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5.5.3.2 AP I Presumptions in Favor of Civilian Status in Conducting Attacks. Inthe context of conducting attacks, certain provisions of AP I reflect a presumption in favor ofcivilian status in cases of doubt. Article 52(3) of AP I provides that “[i]n case of doubt whetheran object which is normally dedicated to civilian purposes, such as a place of worship, a house orother dwelling or a school, is being used to make an effective contribution to military actions, itshall be presumed not to be so used.” 76 Article 50(1) of AP I provides that “[i]n case of doubtwhether a person is a civilian, that person shall be considered to be a civilian.”Under customary international law, no legal presumption of civilian status exists forpersons or objects, nor is there any rule inhibiting commanders or other military personnel fromacting based on the information available to him or her in doubtful cases. 77 Attacks, however,may not be directed against civilians or civilian objects based on merely hypothetical orspeculative considerations regarding their possible current status as a military objective. Inassessing whether a person or object that normally does not have any military purpose or use is amilitary objective, commanders and other decision-makers must make the decision in good faithbased on the information available to them in light of the circumstances ruling at the time.A legal presumption of civilian status in cases of doubt may demand a degree of certaintythat would not account for the realities of war. 78 Affording such a presumption could alsoencourage a defender to ignore its obligation to separate military objectives from civilians andcivilian objects. 79 For example, unprivileged belligerents may seek to take advantage of a legalpresumption of civilian status. 80 Thus, there is concern that affording such a presumption likelywould increase the risk of harm to the civilian population and tend to undermine respect for thelaw of war.76 AP I art. 52(3). See also BOTHE, PARTSCH, & SOLF, NEW RULES 326 (AP I art. 52, 2.5.1) (“It should be notedthat the presumption applies only as to objects which normally do not have any significant military use or purpose.The committee deleted from the illustrative list proposed by the ICRC in draft Art. 47, the phrase ‘installations andmeans of transport’, thus indicating an intent by the Conference that the presumption should not apply to objectswhich are of such a nature that their value to military action in combat situations is probable. Means of transportand of communication fall into a category where their use for military purposes cannot be excluded through apresumption.”).77 See, e.g., Christopher Greenwood, Customary international law and the First Geneva Protocol of 1977 in the Gulfconflict, in PETER ROWE, THE GULF WAR 1990-91 IN INTERNATIONAL AND ENGLISH LAW 63, 75 (1993) (“[I]t is verydoubtful that Article 52(3) represents customary international law.”); BOTHE, PARTSCH, & SOLF, NEW RULES 327(AP I art. 52, 2.5.2) (quoting a Rapporteur’s observation at the Diplomatic Conference that a presumption “will bea significant new addition to the law”).78 Refer to § 1.4.2.2 (Nature of War – Limited and Unreliable Information – “Fog of War”).79 See FINAL REPORT ON THE PERSIAN GULF WAR 616 (“This language, which is not a codification of the customarypractice of nations, causes several things to occur that are contrary to the traditional law of war. It shifts the burdenfor determining the precise use of an object from the party controlling that object (and therefore in possession of thefacts as to its use) to the party lacking such control and facts, i.e., from defender to attacker. This imbalance ignoresthe realities of war in demanding a degree of certainty of an attacker that seldom exists in combat. It alsoencourages a defender to ignore its obligation to separate the civilian population, individual civilians and civilianobjects from military objectives, as the Government of Iraq illustrated during the Persian Gulf War.”).80 See APPENDIX TO 1985 CJCS MEMO ON AP I 53 (rejecting the presumption of civilian status in AP I because“[t]his presumption also provides an additional protection for guerillas and other irregulars who may find itadvantageous to be presumed to be a civilian rather than a combatant.”).197