From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 02 February 2023
- Armed conflict — Military objectives — Weapons — Ius ad bellum — Humanitarian intervention — Armed forces — Peace keeping
Published under the auspices of the Max Planck Institute for Comparative Public Law and International Law under the direction of Professor Anne Peters (2021–) and Professor Rüdiger Wolfrum (2004–2020).
A. Importance of the Concept and Historical Development
1 According to an uncontroversial principle of customary international humanitarian law (Customary International Law; Humanitarian Law, International) codified in Art. 48 Geneva Conventions Additional Protocol I (1977) (‘AP I’), parties to an international armed conflict must distinguish between the civilian population and combatants and between civilian objects and military objectives (see the Study on Customary International Humanitarian Law published by the International Committee of the Red Cross [‘ICRC’] in Henckaerts and Doswald-Beck 3–8, 25–29; see also Armed Conflict, International; Civilian Population in Armed Conflict). Only combatants, civilians who directly participate in hostilities for such time as they directly participate, possibly members of armed groups (according to the ICRC only if they have a continuous fighting function), and military objectives may be attacked. Therefore, some authors include combatants and civilians who may be attacked (including those who directly participate in hostilities and members of a levée en masse) within the concept of military objectives (see Dinstein  92; Boothby 99–100; US Law of War Manual 205 para 22.214.171.124). However, they do not argue that attacks on combatants are unlawful if the latter do not offer, as military objectives must, in the circumstances of the time a definite military advantage. Understanding what constitutes a military objective is central to understanding international humanitarian law governing the conduct of hostilities in armed conflicts and to its protective regime. Civilian objects, which constitute the category complementary to that of military objectives are needed by civilians, sometimes even for their mere survival, and therefore may not be attacked. In addition, attacks against civilian objects also endanger civilians. While it is unlawful to deliberately attack civilians, not all civilian deaths resulting from attacks are unlawful. This is another reason why it is important to define which objects may be lawfully attacked. Only incidental and proportionate civilian losses in connection with attacks on such lawful targets may be admissible (Indiscriminate Attack; Proportionality and Collateral Damage).
2 Historically, the focus of the law on the conduct of hostilities shifted from the prohibition of attacks on non-defended towns, and villages, dwellings and buildings (see Art. 25 Regulations Respecting the Laws and Customs of War on Land Annex to the 1907 Hague Convention Respecting the Laws and Customs of War on Land [‘Hague Regulations’]) to the rule that only military objectives may be attacked. This shift occurred due to technological developments after the Hague Peace Conferences (1899 and 1907) and in particular due to the availability of long-range weapons and aircraft (see, however, already in 1907 Art. 2 Convention [IX] concerning Bombardment by Naval Forces in Time of War; see also Air Warfare; Bombardment; Naval Warfare). Due to this shift, the need to define military objectives became imperative. First attempts were made in the Rules of Aerial Warfare drafted by the Commission of Jurists at The Hague in 1923 (‘Rules of Aerial Warfare’), which were never adopted by States.
3 The principle of distinction is practically worthless without a definition of at least one of the categories between which the attacker must distinguish. From the point of view of the philosophy of international humanitarian law it would have been more satisfactory to define civilian objects. However, because an object becomes a military objective by virtue of its use by the enemy or potential use by the attacker rather than by virtue of its intrinsic character, military objectives had to be defined. As every object may become a legitimate object of attack, it is not possible to list military objectives exhaustively, although such a list would have greatly simplified the practical implementation of the rule. Most definitions are therefore abstract but provide a list of examples. One of the most detailed lists was drawn up by the ICRC with the help of military experts as an annex to its 1956 Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War (see Sandoz Swinarski and Zimmermann 632). Rule 23 HPCR Manual on International Law Applicable to Air and Missile Warfare (‘HPCR Manual’) lists examples of objects that may qualify as military objectives: ‘factories, lines and means of communications (such as airfields, railway lines, roads, bridges and tunnels); energy producing facilities; oil storage depots; transmission facilities and equipment’. Such lists may be used as supplementary means of interpretation for the generally accepted abstract definition offered by Art. 52 AP I, but what is decisive is whether, under the circumstances, a given object fulfils the two-pronged test of that provision.
