INTRODUCTION
International Humanitarian Law has evolved massively in practice in the recent decades, with the civilisation of armed conflicts that has opened new and specific areas of academic interpretation and practical implementation of the cardinal rules enshrined in The Geneva Conventions of 12August 1949.
In this paper, we lay focus on the legitimacy of targets that shall be attacked in an armed conflict and the critical aspects associated with targeting, that have to be considered in significance by military forces in modern warfare. Targeting issues have become even more important, not just because of the severe loss of life and violations of humanitarian rules involved in the process but also because of the onset of new weapon technologies and the increasing presence of civilian objects and population in asymmetric conflicts.
The issue of “targeting” is gaining critical attention. The incidental loss of civilian life and damage to civilian property resulting from military attacks is at the core of numerous political debates. The targeting of objects involves four important principles, distinction, military necessity, proportionality and unnecessary suffering – particularly distinction. Distinction, the fundamental principle of International Humanitarian Law is at the heart of lawful targeting. Proportionality is always a major deciding factor for an attacking force in its targeting planning. Lack of military necessity should scratch a target from being attacked even if it is legitimate. Unnecessary suffering being a major objective of the Law of Armed Conflict requires that certain weaponry means of warfare shall not be employed against enemy combatants if the damage to be inflicted is much greater than what is required for the fulfilment of an objective.
PRINCIPLE OF DISTINCTION
The principle of distinction lies at the centre of the entire legal structure governing the conduct of hostilities.The prohibition on intentional targeting of civilians is the most basic rule underlying the law of war, this principle obligates that parties to an armed conflict must distinguish between the civilian population and combatants and between civilian objects and military objectives.
It has been codified as the basic rule under Article 48 of the First Additional Protocol of the Geneva Conventions of 12 August 1949.[1] It was also recognised as a fundamental and ‘intransgressible principles of customary international law’ by the International Court of Justice in its Advisory Opinion of 1996 on Legality of the Threat or Use of Nuclear Weapons.[2] Without doubt, the principle of distinction has become an essential expression of customary international law, whether at land, in the air or at sea despite certain objections to other provisions of Protocol I.[3]
This principle has two aspects, one is its protective side that grants an exemption from being attacked to civilians and civilian objects. But equally important is its other dimension, corresponding an exposure to attack to combatants and military objectives.[4]In order to protect civilians and the civilian population from hostilities and their effects, it is important to understand who and what may be attacked. The first rule regarding attacks by acts of violence[5] is that the intended target must be a military objective.
MILITARY OBJECTIVES
Military objectives refer to things that can be attacked lawfully. The coinage “military objectives” first came into use in the non-binding 1923 Rules of Air Warfare[6], where attempts to define the term were made in Article 24[7] of the draft. These rules were not adopted by’ states and a much broader approach to the concept of military objective was prevalent in World War II.
A binding definition of military objectives was crafted in 1977, in Article 52(2) of the First Additional Protocol to the Geneva Conventions of 12 August 1949:
Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.[8]
The definition mentioned in the First Additional Protocol introduces two completely fresh thoughts. The first is the aspect of ‘location’ for determining effective contribution of an object to the enemy’s military action and the second is the introduction of the concepts of ‘capture’ and ‘neutralization’.[9] Previous definitions of military objective ascertained the “destruction or injury” of an object[10] or the “partial or total destruction” of an object as a requirement for gaining military advantage.[11] Article 52(2) has provided a broader perspective to the class of actions to include those actions that lack destruction but nevertheless deny the use of an object.[12]
The term “attacks” has been defined in Article 49(1) of the First Additional Protocol as “acts of violence against the adversary, whether in offence or in defence.” “Civilians” have been defined as “persons not belonging to the armed forces”[13] and “civilian objects” as “all objects that cannot be considered as military objectives.”[14] Clause 3 of Article 52 indicates that in case of doubt over whether an object, which is normally dedicated to civilian purposes[15], is being used to make an effective contribution to military action of the enemy; it shall be presumed not to be so used.
Despite the principle of distinction being customary in nature, Article 52(2) has been heavily debated and criticized for being “abstract and generic” and not having provided a list of specific military objectives by nature.[16] We believe that a different view to such an issue is that the definition in Article 52(2) offers the possibility of a “flexible and future-oriented interpretation.”[17] A flexible view may become essential in the coming times as the nature and dynamics of armed conflict evolve and military action moves beyond the conventionalbattlefield.
