Seminar 5 Reading
Seminar 5 - The Law of Targeting
Y. Dinstein, ‘The Conduct of Hostilities Under the Law of International Armed Conflict’ (CUP 2016) Pages 102-
125 and 139-174
Chapter 4 – Lawful Targets of Attack
Classification
The Basic Rule – Article 48 of AP/1 – 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
Military Objectives
Today, principle of military objective has become part of CIL for armed conflict (land, sea and air)
Used in the 1949 Geneva Conventions, but not defined until Art 52(2) of AP/I, which states: Attacks
shall be limited to strictly 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.
Definition largely accepted as part of CIL, even by states such as US who have not ratified AP/I
Abstract and general language used though, and protection not absolute. See for example Art 57(2) of
AP/I, (a)(i) which states that those who plan or decide upon an attach must to ‘everything feasible to
verify that the objectives to be attacked…are military objectives within definition of Art 52(2)’
Arguably definition should have used a catalogue of non-exhaustive illustrations to avoid vagueness.
Particular care must be paid to the words ‘in the circumstances ruling at the time’. Warfare can change
quickly, including the use of objects by the enemy – civilian objects can quickly become military
targets, or vice versa
Combatants
Article 52(2) AP/I only defined objectives in ‘so far as objects are concerned’
For humans, 2 considerations must be weighed:
- First sentence of Article 52(2), the words ‘In so far as’ appearing in sentence 2, serve to stress
that no attempt is made to detract from the generality of the first sentence (see definition above)
- Article 48 hinges upon a configuration between military objectives and civilian objects, and the
civilian population and combatants
Civilian Directly Participating in Hostilities
Civilians are treated differently from combatants generally, and so are entitled to protection from
attack
If civilian directly participate in the hostilities however, they lose their protection and become lawful
targets of attack for such time as they do so. They are thus assimilated to combatants (but remain
unlawful combatants who are not entitled to POW Status)
Animals
Some animals can be lawfully targeted during war time. This includes cavalry horses, explosive
sniffing dogs, and even marine mammals that are trained for military use
The Requirement of a Definite Military Advantage
See Article 52(2) of AP/I – Requirement for Military objectives
Strongly worded on purpose, cannot be a speculative or assumed advantage
The advantage has to be gained from the destruction, capture or neutralisation (denying the use of it
to the enemy without destroying it)
Military advantage is a wide definition – does not have to be an advantage for your own forces. Eg. In
coalitions, sufficient that provides an advantage for a partner
Cannot be a political advantage – eg wrongly applied by the Eritrea-Ethiopia Claims Commission when
it held Ethiopian aerial attack of power station was lawful as was a factor in driving Eritrea to
politically accept a ceasefire – Forcing a change in negotiating stance of enemy is not a proper military
advantage
, Seminar 5 Reading
Whether something is a military advantage will change over time. Eg a church steeple on its own
would not provide this advantage, but would later if enemy snipers were posted there
Military advantage cannot be assessed solely on the basis of tactical or local gains. Is a wider frame of
reference. Supported by almost identical formal declarations of many contracting parties to AP/I,
including the UK, whereby an evaluation of military advantage can be made on the basis of the
advantage anticipated from the attack considered as a whole and not only from isolated or specific
parts of the attack – not about the advantage to a spearhead of a specific attack
Because military advantage not confined to discrete segments of an operation, an air raid for
example, to focus enemy attention to the wrong front before an attack on another could still be a
military advantage as it is part of a bigger operation.
Eritrea-Ethiopia Claims Commission (EECC) stated that a definite military advantage must be
considered in the context of its relation to the armed conflict as a whole at the time of the attack, not
simply in the context of a specific attack
War-Sustaining v War-Fighting
Article 52(2) adverts the nature, location, purpose and use of military objectives ‘making an effective
contribution to military action’. This effective contribution also relates to military action in general, and
there need not be a direct connection with any specific operation.