B. Definition Found in Art. 52 (2) AP I
4 Art. 52 (2) AP I
provides the following definition of military objectives, which includes a two-pronged test:
5 Under the two-pronged test of this article an object must fulfil two cumulative criteria (except as under the Spanish authentic version, which casts some doubt on whether the criteria are cumulative or alternative, and which is arguably erroneous: see Jachec-Neale 113–14) to be a military objective. First, the object must contribute effectively to the military action of the enemy. This turns on an object’s ‘nature, location, purpose or use’. ‘Nature’ refers to the intrinsic character of the object. ‘Location’ admits that an object may be a military objective simply because it is situated in an area that is a legitimate target. When signing or ratifying AP I, the United Kingdom (‘UK’), Canada, Germany, the Netherlands, and the United States of America (‘US’) clarified their understandings that a specific area of land may be a military objective if its total or partial destruction, capture, or neutralization in the circumstances ruling at the time offers a definite military advantage. However, the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) has found that a distinction between areas or zones as civilian or military in nature must be made on a case-by-case basis. Considering entire areas as military zones in which any objective can be lawfully targeted does not respect the principle of distinction (Prosecutor v Milošević paras 52–54). ‘Purpose’ refers to the enemy’s intended future use, based upon reasonable belief. A US interpretation goes further by including possible use in the future (US Law of War Manual 209 para. 126.96.36.199). ‘Use’ refers to the current function of the object. For example, it is uncontroversial that weapons factories and even extraction industries furnishing raw materials for such industries are military objectives, because they serve the military, albeit indirectly.
6 Second, the object’s destruction, capture, or neutralization must offer a definite military advantage for the attacking side (see also Military Necessity). This may consist in the attacker gaining ground or weakening the fighting ability of enemy armed forces. According to declarations of understanding by the UK, Canada, Belgium, France, Germany, New Zealand, the Netherlands, Italy, Spain, and the US, the military advantage anticipated from an attack is intended to refer to the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack (see also Treaties, Declarations of Interpretation). A direct connection with specific combat operations is not considered to be necessary. An attack as a whole must, however, be a finite event, not to be confused with the entire war. The Eritrea-Ethiopia Claims Commission therefore went too far when it held that the advantage anticipated from the attack ‘must be considered in the context of its relation to the armed conflict as a whole’ and includes the potential to end the conflict (Western Front, Aerial Bombardment and Related Claims: Eritrea’s Claims 1, 3, 5, 9–13, 14, 21, 25 & 26 between the State of Eritrea and the Federal Democratic Republic of Ethiopia [Partial Award] paras 113 and 121).
7 Both elements have to be fulfilled cumulatively. By characterizing the contribution as ‘effective’ and the advantage as ‘definite’, the drafters tried to avoid too broad an interpretation of what constitutes a military objective. However, the exact practical implications of those terms are controversial. Both criteria must be fulfilled ‘in the circumstances ruling at the time’. Without this limitation to the actual situation at hand, the principle of distinction would be void, as every object could, in abstracto, under possible future developments—for example, if used by enemy troops—become a military objective. Taken literally, the separate requirement that the attack must offer a definite military advantage means that even an attack on an objective of a military nature would not be lawful if its main purpose is to affect the morale of the civilian population and not to reduce the military strength of the enemy (Jachec-Neale 49 and 137). The ICTY has, however, held that an attack directed at military objectives was not prohibited, even if its primary purpose was to spread terror among the civilian population—which is not a military advantage (Prosecutor v Galić para. 135).
8 While it is questionable whether definitions can be customary, the customary rule on targeting includes a prohibition to attack objects that do not fulfil certain criteria. Those criteria could be considered as the customary law ‘definition’ of military objectives, which, according to most practice, correspond to the definition found in Art. 52 (2) AP I. This is confirmed by most authors, military manuals (Manuals on the Laws of Armed Conflict), statements made by State representatives during the drafting of AP I (and about that Protocol once it was adopted), as well as according to subsequent treaties on the use of certain weapons. This is also the conclusion of the Study on Customary International Humanitarian Law by the ICRC (see Henckaerts and Doswald-Beck 29), the HPCR Manual (Rule 1 (y)) and of the Eritrea–Ethiopia Claims Commission (Western Front, Aerial Bombardment and Related Claims: Eritrea’s Claims 1, 3, 5, 9–13, 14, 21, 25 & 26 between the State of Eritrea and the Federal Democratic Republic of Ethiopia [Partial Award] para. 113). Art. 52 (3) AP I is much more controversial, but not because of the open list of examples of civilian objects it contains—objects normally dedicated to civilian purposes, such as places of worship, houses, other dwellings or schools—but because it presumes that such objects are not used to make an effective contribution to military action. However, it is less controversial that an object may not be attacked unless the attacker has the reasonable belief that it fulfils the two-pronged test (see Prosecutor v Galić [Judgment and Opinion] para 51).