CONDITIONS THAT CONSTITUTE AN OBJECT INTO A MILITARY OBJECTIVE
The fundamental purpose of the First Additional Protocol is to protect those lives and objects that are not involved in military activities and it strives towards it by regulating the conduct of those that are militarily engaged. In this process, it has built a significant system of the laws of armed conflict, which refer to the prevention of unnecessary destruction. This is a severely important aspect of the definition of the military objective in its essence, which is primarily focused on identifying what can be attacked.
Also known as the two-pronged test, Article 52(2) provides for two comprehensive conditions for an object to constitute a military objective:
· That the object makes an effective contribution to the military action of the enemy by virtue of its nature, location, purpose or use, and
· That the object’s capture, destruction or neutralization provides the attacking party with a definite military advantage.
A major argument against the two-pronged test is, that in practical situations, once a party has established that an attack offers its side a “definite military advantage”, it requires no great leap to argue that the objective made an effective contribution to military action in the first place; and vice versa.[18]
We think that such an approach runs the risk of transforming the two distinct conditions into one, thereby leading this test in the favour of the attacking party, while losing the significance of civilian objects by virtues of their nature, location, purpose and use.[19]The essence of the principle of distinction is dependent upon, first, an analysis of the object’s contribution to the military activities of the party defending itself and, second, the relation of its destruction, capture or neutralization to the definite military advantage of the attacking party.[20]
Effective Military Contribution
The first condition established in Article 52(2) is itself divided into two parts: that the objective makes an effective contribution to military action; and that this contribution is linked to the nature, location, purpose or use of the objective in question.
This criterion has assumed great importance because it protects those civilians and civilian objects that financially, politically or psychologically support the defending party from being considered as legitimate targets of attack by operating forces. The criteria of nature, location, purpose or use can be understood as follows: nature refers to the intrinsic character of the object,[21] location refers to the possibility for an object to become a military objective if it is situated in an area that has been ascertained as a legitimate target, [22]purpose refers to the combatant’s intended future use of an object,[23] and use refers to its current function.
Definite Military Advantage
The second condition for determining legitimacy provided for in Article 52(2) refers to “a definite military advantage” that must be gained from the (total or partial) destruction, capture or neutralization[24] of the targets. The term “a definite military advantage” (like “military objectives”) was first mentioned in the Hague Rules of Air Warfare, which concentrated on the term “a distinct military advantage.”[25] It aims at expressing the thought of “a concrete and perceptible military advantage rather than a hypothetical and speculative one.”[26]
It is important to understand that the advantage gained must be military and not, be purely political (“forcing a change in the negotiating attitudes” of the adverse party[27] cannot be deemed a proper military advantage). Also, a potential political outcome cannot be an admissible consideration in assessing the character of the object as a military objective.[28]The process of assessing military advantage must be made against the background of the circumstances prevailing at the time, so that the same object may be legitimately attacked in one temporal framework but not when there is a change in the circumstances.[29]
The key issue in respect to military advantage is mostly the difference between the outlooks of the attacking party and of the party under attack is unlikely to match in evaluating the long-term military benefits of any action being planned.[30] Military advantage cannot be construed to tactical or local gains. In furtherance of customary international law, the prospective long-term and large-scale military advantage of an attack has to be assessed as whole.[31]
MILITARY OBJECTIVES EXEMPTED FROM ATTACK
The justification and reasoning behind an object’s legitimacy to constitute a military objective is not always conclusive in legitimizing an attack. Some objects are exempted from attack, irrespective of their distinct character as a military objective, because of the larger and essential purpose they serve to the civilian population. Article 56(1) provides the most extreme illustration:
Works or installations containing dangerous forces, namely dams, dykes and nuclear electrical generating stations, shall not be made the object of attack, even where these objects are military objectives, if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population. Other military objectives located at or in the vicinity of these works and installations shall not be made the object of attack if such attack may cause the release of dangerous forces from the works or installations and consequent severe losses among the civilian population.[32]
The special protection accorded to objects mentioned in Article 56(1) is not unqualified. According to the provisions of Article 56(2), such protection ceases when dams, dykes or nuclear electrical generating stations regularly, significantly and directly supports military operations, and there is no other feasible way to terminate such support.[33] However, the rules prescribed under Article 56 are binding in nature only upon Contracting Parties to the Additional Protocol.
