alternatives. Ordinarily this means minutes or hours, not days. In exceptional circumstances involving an identifiable and irreversible causal chain already in motion, a somewhat longer window may qualify - but 'imminent' does not extend to threats measured in days, contingent on future decisions by the adversary, or dependent on uncertain intervening events. The scale must constitute a mass - casualty event—casualties of a magnitude that would constitute a mass atrocity rather than an individual tragedy. For the avoidance of doubt, the threshold contemplates deaths in the tens, hundreds, or thousands; it does not apply to scenarios involving single - digit casualties, however regrettable. Speculative, conditional, or temporally remote harms do not qualify.

(b) No feasible alternative. No tactical, temporal, positional, operational, or non - kinetic alternative exists to avert the imminent threat; the contemplated strike is the only means by which the mass - casualty event can be averted. All alternatives must have been considered and rejected on documented grounds.

(c) Unavoidability confirmed. Foreseeable harm to persons identifiable as civilians is genuinely unavoidable as determined through the two - stage avoidability test set out in Article 5(2) and (3), not merely inconvenient to avoid.

(d) Decisive asymmetry. The expected civilian casualties from the strike must be substantially lower - by a very large margin - than the civilian casualties that would result from the imminent threat. This is not the military - advantage - to - civilian - cost calculus that proportionality permits and that FHI constrains; it is a civilian - to - civilian comparison in which the sole question is whether fewer innocents die. The asymmetry must be stark, not marginal: the override does not permit finely balanced trade - offs between civilian lives.

(e) Irreversibility. The threatened mass - casualty event cannot be mitigated by subsequent action. If later intervention could prevent or reduce the harm, immediate action causing civilian casualties is not justified.

(f) Intelligence reliability and epistemic access. The intelligence supporting the threat assessment is current, corroborated by multiple sources where feasible, and highly reliable. The attacking authority must have had timely access to such intelligence sufficient to recognise the imminence and scale of the threatened mass - casualty harm. The override does not contemplate action on speculative, single - source, or uncorroborated intelligence, notwithstanding time pressure. Where intelligence is uncertain, the override is unavailable - a constraint that may, in some cases, mean the override cannot be invoked even when decision - makers believe the threat is real. This is by design: the cost of erroneous invocation falls on innocents who had no part in creating the threat.

(g) Highest - level authorisation. The attack is authorised by an authority designated in advance for emergency override decisions, at the highest level practicable under the circumstances. Endorsing States shall specify prospectively which command levels are authorised to invoke the override, with default authority resting at the highest operational level - ordinarily theatre command or national command authority. The designation must be prospective: an override cannot be validated by subsequent ratification from higher authority. Where time permits consultation with higher command, such consultation is required; invocation at lower levels is justified only where the imminence of the threat genuinely forecloses escalation.

(h) Contemporaneous documentation and automatic review. The commander must record, at the time of the decision, the factual basis for invoking the override, including the intelligence supporting the mass - casualty assessment, the alternatives considered and rejected, and the basis for the asymmetry calculation. Independent post - strike review is automatically triggered. False invocation or abuse of the override constitutes a grave violation under Article 11(1)(d), potentially attracting individual criminal responsibility; failures of documentation fall within Article 11(1)(e) or Article 11(4)(d), attracting criminal or administrative consequences respectively.

2. These conditions are cumulative, not alternative. They shall be interpreted narrowly.

3. The emergency override may not be invoked for:

(a) high - value target elimination as such - the override addresses the harm being prevented, not the value of the individual being targeted; an HVT who is actively directing an imminent mass - casualty attack may in some circumstances satisfy the override conditions, but only because a mass - casualty attack on civilians is imminent and the other conditions are met - not because eliminating the target is strategically desirable;

(b) strategic degradation of enemy capabilities;

(d) political considerations;

(e) preventing speculative or future harm; or

(f) targets of opportunity.

4. This provision is expected to apply rarely, if ever. Frequent invocation of the emergency override indicates either misapplication of its conditions or circumstances requiring doctrinal reassessment.

5. Invocation of the emergency override does not exempt the attack from subsequent review for compliance with these conditions.

PART IV — PROCEDURAL OBLIGATIONS

Article 9 — Documentation and Evidentiary Burdens

1. The attacking party bears the burden of demonstrating compliance with Articles 3 through 7.

2. Endorsing entities shall establish procedures to retain documentation relevant to targeting decisions, which shall include:

(a) surveillance and sensor recordings;

(b) targeting approval records and command authorisations;

(d) assessments of feasible alternatives considered;

(e) risk - allocation determinations;

(f) pre - strike legal advice; and

(g) relevant intelligence summaries;

(h) findings from Stage 1 and Stage 2 of the avoidability test under Article 5(2) and (3);(i) an assessment of the attacking party’s intelligence, surveillance, reconnaissance, and precision capabilities relevant to capacity - indexed obligations.