American view is that economic targets of the enemy that indirectly, but effectively support and
sustain the enemy’s war fighting capability may also be attacked. Whilst it is true such activities may
sustain the war effort, they can only be stopped by imposition of blockades, etc as the link between
such things and military action is too remote
There must be therefore a sufficient proximate nexus to war-fighting. Banks for example cannot be
lawful military targets
The Meaning of Nature, Use, Purpose and Location
Nature of the Objective
Determined by intrinsic character of the object. To satisfy this component under Art 52(2) AP/I, object
must have some inherent attribute which makes an effective contribution to military action – such an
object will therefore automatically constitute a lawful target.
Following non exhaustive list may meet this requirement: fixed military fortifications, temporary
military command and control posts, weapons systems, missiles and rockets, military vehicles,
airfields, ports, and military depots, repair facilities, research facilities for new weapons, intelligence-
gathering centres, co-ordination centres, power plants serving the military, munitions factories,
arteries of transportation used by the military
Use of the Objective
Use of an objective may be at variance with its original nature. If function changes that objects can
become military objectives through how they are used
In cyber warfare for example, military computers for example are computers, which by their nature
are not bad, but the software on them (e.g. code breaking, tatics etc) may be a legitimate target.
In ‘the fog of war’ however, may be difficult to decipher whether an object is being used for a military
purpose or not. In the case of an doubt Art 52(3) provides – ‘In the case of doubt whether an object
which is normally dedicated to civilian purposes, such as a place of worship, house or other dwelling
or a school, is being used to make an effective contribution to military action, it shall be presumed not
to be so used’.
If, and when civilians objects, such as schools, churches etc, however are being used for a military
purpose, the dominant consideration is that in ‘the circumstances ruling at the time’.
Is this negative presumption part of CIL? – US believes not – however attempts, in drafting, to rebut
the presumption for objects located in the contact zone seems to suggest otherwise.
Must be remembered, has to be reasonable doubt for Art 52(3) to be engaged
Purpose of the Objective
More often than not will be determined by either its inherent natured or its de facto use. Words is not
redundant in Art 52(2) though
Military purpose must be assumed not to be stamped on the object from the outset – has to be
determined independently of actual use. Purpose has to be established
ICRC Commentary – ‘the criterion of purpose is concerned with the intended future use of an object,
while that of use is concerned with its present function’
EECC arrived at same conclusion on purpose. Held in Art 52(2) is means ‘the future intended use of
an object’ – UK manual of the law of armed conflict agrees
Seminar 5 - The Law of Targeting
Y. Dinstein, ‘The Conduct of Hostilities Under the Law of International Armed Conflict’ (CUP 2016) Pages 102-
125 and 139-174
Chapter 4 – Lawful Targets of Attack
Classification
The Basic Rule – Article 48 of AP/1 – 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
Military Objectives
Today, principle of military objective has become part of CIL for armed conflict (land, sea and air)
Used in the 1949 Geneva Conventions, but not defined until Art 52(2) of AP/I, which states: Attacks
shall be limited to strictly 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.
Definition largely accepted as part of CIL, even by states such as US who have not ratified AP/I
Abstract and general language used though, and protection not absolute. See for example Art 57(2) of
AP/I, (a)(i) which states that those who plan or decide upon an attach must to ‘everything feasible to
verify that the objectives to be attacked…are military objectives within definition of Art 52(2)’
Arguably definition should have used a catalogue of non-exhaustive illustrations to avoid vagueness.