The Geneva Conventions also prohibit attacks against protected military persons, such as those combatants who become hors de combat, either by force of circumstances (being wounded, sick or shipwrecked) or by choice (through surrender). Certain medical units such as medical corps ambulances, military hospitals, hospital ships, and medical aircrafts have been provided special protection. Attacks have also been prohibited against medical personnel engaged in the treatment of the wounded and sick, and chaplains attached to the armed forces.
Additionally, an attack against a military objective-which is not protected as such-may be illicit owing to the principle of proportionality, whereby the “collateral damage” or injury to civilians (or civilian objects) must not be excessive.[34]
PROPORTIONALITY IN LAWFUL TARGETING
The primary purpose of International Humanitarian Law is to reduce net human suffering in armed conflict. A significant proportion of human suffering, including death or injury to civilians and damage to civilian objects, occurs during combat when objects or persons are targeted and attacked. The task of balancing dissimilar values that cannot be quantified – military gains and humanitarian considerations – is complex and entails both, the application and implications of the principle of proportionality.
Proportionality refers to the comparative ratio between things. Proportionality is significant to the rules concerning targeting as, when an attack is directed against a military objective, combatants or civilians taking a direct part in hostilities, the anticipated collateral or incidental loss of life, injury to civilians, and damage to civilian objects must not be excessive or disproportionate to the anticipated military advantage derived from the attack.[35]
The principle of proportionality is implicitly contained in Article 51 of the First Additional Protocol, which prohibits indiscriminate attacks. It goes on to specify in Article 51(5) (b) that certain types of attacks are indiscriminate, including when: “an attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.” The expression “excessive,” considered in the context of the First Additional Protocol, is synonymous with the idea of being disproportionate.[36]
The proportionality process compares the anticipated concrete and direct military advantage with the anticipated incidental loss of civilian life, injury to civilians, damage to civilian objects or a combination thereof. The attack is prohibited if it will result in excessive civilian losses in comparison with the anticipated concrete and direct military advantage.
CONCLUSION
The legal rules and principles forming the law applicable the conduct of hostilities play a very significant role in the regulation of international armed conflicts. The law governing the conduct of hostilities rests severely upon the principle of distinction, which aims at creating both, a theoretical and practical distinction between civilian objects and military objectives, so as to prevent and protect civilian populations from excessive damage and aggressive military operations. With the evolution of the law of armed conflict in the last three decades, it has become imperative for combating forces to adhere to the Geneva Conventions and use force in balance with humanitarian considerations. Legitimacy of targets is very crucial for the sustenance of humanity even on the battlefield and parties to an armed conflict must act proportionately and with careful precision while using weapons of mass destruction and while using force in situations where the chances of collateral damage are very high.
Submitted by:
PRAYANK JAIN III Semester, B.A., LL.B.
ABHISEK DASH CHOUDHURY VII Semester, B.B.A., LL.B.
S.L.S, Noida
[1]“In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives”.
[2] Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. Reports 226, 257 (July 8).
[3] See Horace Robertson, ‘The Principle of the Military Objective in the Law of Armed Conflict’, 197, 207 (The Law of Military Operations, Liber Amicorum Professor Jack Grunawalt, Michael Schmitt ed., 1998) (Vol. 72, US Naval War College International Law Studies).
[4]Y. Dinstein., The Conduct of Hostilities under the Law of International Armed Conflict, Cambridge, Cambridge University Press, 2004 at 89.
[5] Under a broader interpretation, attacks consist of acts of violence as soon as they have violent consequences, even if the attacker uses no violence. Michael N. Schmitt, “Wired warfare: Computer network attack and jus in bello” (2002) 84 International Review of the Red Cross 365 at 377.
[6]Hague Rules of Air Warfare, 1923, Documents on The Laws of War 447 (Adam Roberts and Richard Guelff eds., 3d. ed. 2000), art. 24(1), at 139, 144.
[7]In Article 24(1), a military objective was defined as: “an objective where the total or partial destruction would constitute an obvious military advantage for the belligerent”. The following paragraph itemizes military objectives as: “military forces, military works, military establishments or depots, manufacturing plants constituting important and well-known centres for the production of arms, ammunition or characterized military supplies, lines of communication or of transport which are used for military purposes.”
[8] Article 52(2), Protocol Additional to the Geneva Conventions of 12 August 1949
[9] Y. Sandoz, C. Swinarski& B. Zimmermann, eds., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, Geneva, International Committee of the Red Cross and MartinusNijhoff Publishers, 1987 at para. 2019.