9 Only a material, tangible thing can be a military objective to qualify as a legitimate target for attacks. Even in cyber warfare, only a minority of experts consider that data could constitute a military objective (M Schmitt (ed)  126–27). Immaterial objectives, such as victory, or notional targets, such as civilian morale, cannot be attacked, but only achieved or affected through attacking tangible things. Contrary to World War II, today it is generally accepted that under existing law those things must be military objectives and that civilian objects may not be attacked for the purpose of shattering civilian morale (see Dinstein  125).
C. Specially Protected Objects
10 As mentioned in paras 4–9 above, any object may become a military objective, if it fulfils the two-pronged test. Nonetheless, some objects, such as objects necessary for the provision of medical care and humanitarian relief (see also Medical Transportation; Wounded, Sick and Shipwrecked), protected zones (Safety Zones), cultural property (Cultural Property, Protection in Armed Conflict), works and installations containing dangerous forces, the natural environment (Environment, Protection in Armed Conflict), and installations, materials, or vehicles involved in peace-keeping operations (Peacekeeping Forces), benefit from special protection under more restrictive regimes. First, with the exception of material involved in peace operations, those who control specially protected objects may not use them for military action. Therefore, such objects should never become military objectives under the two-pronged test. Second, even if specially protected objects meet the test and are actually used for military purposes, they may only be attacked under restricted circumstances and following additional precautionary measures.
D. Scope of the Concept of Military Objectives: When Does a Target Contribute to Military Action?
1. Objects Contributing to the Enemy’s War-Sustaining Capability?
11 The US substitutes ‘war-fighting or war-sustaining capability’ for military action in the definition of Art. 52 (2) AP I and includes targets that ‘indirectly but effectively support and sustain the enemy’s war-fighting capability’ (see US Law of War Manual 210 para. 188.8.131.52, Sec 950p (a) (1) United States Military Commissions Act of 2009, and, at an earlier stage, Thomas and Duncan 403). Some argue that this would justify attacks on political, financial and economic targets—eg the main export industry, the stock market or taxation authorities—or even psychological targets, as long as they influence the capability of the enemy to continue the war. In effect, the suggested extension leads to the same results as abandoning the limitation of attacks to military objectives altogether, and it is criticized for similar reasons (see paras 26–30 below).
2. Dual-Use Objects
12 In military terminology, dual-use objects serve both civilian and military purposes. Particularly in times of war, the military uses civilian infrastructure, telecommunications and logistics for military purposes. In industrialized countries, power-generating stations are crucial for civilian access to clean water, but they also provide power to war industries—and in an integrated power grid, all stations provide power to both. Computer hardware and software may be essential for military purposes, but it may be nearly impossible to identify technology actually destined or useful for military purposes (see also Cyber Warfare; Internet).
13 For the law, dual-use objects are not a separate category; they must equally fulfil the two-pronged test of Art. 52 (2) AP I. When a certain object is used for both military and civilian purposes, it may be held that even a secondary military use turns it into a military objective. However, if civilians are excessively affected by the impact upon the civilian use of the object, an attack on such a dual-use object may nevertheless be unlawful under the proportionality rule. In practice, it may admittedly be extremely difficult to determine the importance of the military use and of the military advantage in destroying the object, in particular if the military has priority access to all remaining infrastructure.
3. Infrastructure Potentially Useful for the Military
14 The civilian power grid may eventually be used for military purposes even if a separate military grid exists. Factories producing agricultural machines or cars may be converted into tank and ammunition factories. In the case of lines of communication, the question is even more important whether their destruction is justified before they are actually used for military purposes, simply because they could be so used. In this regard, the limitation ‘in the circumstances ruling at the time’ in Art. 52 (2) AP I must be taken into account. Some writers consider that all bridges (River Bridges) and railway lines of a country are military objectives from the very first day of a war, independently of where fighting erupts and where troops must have to move to and from (see Dinstein  150–51). The North Atlantic Treaty Organization (NATO) mentioned bridges generically as military objectives during the Kosovo air campaign (see General WK Clark). According to other authors, military objectives include at least bridges over which supplies destined to the front must pass or which could replace those situated on the supply lines among the military objectives (see Bothe 534; Benvenuti 508). This question is particularly acute when a party declares it will limit itself to aerial bombardments. What is, in such a situation, the definite military advantage in hindering the movement of enemy ground troops? However, if bridges were not considered military objectives in such a situation, why would tanks still be legitimate targets? A possible solution is to allow attacks on objects of a military nature even before they have an impact on military operations, while objects that are military because of their location, purpose or use could only be attacked at the moment they actually provide an effective contribution to military action (see Robertson 209).