3. Documentation shall be retained for a minimum of ten years.

4. Documentation may be redacted to protect sources, methods, and operational security, but information essential to assessing legal compliance must be preserved and made available to competent investigative and oversight bodies.

5. Absence of documentation where it should have been retained shall give rise to an adverse inference regarding compliance.

6. Tampering, destruction, or manipulation of documentation shall give rise to a presumption of unlawful conduct.

Article 10 — Transparency and Post - Incident Review

1. Every incident involving civilian harm shall be subject to prompt, impartial, and effective review.

2. Findings of such reviews shall, to the extent consistent with operational security:

(a) be made public;

(b) be transmitted to domestic oversight bodies; and

3. Where violations are found, corrective measures, disciplinary action, or criminal proceedings shall follow as appropriate under Article 11.

4. Endorsing entities shall publish periodic aggregate data on civilian harm incidents, investigations conducted, and accountability measures taken.

Article 11 — Accountability

Tier 1 — Grave Violations (Criminal Responsibility)

1. Grave violations of international humanitarian law, as clarified by this Declaration, include:

(a) launching or authorising an attack in clear violation of Articles 3 or 6, where civilian presence was known or reasonably ascertainable;

(b) knowingly misrepresenting intelligence to secure approval for an attack;

(d) falsely invoking or abusing the emergency override;

(e) falsifying or destroying documentation required under Article 9; and

(f) failure by a commander to prevent or punish violations by subordinates where the commander knew or, owing to the circumstances, should have known that such violations were being or would be committed.

2. Grave violations may constitute war crimes under international law and shall be incorporated into national criminal law by endorsing States.

3. Nothing in this Declaration alters the standard of proof or procedural protections applicable in criminal proceedings under domestic or international law.

Tier 2 — Serious Violations (Administrative Responsibility)

4. Serious violations of this Declaration include:

(a) failure to take feasible verification measures under Article 4;

(b) failure to take feasible precautions under Article 5;

(d) failure to document targeting decisions as required by Article 9.

5. Serious violations trigger administrative review. In such proceedings, the operator or commander may be required to demonstrate that due diligence was exercised.

6. Consequences for serious violations may include:

(a) formal reprimand;

(b) mandatory retraining;

(d) loss of promotion eligibility;

(e) operational restrictions; or

(f) administrative separation.

PART V — REMEDIES FOR VICTIMS

Article 12 — Reparation for Victims

1. Civilians harmed in violation of these standards are entitled to effective remedy.

2. Effective remedy may include, as appropriate:

(a) acknowledgment of the violation and of the harm suffered;

(b) compensation for death, injury, or property loss;

(d) truth recovery and access to information; and

(e) assurances of non - repetition.

3. Endorsing entities shall establish accessible procedures for civilians to report harm and seek remedy, including procedures accessible to persons in conflict - affected areas.

4. The provision of condolence payments or other humanitarian assistance shall not be contingent upon a finding of legal violation and shall not constitute an admission of liability.

5. Condolence payments do not discharge the obligation to provide full reparation where a violation is established.

PART VI — RELATIONSHIP WITH INTERNATIONAL LAW

Article 13 — Relationship with Existing International Humanitarian Law

1. This Declaration constitutes a further - protective interpretation of existing obligations under Articles 51 and 57 of Additional Protocol I and corresponding customary international humanitarian law. The standards set forth herein represent the proper interpretation of existing treaty and customary obligations; endorsement is evidentiary of this understanding, not constitutive of new commitments.

2. This Declaration is consistent with the object and purpose of the Geneva Conventions and the Martens Clause.

3. Where this Declaration and other provisions of international humanitarian law address the same subject matter, the interpretation more protective of civilians shall prevail, consistent with the protection - favouring principle of IHL interpretation.

4. Nothing in this Declaration authorises conduct that would otherwise violate international humanitarian law or international human rights law.

PART VII — IMPLEMENTATION

Article 14 — Domestic Implementation

1. States shall give effect to these standards through appropriate domestic measures, recognising that such measures implement obligations already arising under Articles 51 and 57 of Additional Protocol I. These measures shall include:

(a) incorporating FHI standards into national legislation where appropriate;

(b) integrating FHI into military manuals, doctrine, and rules of engagement;

(d) ensuring that judge advocates and legal advisers are trained in and apply FHI standards; and

(e) ensuring that domestic oversight bodies supervise compliance.

2. States shall designate, in advance, the authority or authorities competent to authorise attacks under the emergency override provisions of Article 8.

3. FHI standards shall be applied in coalition operations to which they contribute forces.

4. Endorsing States are encouraged to consult the Model Implementation Guidelines adopted alongside this Declaration when developing domestic procedures.