[10] Rules concerning the Control of Wireless Telegraphy in Time of War and Air Warfare, drafted by a Commission of Jurists at The Hague, December 1922 – February 1923
[11] Article 2, Resolution adopted by the Institute of International Law at its session at Edinburgh, September 9, 1969, available online in the ICRC IHL Database: http://www.icrc.org/ihl.nsf/WebFULL?OpenView
[12] W.A. Solf, “Article 52” in M. Bothe, K.J. Partsch& W.A. Solf, eds., New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949, The Hague, MartinusNijhoff Publishers, 1982, 318 at 325 para. 2.4.5.
[13] Article 50(1), Protocol Additional to the Geneva Conventions of 12 August 1949
[14] Article 52(1), Protocol Additional to the Geneva Conventions of 12 August 1949
[15] Civilian purposes have been illustrated in Article 52(3) as “place of worship, a house or other dwelling or a school”
[16]Dinstein, Supra note 4 at 90.
[17] O. Bring, “International Humanitarian Law after Kosovo: Is lexlata Sufficient?” (2002) 71 Nordic Journal of International Law 39 at 42.
[18]“One cannot imagine that the destruction, capture, or neutralization of an object contributing to the military action of one side would not be militarily advantageous for the enemy; it is just as difficult to imagine how the destruction, capture, or neutralization of an object could be a military advantage for one side if that same object did not somehow contribute to the military action of the enemy“ (M. Sassòli& A.A. Bouvier, How Does Law Protect in War? Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law, Geneva, International Committee of the Red Cross, 1999 at 161 note 140).
[19]“The logic of this approach, however, endangers collapsing the two-prong test into one. If the second (definite military advantage) is satisfied, then a key component of the first (effective contribution to military action) is presumed to be satisfied.” Also read, “The concern is primarily about civilian objects under enemy control, which when attacked would provide a definite military advantage and could therefore slip into the category of military objectives without proper consideration of their actual contribution to the enemy’s action. One can conceive of situations where an object has a doubtful military status but its destruction, capture or neutralization affords a definite military advantage to an attacking Party.”,(Alexandra Boivin, “The legal regime applicable to targeting military objectives in the context of contemporary warfare”, University Centre for International Humanitarian Law Research Paper Series, no. 2, 2006, p 19).
[20] ibid
[21]The ICRC Commentary includes in this category any object that is directly used by the armed forces, such as “weapons, equipment, transports, fortifications, depots, buildings occupied by armed forces, staff headquarters, communication centers, etc. Sandoz, supra note 9, at para 2020.
[22]Dinstein, supra Note 3, at 150.
[23]Sandoz, supra note 9, at para 2020.
[24] The term “neutralization” in this setting means denial of use of an objective to the enemy without destroying it. See WaldemarSoilf, Article 52, in New Rules for Victims of Armed Conflicts: Commentary on The Two 1977 Protocols Additional To The Geneva ConventionsOf1949, at 318, 325 (Michael Bothe, Karl Partsch&WaldemarSolf eds., 1982).
[25] Hague Rules of Air Warfare, supra note 6, art. 24(1), at 144
[26]Solf, supra note 24, at 326.
[27] Forcing such a change has been viewed (incorrectly) as a legitimate military advantage by Burrus Carnahan, ‘Linebacker II’ and Protocol I: The Convergence of Law and Professionalism, 31 American University Law Review 861, 867 (1981-1982).
[28] See J.R Weeramantry, ‘Partial and Final Arbitration Awards (Eritrea/Ethopia)’, American Journal of International Law 616, 626 (2007)
[29]Hamilton DeSaussure, Remarks, 2 American University Journal Of International Law And Policy, 513 (1987).
[30] Dieter Fleck, Strategic Bombing and the Definition of Military Objectives, 27 Israel Yearbook On Human Rights 41, 48 (1997).
[31]See J.A. Burger, ‘International Humanitarian Law and the Kosovo Crises: Lessons Learned or to Be Learned’, 82 IRPC 129, 132 (2000).
[32] Article 56, Protocol Additional to the Geneva Conventions of 12 August 1949
[33]Ibid
[34]Dinstein, supra note 4, at 106
[35]“Off Target: The Conduct of the War and Civilian Casualties in Iraq”, New York, Human Rights Watch, 2004 at 23.
[36] The drafting history of the provision is reviewed in WilliamJ. Fenrick, “The Rule of Proportionality and Protocol I in Conventional Warfare” (Fall 1982) 98 Mil. L. Rev. 91 at 98-112.