15 If an objective is military simply because it could be converted into something useful for the military, little remains as civilian and therefore as protected. For some authors, it is sufficient that the likelihood of military use is reasonable and not remote (see Schmitt  385). According to the text of the AP I, the object must, however, ‘make’—in the present tense—an effective contribution to military action. As its purpose can lead it to make such a contribution, intended future use may be sufficient (see Sandoz Swinarski and Zimmermann para. 2022), but not possible future use, contrary to what has been suggested by the US (see above).
16 In this context, reference is often made to Art. 8 (1) (a) Convention for the Protection of Cultural Property in the Event of Armed Conflict, which prescribes that cultural property placed under special protection must be situated at an adequate distance ‘from any important military objective constituting a vulnerable point, such as, for example, an aerodrome, broadcasting station, establishment engaged upon work of national defence, a port or railway station of relative importance or a main line of communication’. Some authors mention this rule as evidence that all mentioned infrastructure listed in the article, eg broadcasting stations, are military objectives (see Dinstein  156–57; Fenrick 496). Others object, arguing that the purpose of the article is to ensure that specially protected cultural immovable property must be placed away from any location that could or is more likely to become a military objective, since it would be impossible to remove it in the midst of an actual conflict (see Sassòli 199).
E. The Concept of Military Objectives in Naval and Air Warfare
17 For attacks against targets at sea, the concept of military objectives has appeared only recently in the law of naval warfare, the traditional customary rules of which rather defined specific types of vessels which may be attacked or the conditions under which other specific types of vessels may be attacked. However, Rule 40 of the most recent restatement of the law of naval warfare, the San Remo Manual on International Law Applicable to Armed Conflicts at Sea of 1994 (‘San Remo Manual’), literally reproduces the definition of military objectives contained in Art. 52 (2) AP I (see Doswald-Beck 15). Recent military manuals on naval warfare use the same language, except for the US extension to objects which contribute to the enemy’s war-sustaining capability (see para. 11 above). While the general rule fully applies to military objectives on land attacked from the sea, the particularities of sea warfare lead to more precise rules laid down in the San Remo Manual on when merchant vessels become military objectives (Merchant Ships). For example, pursuant to Rule 60 San Remo Manual enemy merchant vessels fall under this category when sailing under convoy of enemy warships or military aircraft, refusing an order to stop or actively resisting visit, search or capture (Doswald-Beck 20). According to Rule 67 San Remo Manual neutral merchant vessels are military objectives and may be attacked if they, inter alia, are ‘believed on reasonable grounds to be carrying contraband or breaching a blockade, and after prior warning they intentionally and clearly refuse to stop, or intentionally and clearly resist visit, search or capture’ or if they ‘sail under convoy of enemy warships or military aircraft’ (Doswald-Beck 21–22; Blockade; Neutrality in Naval Warfare; Neutrality, Concept and General Rules).
18 As for air warfare, the definition of military objectives on land, which may be attacked, is the same as in the law of land warfare (see Art. 49 (3) AP I). In the air, civilian objects are perforce means of transport or are situated on means of transport (see also Air Law). The protection of civilian objects from air-to-air attacks therefore boils down to the protection of civilian aircraft. The Rules of Aerial Warfare of 1923, which are considered by many as reflecting customary international law, the provisions of the San Remo Manual, concerning aircraft in sea warfare, and in particular those of the HPCR Manual may assist in identifying in what respect the concept of military objectives must be adapted to the physical and operational realities of the air environment. For example, the danger of surprise on the part of apparently inoffensive civil aircraft must be taken into account, a danger which has been reinforced by recent instances of civilian aircraft hijacked by terrorists to use them as weapons (Hijacking)—although it is highly doubtful whether international humanitarian law applies at all in such cases (see also Terrorism).
19 The Rules of Aerial Warfare defined very broadly the circumstances in which aircraft lose their protection, due to the more rudimentary means of verification and communication existing at the time. They stated in particular that enemy civilian aircraft ‘are liable to be fired upon’ when flying within the jurisdiction of the enemy (see also Jurisdiction of States); in the immediate vicinity of such jurisdiction and outside that of their own country; in the immediate vicinity of the military land and sea operations of the enemy; or even within the jurisdiction of their State, but there only if they do not land at the nearest suitable point when an enemy military aircraft is approaching (see Arts 33–34 Rules of Aerial Warfare). The circumstances in which neutral civilian aircraft could be attacked were also formulated very broadly (Neutrality in Air Warfare). From the wording of the rules, it was not clear whether the terms ‘are exposed to being fired at’ referred to a factual risk of aircraft engaged in such conduct or to a loss of immunity in law. Later, the circumstances that make enemy and neutral civil aircraft lose protection were listed in the most detailed manner in several military manuals and the San Remo Manual. Those circumstances include, however, acts which would not make an object become a military objective in land warfare, such as a refusal to identify itself, or to comply with directions by intercepting aircraft. Whether such loss of protection referred to a factual risk or a change in legal status is not clear. In this author’s view, the most recent HPCR Manual correctly lists, in great detail, activities that ‘may render’ a civilian or other protected aircraft a military objective (Rules 27 and 63 HPCR Manual). The decisive criterion is always whether the cumulative conditions of Art. 52 (2) AP I are fulfilled (see ibid Rules 25,47 (b), while Rule 50 on enemy civilian aircraft is again ambiguous when it states that aircraft engaged in certain activities, including non-compliance with instructions, are ‘liable to attack’).
