The Concept of Military Objectives in International Law and Targeting Practice

Agnieszka Jachec-Neale

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781317594710
• Edition: 1
• Topic: Diritto
• Subtopic: Diritto militare

The concept that certain objects and persons may be legitimately attacked during armed conflicts has been well recognised and developed through the history of warfare. This book explores the relationship between international law and targeting practice in determining whether an object is a lawful military target.

By examining both the interpretation and its post-ratification application this book provides a comprehensive analysis of the definition of military objective adopted in 1977 Additional Protocol I to the four 1949 Geneva Conventions and its use in practice. Tackling topical issues such as the targeting of TV and radio stations or cyber targets, Agnieszka Jachec-Neale analyses the concept of military objective within the context of both modern military doctrine and the major coalition operations which have been undertaken since it was formally defined.

This monograph will be of great interest to students and scholars of international law and the law of armed conflict, as well as security studies and international relations.

1 Introduction

1.1 The problem

Every armed conflict in history has been marked by some controversy about the choice of targets. In the 1999 intervention in Kosovo, the attack on the Serbian TV and radio broadcasting station caused most debate, though attacks against certain bridges were also questioned.¹ The targeting choices during the early hostilities in Afghanistan in 2001, and Iraq in 2003, were focused on objects associated with the undemocratic regimes in these countries – those of the Taliban and of Saddam Hussein respectively.² Increasingly, attacks on fleeting ‘targets of opportunity’ have started dominating the war effort in more recent conflicts. Much of the debate around specific incidents has been generated by the reporting of the mass media and non-governmental organisations. In the case of coalition or alliance operations certain targets have provoked a significant discussion between the relevant parties.³ Although it was clear at the time that some States were not comfortable with prosecuting attacks against these objects, it was not always apparent why that was.⁴

Do these disagreements reflect a problem with the definition of military objective? Have some States been interpreting the definition differently? Even if States agree on the words of the definition, practical outcomes may differ if they do not interpret the words in the same way. Is it that the reasons behind any differences of opinion have not, in fact, been legal ones at all? If so, what has been their impact on State practice, which is supposed to assist in the clarification of the law?

The controversies around certain targets have shown the need for a clarification of the concept of military objective in law and practice. This study aims to address these issues not only through a comprehensive examination of all the components of the legal definition and their interpretation, but also by considering how the definition works in practice.

1.2 The scope

The two aspects of this work, namely the analysis of the concept of military objective and of State practice related to its interpretation, raise substantively different issues in relation to the scope of this work.

1.2.1 The concept and the definition

Although the notion that certain persons and objects may legitimately be attacked is long-established and uncontested, the definition of the relevant objects was formally codified only 37 years ago. The definition of military objective was first adopted in a legally binding document in 1977, as part of Additional Protocol I to the 1949 Geneva Conventions (API).⁵ In Art 52.2, the definition was formulated to include two key elements. Each must be satisfied when planning an attack. The first key element is the object’s effective contribution to military action. The second is definite military advantage resulting from the destruction, capture or neutralization of the object.⁶ The focus of this study is on the content of the definition, the meaning of its elements and how the definition is put into practice. It does not address the issue of its status as a customary rule, although a brief mention of whether the rule is perceived as customary will be made where appropriate.⁷

The definition of military objective has been included in a treaty that deals entirely with one type of armed conflict: namely, an international conflict as defined by Article 1 of API in combination with Article 2, common to all four 1949 Geneva Conventions.⁸ The majority of the examples in this work are from conflicts generally recognised as international in character.⁹ In any situations of violence referred to, the existence of an armed conflict will be assumed. The application of the relevant provisions of international law, and specifically the law of armed conflict (LOAC), to such situations will also be assumed. This will include situations involving military operations based on United Nations Security Council authorisation to use ‘all necessary means’ under Chapter VII of the United Nations Charter, such as the 1990–1 Gulf War.¹⁰

The need to assess targets flows from one of the fundamental principles of the law of armed conflict, namely the principle of distinction.¹¹ This principle requires that the parties to the conflict distinguish at all times between the civilian population and combatants, and between civilian objects and military objectives. In so far as objects are concerned, violent force may be directed only against military objectives.¹² Thus the concept of military objective is focused on what it is permissible to attack, and does not deal with the specific types of objects that are prohibited from being attacked. These are regulated elsewhere in the treaty, or by other, appropriate customary rules.¹³ This also means that while the concept refers to both relevant human beings and physical objects, only lawful, physical objects of attack are defined in Art 52.2 API.¹⁴ Consequently, this study will consider the concept only in relation to physical objects. More specifically, only objects located on land that can be affected by air, land or sea warfare will be considered here.¹⁵