Article 15 — Engagement with Non - State Armed Groups

1. All parties to armed conflict, including non - state armed groups, are bound by international humanitarian law and encourage such groups to respect the standards articulated in this Declaration.

2. States shall support efforts by the International Committee of the Red Cross, the United Nations, and other relevant actors to promote compliance with civilian - protection standards by non - state armed groups.

3. Unilateral declarations by non - state armed groups committing to respect FHI standards are welcomed and may be deposited with the Secretary - General of the United Nations.

4. Endorsement of or compliance with this Declaration by a non - state armed group shall not affect its legal status.

Article 16 — International Cooperation

1.States shall cooperate to promote implementation of this Declaration through:

(a) sharing best practices in targeting procedures and civilian harm mitigation;

(b) joint training programmes;

(d) support for international monitoring and reporting mechanisms; and

(e) coordination of investigative efforts where civilian harm incidents involve multiple parties.

2. States shall promote FHI standards within multilateral fora, including the United Nations, regional organisations, and international humanitarian law processes.

PART VIII — NORM DEVELOPMENT AND FINAL PROVISIONS

Article 17 — Judicial Consideration

1. Courts and tribunals, in interpreting and applying international humanitarian law, may have regard to this Declaration as evidence of how States understand their existing obligations regarding civilian protection.

2. This provision is declaratory and does not purport to bind any court or tribunal.

3. Litigants are encouraged, where appropriate, to draw the attention of courts to FHI standards in proceedings concerning civilian harm.

Article 18 — Norm Development

1. This Declaration reflects the proper interpretation of existing international humanitarian law. Consistent application will confirm and consolidate this interpretation and may contribute to its recognition as customary international law.

2. States are called upon to promote FHI through consistent state practice, official statements, and participation in international processes concerning the protection of civilians, recognising that these measures implement obligations already arising under Articles 51 and 57 of Additional Protocol I.

3. Nothing in this Declaration precludes the future negotiation of a binding treaty instrument incorporating FHI standards. States express their willingness to consider such an instrument when circumstances permit.

Article 19 — Endorsement, Review, and Amendment

1. This Declaration is open to endorsement by States, international organisations, and civil society actors. Endorsement signifies agreement that the standards herein represent the correct interpretation of existing international humanitarian law.

2. Endorsements shall be deposited with the Secretary - General of the United Nations, who shall maintain a public register of endorsing entities.

3. A review conference shall be convened within three years of the Declaration's adoption, and periodically thereafter, to assess implementation, consider amendments, address emerging challenges, and share best practices.

4. States commit to periodic reporting on measures taken to implement this Declaration.

5. This Declaration may be amended by consensus of endorsing States participating in a review conference.

6. Amendments shall enter into force for endorsing entities that accept them; other endorsing entities shall remain bound by the unamended text unless they notify their acceptance of the amendments.

Done at [place], on [date].

ANNEX: INTERPRETIVE GUIDANCE

The following guidance is provided to assist in the interpretation and application of this Declaration. It does not form part of the operative text.

On " persons identifiable as civilians whose presence makes harm foreseeable" (Article 2(1)): The standard is reasonableness, not omniscience. Commanders are expected to use the intelligence and surveillance capabilities actually available to them. The standard rises with capability: forces with sophisticated ISR bear greater verification obligations than forces with limited means.

On "feasible" (Article 2(5)): Feasibility is assessed in light of all circumstances, including operational tempo, available assets, and the military situation. However, feasibility is not to be conflated with convenience. An alternative that is more difficult, slower, or more costly may nonetheless be feasible.

On “avoidable harm” (Article 2(7)): The two - stage avoidability test requires commanders first to assess whether feasible alternatives could eliminate foreseeable harm and then whether they could substantially reduce such harm. This two - stage structure gives effect to capacity - indexed obligations and ensures that proportionality is reached only where harm is genuinely unavoidable.

On the exclusion of cyber operations (Article 2(9)): The exclusion of cyber operations from the definition of "attack" is without prejudice to future discussions on civilian protection in the cyber domain.

On the presumption against attack (Article 3(2)): The presumption is rebuttable only through the emergency override. The existence of a military objective does not, by itself, rebut the presumption where persons identifiable as civilians whose presence makes harm foreseeable are at risk.

Operational Summary (Articles 3, 6, and 7): In practical application, the rule operates as follows:

1. if identifiable civilians are foreseeably at risk, the attack must not proceed unless that harm is genuinely unavoidable.

2. If the harm is avoidable, the attack is unlawful.

3. If foreseeable harm is unavoidable, proportionality applies.

4. The emergency override may be invoked only for imminent mass - casualty threats meeting the strict conditions of Article 8.