F. The Concept of Military Objectives in Non-International Armed Conflicts
20 The treaty law applicable to non-international armed conflicts (Art. 3 common to Geneva Conventions I–IV  and Geneva Conventions Additional Protocol II  [‘AP II’]) does not contain a definition of military objectives nor rules on the general protection of civilian objects (Armed Conflict, Non-International). Under Art. 13 AP II, attacks on civilians are prohibited and the civilian population enjoys general protection against the dangers arising from military operations. It is difficult to imagine how those rules can be respected without limiting attacks to military objectives as defined for international armed conflicts. The principle of distinction, which applies in non-international armed conflicts, must therefore be understood in such conflicts as not only implying an obligation to distinguish civilians from combatants, but also civilian objects from military objectives.
21 As for customary international law, in its first decision on its jurisdiction in Tadić, the Appeals Chamber of the ICTY demonstrated that the rules applicable to the conduct of hostilities in non-international armed conflicts evolved over the last century to become largely equivalent to those existing for international armed conflicts. In its practice, the ICTY applies the law on the conduct of hostilities in both categories of conflicts without distinction. The Study on Customary International Humanitarian Law by the ICRC, based upon a very detailed examination of official State practice, comes to the conclusion that the concept of military objectives is the same in international and non-international armed conflicts (see Henckaerts and Doswald-Beck 29–32). In practice, armed forces are trained based on the law of international armed conflicts. It is difficult to imagine that the process of selecting targets could be different according to the legal classification of the conflict in which it takes place.
22 As for the reality in non-international armed conflicts, which often feature internal power struggles within a country, it is very difficult to separate military and civilian functions in an often clandestine armed group, and even more difficult to prevent the inevitable intermingling between civilians and fighters. The absence of combatant status in the law of non-international armed conflicts implies that any determination of what serves the military effort of the government or of an armed group is even more difficult to establish than in international armed conflicts. In addition, for most armed groups engaged in asymmetric warfare, attacking even an object of military nature does not result in any meaningful weakening of the war-fighting capacity of governmental armed forces. It is therefore suggested that the concept of military advantage in the definition of military objectives has to be understood more broadly for such armed groups, to include political advantages, as long as the object attacked contributes to military action of the government.
G. Reasons for and Criticism of the Limitation of Attacks to Military Objectives
2. Recent Practice
24 During the Kosovo air campaign, NATO listed government ministries among the legitimate military objectives, independently of their contribution to military action. This appears to have also been US practice in the Iraq-United States War (2003) (see Schmitt  96; see also Schmitt and Weinraub 5). There are also strong indications that television stations were targeted independently of whether they contributed to military action. During the war in Iraq the Baghdad television station was targeted several times, as was the Iraqi information ministry. Some justified the attack against the Belgrade radio and television station on the ground that the transmitters were integrated into the military communications network, which would indeed make them military objectives (see ICTY ‘Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia’ [‘Office of the Prosecutor Report’] paras 71–73). Others, including official NATO statements, generically mentioned the media among legitimate objectives of attacks because they were an essential part of the propaganda machinery of the regime (see Joint Statement on the Kosovo After Action Review presented by Secretary of Defense William S Cohen and Gen Henry H Shelton, Chairman of the Joint Chiefs of Staff, before the Senate Armed Services Committee; General WK Clark; Baroness Symons of Vernham Dean; Burger 131–32; Office of the Prosecutor Report para. 74; and Amnesty International 38–44). The latter interpretation inherently challenges the concept of military objectives. Others suggest that at the very least, media entities that incite the commission of war crimes or other international crimes are legitimate targets (Office of the Prosecutor Report para. 76; Fenrick 496; see also Crimes against Humanity; Genocide; International Criminal Law). When evaluating the legitimacy of these and other attacks during the Kosovo air campaign, an ad hoc Committee of the Office of the Prosecutor of the ICTY criticized the lack of clarity of the law and the Prosecutor decided not to pursue an inquiry. After the conflict between Eritrea and Ethiopia between 1998 and 2000, an arbitral award