1.2.2 The practice

To determine the meaning of the definition, it will first be necessary to explore the meaning of the terms used in it. This will take into account the records of the negotiations to agree the definition, as well as examples drawn from its practical application. In this regard, State practice, and in particular any subsequent practice in the application of the treaty, that is API, ‘which establishes the agreement of the parties regarding its interpretation’ in line with Art 31 of the Vienna Convention on the Law of Treaties,¹⁶ will be considered. However, the problem often encountered when looking at such practice is that States tend not to volunteer detailed information as to why they regarded particular targets as military objectives.¹⁷ This is also true in respect of specifying exactly how the object effectively contributed to military action, and how its destruction, capture or neutralization offered a definite military advantage. Some limited information regarding States’ views can be found in LOAC manuals and operational law handbooks, but they tend to generalise by referring to categories of targets.¹⁸ One can find even less of an indication as to how much information – and of what kind – States need to make a decision regarding the lawfulness of a target.¹⁹

Subsequent practice in application of the treaty is, however, not only shaped by military manuals and the international law obligations of the State. The behaviour of the State’s armed forces is also the result of military doctrine, which guides the identification of suitable targets through the targeting process. Targeting is guided by the general and specific sources of military doctrine that constitute a body of knowledge that military forces have developed in order to provide guidance on the conduct of current operations.²⁰

A State’s behaviour must be consistent with the law. During the targeting process, the identified targets are vetted in accordance with the relevant legal standards. If the State planning attacks is engaged in an international armed conflict, the definition of military objective must be applied in order to assess the lawfulness of the selected targets. What is being selected as a potential target, and subjected to legal scrutiny, will depend on how the military forces conceptualise the operation, which is guided by military doctrine. In other words, the starting point for any military forces, before and during an armed conflict, will be a vision and plan of their operations, including targets they would like to affect. The law is taken into account in the later stages of planning military operations. Only the targets identified by military forces as desirable would be subjected to a legal test. The practical impact of this process could be twofold.

On the one hand, this means that the objects that are eventually targeted should be regarded as a reflection of that State’s view as to what is a legitimate military objective. The application of military doctrine might identify legally questionable targets. The risk here might be that the legal scrutiny applied would qualify the targets as lawful simply because they could not be said to be clearly unlawful. This means that pressure possibly coming from the military may affect the interpretation of the elements of the definition. If the object cannot be clearly regarded as prohibited, but can be seen as satisfying the legal requirements to some extent, then the temptation might be to go along with the military proposal and approve the target. If this turns out to be a repeated practice, then it may give the impression that this is, indeed, a preferred interpretation of the definition by that particular State. This practice would feed into the relevant practice of all States, thus comprising the subsequent treaty practice. If such a trend continues, and other States do not object or show evidence of contrary practice, the overall interpretation of the definition may appear to be modified.²¹

On the other hand, there could be other objects that, in the context of a particular armed conflict, will not even be proposed as targets by the armed forces. Does subsequent practice in application of the treaty include objects that are not targeted? The reason for not targeting them may be military or political, rather than legal. Does this feed into the body of subsequent practice?

The examination of military doctrine in this work has necessarily been limited in two ways. The doctrine analysed was confined to selected general or higher doctrine and more specific targeting doctrine, as well as to sources that refer to the application of the law to military activity. It is worth noting that there is a wealth of other military doctrine that may also be relevant to the discussion, but it was felt that the documents analysed were sufficient to indicate the problematic issues. In this respect, the material is thus intended to be illustrative rather than exhaustive.

The second limitation affects the choice of States whose doctrine was reviewed. The initial research goal was to acquire access to the military doctrine of a wider pool of States representing the major military powers, including the United Kingdom, the United States, Australia, New Zealand, Canada, France and Germany, as well as Russia, India, China and Arabic-speaking countries. In addition, relevant NATO doctrine was sought. The availability of the doctrinal sources varies. The UK and the US offer by far the most, and most recent, relevant doctrinal sources. Australia, New Zealand, Canada and France make some relevant documents publicly available, as does, to a limited extent, India. NATO’s general doctrine is readily available, but its specific ...