On the sequencing of avoidability and proportionality (Articles 4 and 5): Where persons ascertainable as civilians are foreseeably at risk of death or serious injury, the obligation to identify and exhaust all feasible alternatives capable of eliminating or substantially reducing that harm is logically and legally prior to any proportionality assessment. Proportionality analysis under Article 51(5)(b) of Additional Protocol I arises only in respect of civilian harm that remains genuinely unavoidable after compliance with the duties of constant care and feasible precautions. Foreseeable civilian harm that could have been avoided through feasible alternatives may not be justified by reference to proportionality.

On human shields (Article 7): The human shields provision ensures that the Declaration’s protective framework cannot be exploited by parties who deliberately place civilians near military objectives. The distinction between voluntary and involuntary shields reflects the direct participation in hostilities doctrine: voluntary shields forfeit civilian protection for such time as they shield, while involuntary shields retain full protection. The four - factor avoidability analysis for involuntary shields - considering the defender’s role in creating risk, precautions taken, alternatives to rewarding shielding, and time already afforded - ensures that attacking parties cannot use shielding as a pretext to bypass precautionary obligations. Critically, the presence of human shields never suspends proportionality: grossly disproportionate attacks remain unlawful regardless of how civilians came to be present.

On risk reallocation (Article 5(4)): This provision reflects the established principle that combatants, having chosen to participate in armed conflict, bear risks that may not be transferred to civilians who have made no such choice. The provision does not require operations that would be expected to result in the near - certain death of attacking forces, but does require acceptance of increased operational risk where this significantly reduces civilian harm.

Civilian-to-Civilian Scope of the Override Article 7): The emergency override is confined to circumstances in which foreseeable harm to civilians is the sole means of preventing vastly greater and imminent harm to civilians. Invocation of the override does not authorise balancing civilian harm against military advantage as such. Military advantage, strategic gain, force protection, or general battlefield considerations cannot independently justify recourse to the override, which is limited to exceptional, time-critical scenarios involving the prevention of mass civilian casualties.

On the emergency override (Article 8):

Imminence and scale: The requirement of imminence ensures that the override cannot be used for preventive action against speculative threats. "Minutes or hours" is the ordinary measure; exceptions exist only where an irreversible causal chain is already in motion and alternatives have genuinely collapsed. The scale requirement - deaths in the tens, hundreds, or thousands—distinguishes mass atrocity from individual tragedy. The override does not exist to save a handful of lives at the cost of other lives; it exists for the genuine catastrophic scenario where inaction would produce casualties of an entirely different order of magnitude.

Decisive asymmetry: The civilian - to - civilian comparison is categorically distinct from proportionality analysis. Proportionality weighs military advantage against civilian cost; the override weighs civilian lives saved against civilian lives lost. The asymmetry must be stark - not a marginal or contestable balance. If reasonable people could disagree about whether the trade - off is justified, the override is unavailable.

Intelligence reliability: The stringent intelligence standard reflects a deliberate choice: where uncertainty exists, the override is unavailable. This may mean that genuine threats go unaddressed. That cost is accepted because the alternative—permitting override invocation on uncertain intelligence - would shift the risk of error onto civilians who bear no responsibility for the threat. The requirement of corroboration "where feasible" acknowledges that time pressure may preclude multi - source verification, but single - source intelligence must be of exceptionally high reliability to satisfy this condition.

Highest - level authorisation: Prospective designation of authorising authorities ensures that override decisions are made by commanders with appropriate seniority, legal advice, and situational awareness. Retrospective ratification cannot cure an improperly authorised strike. The requirement that consultation occur "where time permits" is not a loophole; decision - makers who bypass higher authority when consultation was feasible violate this condition even if the other conditions were satisfied.

HVT exclusion: The override exists to prevent mass civilian death, not to eliminate high - value individuals. Where an HVT is directing an imminent mass - casualty attack, the override may apply - but the justification is the attack being prevented, not the target's importance. This distinction matters: if the HVT could be neutralised by other means, or if eliminating the HVT would not in fact prevent the imminent attack, the override is unavailable regardless of how valuable the target.

Documentation and review: The requirement of contemporaneous documentation ensures that override invocations can be meaningfully reviewed. A commander who invokes the override but fails to document the basis for doing so has not satisfied condition (h), and the absence of documentation will give rise to adverse inferences under Article 9(5). The automatic triggering of independent review is not discretionary; every override invocation is reviewed, regardless of outcome.

On the two - tier accountability system (Article 11): The distinction between grave and serious violations reflects the reality that not all failures warrant criminal prosecution, but all failures warrant review. The administrative tier ensures systemic discipline without requiring proof of criminal intent for every incident.

On victim remedies (Article 12): The separation of condolence payments from legal liability is designed to encourage humanitarian assistance without requiring states to admit wrongdoing as a precondition. However, condolence payments do not substitute for full reparation where violations are established.

Declaration on Foreseeable Harm to Innocents

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