considered that a power station, which was not yet operational, constituted a military objective because it was capable of meeting wartime needs of communication, transport and industry (Western Front, Aerial Bombardment and Related Claims: Eritrea’s Claims 1, 3, 5, 9–13, 14, 21, 25 & 26 between the State of Eritrea and the Federal Democratic Republic of Ethiopia [Partial Award] para. 117). The Commission added that ‘[t]he infliction of economic losses from attacks against military objectives is a lawful means of achieving a definite military advantage, and there can be few military advantages more evident than effective pressure to end an armed conflict’ (at para. 121). In the 2008 Gaza conflict, Israel attacked infrastructure of the (Hamas-controlled) government, including the Palestinian Legislative Council building, the Ministry of Justice and Gaza main prison. Israel considered these targets to constitute part of Hamas’s mechanism of control, without demonstrating a more direct contribution to military action. This was found to be a violation by the UN Fact-Finding Mission (Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact-Finding Mission on the Gaza Conflict paras 374–93). In July 2011, NATO justified attacks on Libyan state television because it incited violence against civilians (Jachec-Neale 165). During Operation Pillar of Defense against Gaza in 2012, Israel attacked similar targets as in 2008, as well as a TV station linked to Hamas (‘Israel Airstrike Hits Al Aqsa, Hamas TV Station, in High-Rise in Downtown Gaza City’ Huffington Post of 19 November 2012). During Operation Protective Edge in 2014, Israeli attacks against houses of high-ranking members of Hamas that occurred during their absence raised questions about whether Israel considered such houses military objectives (Human Rights in Palestine and Other Occupied Arab Territories: Report of the independent commission of inquiry established pursuant to Human Rights Council resolution S-21/1 para. 45). It is submitted that mere presence of persons who are legitimate targets does not turn a building into a military objective, even when those persons use it to meet. Such a building only becomes a military objective if such persons use it to shelter from attacks or if it contains complex, non-portable infrastructure allowing them to exercise command and control functions (ibid Report on the detailed findings para. 222).
25 Despite the above-mentioned cases, controversies about the scope of the concept of military objectives were not the main challenges in actual practice in recent armed conflicts. Either clearly civilian objects were attacked deliberately or indiscriminately—eg in the conflicts in the former Yugoslavia (see also Yugoslavia, Dissolution of)—or the official targets aimed at by bombardments by Israel, the US and its allies were unquestionably military objectives, but civilians and civilian objects were nevertheless affected and controversies arose whether such incidental losses were excessive or whether all feasible measures to avoid or minimize them, including to avoid mistakes, were taken—eg, in the Iraq–Kuwait War (1990–91), the 2001 war against Afghanistan (Afghanistan, Conflict), the Iraq–United States War (2003), and in the 2008 and 2014 conflicts in Gaza. This focus on the facts, proportionality, and precautionary measures, rendered difficult by the lack of transparency, however, could change with the increasing precision capability of technologically advanced military forces. When such modern weapons technology is accompanied by the necessary technological and intelligence means to verify the nature of the target, the question of what may be attacked again becomes central. Discussions around the last three Israeli campaigns against the Gaza Strip point in this direction.
3. Contemporary Criticism
26 Critics of the definition of military objectives as defined above either argue that it is no longer adapted to the realities of contemporary warfare—particularly Asymmetric Warfare—or they adopt such a broad interpretation of the elements of the two-pronged test that they effectively abandon it (see paras 11–16 above). States tend to espouse the latter approach if they take any critical position at all. Those adopting the former line of criticism question, particularly in contemporary conflicts, the philosophy behind the limitation to military objectives. They point out that the aim of the conflict is the capitulation of a—dictatorial—government or the modification of its decisions. The aim of every armed conflict is to defeat the enemy’s will, and, arguably, acquiring a non-military advantage over the enemy can sometimes more effectively accomplish that aim. Under the widely-used theory of ‘effects based targeting’, the desired goal will result from the effects of attacking specific links, nodes, or objects (Schmitt  60–65; Montgomery 190). This theory does not necessarily imply that the desired goal may go beyond the weakening of the military forces of the enemy or that the physical effects must go beyond the military, but it may facilitate such an understanding. Such an understanding is also favoured by armed groups engaged in an asymmetric armed conflict against superior regular governmental armed forces (see above).
