Distinction and Military Objective

1. Distinction and Military Objective Law of War Week 5

2. Peace: International Human Rights Law WAR: Int. Humanitarian law

3. Core Principles of Hague Law • Military Necessity (lexspecialis) • Distinction • Proportionality Incidental damage cannot be excessive in relation to military advantage • Unnecessary Suffering Means/methods “calculated to cause” forbidden The right of belligerents to adopt means of injuring the enemy is not unlimited. ~ Hague IV, art 22.

4. Military Necessity The reason for lexspecialis

5. IHL Compromise • “IHL is a compromise between humanity and military necessity, a compromise which cannot always satisfy humanitarian agendas, but which has the immense advantage that it has been accepted by states as law that can be respected even in war.” • Marco Sassoli (former ICRC legal advisor) • “Military necessity is an attempt to realize the purpose of armed conflict, gaining military advantage, while minimizing humanitarian suffering and physical destruction; it is battlefield violence counterbalanced by humanitarian considerations.” • Gary Solis

6. Distinction

9. Latin: Caediteeos. NovitenimDominus qui sunteius English: "Kill them all. For the Lord knows them that are His

11. Custom at the Time • No Standing armies • Armies were enticed to war by the prospect of pillage and rapine • No real distinction was drawn between combatants and non-combatants.

12. Post WWII • Shimoda…pg 291 “Against the defended city and place, indiscriminate bombardment is permitted, while in the case of an undefended city and place, bombardment is permitted only against combatant and military installations (military objectives)…” Far from the front No pressing danger

13. AP I • Art 59. Non-defended localities1. It is prohibited for the Parties to the conflict to attack, by any means whatsoever, non-defended localities.2. The appropriate authorities of a Party to the conflict may declare as a non-defended locality any inhabited place near or in a zone where armed forces are in contact which is open for occupation by an adverse Party.Such a locality shall fulfil the following conditions:(a) all combatants, as well as mobile weapons and mobile military equipment must have been evacuated;(b) no hostile use shall be made of fixed military installations or establishments;(c) no acts of hostility shall be committed by the authorities or by the population; and(d) no activities in support of military operations shall be undertaken.

14. Article 52 • It provides that it is unlawful to bomb “as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village, or other area containing a similar concentration of civilians or civilian objects.” This is a useful and humane rule that eliminates the territorial or mass-bombing attacks so frequently resorted to in World War II, and to a lesser degree in the Vietnam conflict.

15. Basic Rule Now • ‘…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.’ AP I, Art. 48 • You can only direct attacks at combatants • You must distinguish civilian objects from military objects

16. Basic Rule – Implication • 1) Combatants distinguish themselves • 2) They only target military objects

17. Al Firdos Bunker

19. Al Firdos Bunker To constitute a violation of distinction, the act must have been committed willfully, “intentionally in the knowledge . . . That civilians or civilian property were being targeted.” ~ ICTY (Blaskic case)

20. Distinction Today? • “The two types of battlespaces--the conventional space and the technological space--will overlap and intersect with each other, and will be mutually complementary as each develops in its own way. . . . At the same time, with the progressive breaking down of the distinction between military technology and civilian technology, and between the professional soldier and the non-professional warrior, the battlespace will overlap more and more with the non-battlespace, serving also to make the line between these two entities less and less clear. Fields that were formerly isolated from each other are being connected. Mankind is endowing virtually every space with battlefield significance. All that is needed is the ability to launch an attack in a certain place, using certain means, in order to achieve a certain goal. Thus, the battlefield is omnipresent. Just think, if it's even possible to start a war in a computer room or a stock exchange that will send an enemy country to its doom, then is there non-battlespace anywhere?” ~ Unrestricted Warfare

21. Mixed Objects • Civilian workers in a factory that supports the military • Rail-lines owned and operated by civilians that move materials • Pipe-lines • Ports • Farms?

22. Indiscriminate Attacks • Attacks on military objects become indiscriminate and are treated as direct attacks on civilians if pursued without regard to distinction principles. (300)

23. Martens Clause • What is the general idea? • Unless a code of more specific law is present, populations are protected by principles of international law as they result from established usage…and public conscience. • Context of bombing might be considered • Planned vs. Immediate? (530)

24. Does IAC vs. NIAC matter? • See AP I – 48 • See AP I – 44.3 • How to reconcile? See Solis at pg. 254.

25. Uncertain People • Who is a civilian: Pg 297 of Solis: Individually, a person shall be considered to be a civilian for as long as there is a doubt as to his or her status • A civilian: Is defined negatively-anyone who is not a combatant (pg 299 – Galic case) • AP I – 51.3 – when does a civilian cease to be a civilian?

26. Kupreskic Civilians and objects can lose their protection when: • When civilians abuse their rights • When the object of the military attack is comprised of military objectives and belligerents cannot avoid collateral damage • When civilians may legitimately be the object of reprisals

28. People w/ Military Implications • Goat herder? • Surrendering Solider?

30. Military Objective Application of Military Necessity / Distinction

31. Targeting Board Analysis • Is it a lawful target? • Military objective? 2 part test • Misused protected place? • Any special protections (e.g., rqmt to warn) • Is the proposed weapon lawful under the circumstances? • How can collateral damage and incidental injury be minimized? • Will attack cause excessive collateral damage or incidental injury? • Even against legitimate target are unlawful if using improper means of warfare • Does the target and choice of means/method comply with the ROE (which may be more restrictive)?

32. Targeting “Targeting is the process of selecting enemy objects to be attacked, assigning priorities to the selected objects, and matching appropriate weapons to those objects to assure their destruction.” ~ Solis, pg. 519 AP I 52.2 API 48

33. Military Objectives • 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.API, 52(2)

34. Military Objectives • Must offer a concrete and perceptible military advantage rather than a hypothetical or speculative one • The military advantage must not be purely political – e.g. to force a change in negotiating stance

35. Object vs. Objective • Solis at page 522 • USS Constitution

36. NLPU • ‘Nature’ • The type of object: Its inherent characteristics, e.g. tanks, fighter aircraft, ammunition depots • ‘Location’ • geographic spaces e.g. crossroads, mountain passes, river fords • ‘Purpose’ • The intended future use e.g. civilian trucks or POL which can reasonably be expected to be used in the enemy’s war effort • ‘Use’ • current function e.g. a civilian tower being used as an observation post or a school being used as a command post

37. Scenarios: • Enemy Morale attacks (the blitz?) (Solies 523) • Prime economic and industrial potential? (solis 522) • Parachutist? (524) • Paratrooper (524) • Dangerous Forces sites (529)

38. War-Sustaining? • NWP 1-14M, US Commander’s Handbook on the Law of Naval Operations

39. Economic Objects? • NWP 1-14M, US Commander’s Handbook on the Law of Naval Operations

40. Targeting I • “I felt that on the first night the power should have gone off, and major bridges around Belgrade should have gone into the Danube, and the water should be cut off so the next morning the leading citizens of Belgrade would have got up and asked ‘why are we doing this?’ and asked Milosevic the same question.” ~ Lt Gen Mike Short

42. Military Objective • Dinstein: “The advantage must be military and not, say, purely political.” • But can have political or other consequences in addition to contributing to military action • Political or other consequences may drive which military objective to strike

43. Targeted Killings • Intentional Killing of a specific civilian or unlawful combatant who cannot be reasonably apprehended, who is taking a direct part in hostilities… • Al-Alwaki? • U.S. President? • Page 538 and Callie’s article