27 According to other theories, the enemy is seen as a system or has five strategic rings, the outermost being the military and the fourth, nearer to the command centre, the civilian population (Warden). Attacks upon certain targets that politically, financially or psychologically sustain an enemy regime may have a greater impact than attacks that affect military operations (Meyer 181). To aim at an impact on persons other than the armed forces may appear particularly called for if those attacking are not prepared to occupy the enemy country, and if there is no fighting on land (eg between NATO and Yugoslavia during the 1999 Kosovo war; see also Occupation, Belligerent). In such a situation, aerial bombardments may run out of military objectives as defined above, before the enemy government is ready to give in (see Baker 11; Roberts 416).
28 Proponents of some contemporary strategic theories go as far as to suggest that the civilian support for the enemy war effort is a legitimate objective of attacks (see also Civilian Participation in Armed Conflict). Bank accounts, financial institutions, shops, and entertainment sites are mentioned (see Dunlap 14). Others consider everything used to prolong the war as a military objective (see Burger 132). Such proposals never clarify whether such criteria would also justify a wider range of legitimate targets for armed groups engaged in asymmetric conflicts.
29 Finally, some authors favour a flexible definition allowing the concept of military objectives to expand or contract according to the intensity, duration, subjects, and location of the conflict (see Fenrick 496). Thus, it is suggested to restrict the number of legitimate targets in interventional kinds of armed conflicts, such as peace enforcement operations conducted on behalf of the international community, as long as the enemy does not launch counter-attacks (see Bring 50–54). Others suggest that more severe restraints should apply when the declared purpose is to promote the cause of human rights (see Bothe 535; Office of the Prosecutor Report para. 37; Humanitarian Intervention). The main difficulties of these approaches lie in defining the scope of application of the proposed special rules compared to that of the normal rules, and in abandoning the traditional equality of belligerents before international humanitarian law. Those difficulties would also be associated with any suggestion to take the reality of armed groups engaged in asymmetric warfare into account (see above).
4. Arguments in Defence of the Limitation of Attacks to Military Objectives
30 While the premise that broader targeting would reduce the length of conflicts and thus be more humanitarian overall is appealing, there are very strong reasons to maintain the existing limitation of targeting to military objectives. First, according to the basic distinction and absolute separation between ius ad bellum (see also Self-Defence; Use of Force, Prohibition of) and ius in bello, the rules applying to those fighting for a just cause and to their enemies must be the same. Any broadening of the category of legitimate targets for the purpose of influencing dictatorial governments would inevitably therefore also weaken the protection of civilians in democracies which could influence their government. Any strategy designed to shorten wars against aggressors will also allow aggressors to shorten their wars. From a practical point of view, respect for international humanitarian law could otherwise not be obtained, since, at least between belligerents, it is always controversial which of them is resorting to force in conformity with the ius ad bellum and which violates the ius contra bellum. From a humanitarian point of view, the victims of the conflict on both sides need the same protection, and they are not necessarily responsible for the violation of the ius ad bellum committed by ‘their’ party. Second, for similar reasons, the same rules must apply in fighting dictatorial and democratic regimes and in non-international armed conflicts to governmental armed forces and armed groups. Third, the experience of World War II has shown that extensive aerial bombardment affecting the civilian population did not succeed either in undermining popular support for the regime or in sufficiently disrupting the economy. Similarly, it is argued that the targeting of infrastructure benefiting equally the civilian population in the Federal Republic of Yugoslavia and Iraq increased rather than decreased popular support for Presidents Milosevic and Saddam Hussein in their respective countries. The same may be true for Hamas in the Gaza Strip. Fourth, and most importantly, no one has come forward with criteria other than the direct contribution to military action, which could guarantee a minimum of humanity in an armed conflict (Humanity, Principle of) and yet be assessed objectively and applied independently of the causes attributed to the parties and the nature of the regimes involved. ‘If the intention directly to influence the enemy population’s determination to fight were recognized as a legitimate objective for military force, then no limit to warfare would remain’ (Oeter 170). If it were lawful to overcome the enemy through acts of violence by gaining advantages other than military, it could also be justified to attack the civilian population as such or hospitals, since such attacks may influence a country to give up. In that case, no legal constraints would survive, only speculation about efficacy, which in addition would have to assume that the enemy is acting rationally (see also Baker 22; Sassòli 195).
31 The concept that only military objectives may be targets of attacks is derived from the principle that the only legitimate aim of warfare is to weaken the military forces of the enemy. Indeed, once its military forces are neutralized, even the politically, psychologically, or economically strongest enemy can no longer resist. This principle is difficult to apply in asymmetric warfare, in particular for armed groups in non-international armed conflicts, and presupposes, on the side of stronger regular governmental forces, a willingness to conduct land warfare and to occupy, if necessary, enemy country. Acts of violence against objects of political, economic, or psychological importance may therefore appear to be more efficient to overcome the enemy. No one has, however, suggested an alternative definition which, first, would be practicable; second, would be as objectively assessable as the contribution to the military effort, and third, would grant a minimum of protection to the civilian population.
32 As for the currently accepted definition of military objectives in Art. 52 (2) AP I, debates about its precise meaning and about whether it is respected in current conflicts focus disproportionately on the practice of aerial forces of technologically advanced States. Critics and large swathes of public opinion believe that those aerial forces do not comply with the restrictions of international humanitarian law, while hard line military experts and advisors adopt expanding interpretations, which their aerial forces fortunately do not apply in actual belligerent practice. That most war victims around the world die or suffer from land warfare and from attacks, which cannot possibly be seen as directed against military objectives, is largely forgotten in public and scholarly debates. The stalemate resulting from discussions about aerial bombardments leads many to doubt whether anything more precise than the admittedly vague Art. 52 (2) AP I could be achieved either in a formal revision process or in a dialogue between experts destined to adapt the law to new realities. Art. 52 (2) AP I is, as are many other parts of the Protocol, a product of consensus. The priorities may therefore be to enforce the existing law where it is clearly violated, to engage in practice-oriented training to obtain good faith (bona fide) respect of those rules, understood in their context and according to their purpose, and to provide information and take action to convince those on the weaker side of asymmetric warfare and their constituencies that the stronger side cares about legal restraints and that the existing rules are not unrealistic for them.
- General WK Clark ‘Effectiveness and Determination. News Articles: NATO’s Role in Kosovo’ (2 June 1999) <www.nato.int/kosovo/articles/a990602a.htm> (18 September 2015).
- Commission of Jurists ‘Rules of Aerial Warfare’ (February 1923) 17 AJIL Supp 245.
- Convention (IX) concerning Bombardment by Naval Forces in Time of War (adopted 18 October 1907, entered into force 26 January 1910) 205 CTS 345.
- Convention concerning the Laws and Customs of War on Land (signed 18 October 1907, entered into force 26 January 1910) 205 CTS 277.
- Convention for the Protection of Cultural Property in the Event of Armed Conflict (adopted 14 May 1954, entered into force 7 August 1956) 249 UNTS 240.
- Declaration of St Petersburg (signed 29 November/11 December 1868, entered into force 29 November/11 December 1868) (1907) 1 AJIL Supp 95.
- Eritrea-Ethiopia Claims Commission Western Front, Aerial Bombardment and Related Claims Eritrea’s Claims 1, 3, 5, 9–13, 14, 21, 25 & 26 between the State of Eritrea and the Federal Democratic Republic of Ethiopia (Partial Award) (19 December 2005) (2006) 45 ILM 396.
- Hague Convention respecting the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land (signed 18 October 1907, entered into force 26 January 1910) (1907) 205 CTS 277.
- HPCR (Program on Humanitarian Policy and Conflict Research at Harvard University) Manual on International Law Applicable to Air and Missile Warfare (2009–10) (CUP Cambridge 2013).
- ICRC ‘Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War’ (2nd edn ICRC Geneva 1958).
- ICTY ‘Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign against the Federal Republic of Yugoslavia’ (8 June 2000) (2000) 39 ILM 1257.
- Israeli Ministry of Foreign Affairs ‘The Operation in Gaza, Factual and Legal Aspects’ (29 July 2009) <http://www.mfa.gov.il> (4 December 2012) paras 101–11.
- ‘Joint Statement on the Kosovo After Action Review presented by Secretary of Defense William S Cohen and Gen Henry H Shelton, Chairman of the Joint Chiefs of Staff, before the Senate Armed Services Committee’ (14 October 1999) Office of Assistant Secretary of Defense News Release No 478-99.
- Prosecutor v Galić (Judgment) ICTY-98-29 (5 December 2003).
- Prosecutor v Milošević (Judgment) ICTY-98-29/1-A (12 November 2009).
- Prosecutor v Tadić (Judgment) ICTY-94-1 (7 May 1997).
- Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3.
- Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 609.
- UN HRCouncil ‘Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact-Finding Mission on the Gaza Conflict’ (25 September 2009) UN Doc A/HRC/12/48 (Goldstone Report).
- UN HRCouncil ‘Human Rights in Palestine and Other Occupied Arab Territories: Report of the Independent Commission of Inquiry Established pursuant to Human Rights Council Resolution S-21/1’ (24 June 2015) UN Doc A/HRC/29/52 and ‘Report of the Detailed Findings’ UN Doc A/ HRC/29/CRP.4.
- United States Department of Defense ‘Law of War Manual’ (12 June 2015).
- United States Military Commissions Act of 2009, Pub L No 111-84, 123 Stat 2574.