Particular care must be paid to the words ‘in the circumstances ruling at the time’. Warfare can change
quickly, including the use of objects by the enemy – civilian objects can quickly become military
targets, or vice versa
Combatants
Article 52(2) AP/I only defined objectives in ‘so far as objects are concerned’
For humans, 2 considerations must be weighed:
- First sentence of Article 52(2), the words ‘In so far as’ appearing in sentence 2, serve to stress
that no attempt is made to detract from the generality of the first sentence (see definition above)
- Article 48 hinges upon a configuration between military objectives and civilian objects, and the
civilian population and combatants
Civilian Directly Participating in Hostilities
Civilians are treated differently from combatants generally, and so are entitled to protection from
attack
If civilian directly participate in the hostilities however, they lose their protection and become lawful
targets of attack for such time as they do so. They are thus assimilated to combatants (but remain
unlawful combatants who are not entitled to POW Status)
Animals
Some animals can be lawfully targeted during war time. This includes cavalry horses, explosive
sniffing dogs, and even marine mammals that are trained for military use
The Requirement of a Definite Military Advantage
See Article 52(2) of AP/I – Requirement for Military objectives
Strongly worded on purpose, cannot be a speculative or assumed advantage
The advantage has to be gained from the destruction, capture or neutralisation (denying the use of it
to the enemy without destroying it)
Military advantage is a wide definition – does not have to be an advantage for your own forces. Eg. In
coalitions, sufficient that provides an advantage for a partner
Cannot be a political advantage – eg wrongly applied by the Eritrea-Ethiopia Claims Commission when
it held Ethiopian aerial attack of power station was lawful as was a factor in driving Eritrea to
politically accept a ceasefire – Forcing a change in negotiating stance of enemy is not a proper military
advantage
, Seminar 5 Reading
Whether something is a military advantage will change over time. Eg a church steeple on its own
would not provide this advantage, but would later if enemy snipers were posted there
Military advantage cannot be assessed solely on the basis of tactical or local gains. Is a wider frame of
reference. Supported by almost identical formal declarations of many contracting parties to AP/I,
including the UK, whereby an evaluation of military advantage can be made on the basis of the
advantage anticipated from the attack considered as a whole and not only from isolated or specific
parts of the attack – not about the advantage to a spearhead of a specific attack
Because military advantage not confined to discrete segments of an operation, an air raid for
example, to focus enemy attention to the wrong front before an attack on another could still be a
military advantage as it is part of a bigger operation.
Eritrea-Ethiopia Claims Commission (EECC) stated that a definite military advantage must be
considered in the context of its relation to the armed conflict as a whole at the time of the attack, not
simply in the context of a specific attack
War-Sustaining v War-Fighting
Article 52(2) adverts the nature, location, purpose and use of military objectives ‘making an effective
contribution to military action’. This effective contribution also relates to military action in general, and
there need not be a direct connection with any specific operation.
American view is that economic targets of the enemy that indirectly, but effectively support and
sustain the enemy’s war fighting capability may also be attacked. Whilst it is true such activities may
sustain the war effort, they can only be stopped by imposition of blockades, etc as the link between
such things and military action is too remote
There must be therefore a sufficient proximate nexus to war-fighting. Banks for example cannot be
lawful military targets
The Meaning of Nature, Use, Purpose and Location
Nature of the Objective
Determined by intrinsic character of the object. To satisfy this component under Art 52(2) AP/I, object
must have some inherent attribute which makes an effective contribution to military action – such an
object will therefore automatically constitute a lawful target.
Following non exhaustive list may meet this requirement: fixed military fortifications, temporary
military command and control posts, weapons systems, missiles and rockets, military vehicles,
airfields, ports, and military depots, repair facilities, research facilities for new weapons, intelligence-
gathering centres, co-ordination centres, power plants serving the military, munitions factories,
arteries of transportation used by the military
Use of the Objective
Use of an objective may be at variance with its original nature. If function changes that objects can
become military objectives through how they are used
In cyber warfare for example, military computers for example are computers, which by their nature
are not bad, but the software on them (e.g. code breaking, tatics etc) may be a legitimate target.
In ‘the fog of war’ however, may be difficult to decipher whether an object is being used for a military
purpose or not. In the case of an doubt Art 52(3) provides – ‘In the case of doubt whether an object
which is normally dedicated to civilian purposes, such as a place of worship, house or other dwelling
or a school, is being used to make an effective contribution to military action, it shall be presumed not
to be so used’.
If, and when civilians objects, such as schools, churches etc, however are being used for a military
purpose, the dominant consideration is that in ‘the circumstances ruling at the time’.
Is this negative presumption part of CIL? – US believes not – however attempts, in drafting, to rebut
the presumption for objects located in the contact zone seems to suggest otherwise.
Must be remembered, has to be reasonable doubt for Art 52(3) to be engaged
Purpose of the Objective
More often than not will be determined by either its inherent natured or its de facto use. Words is not
redundant in Art 52(2) though
Military purpose must be assumed not to be stamped on the object from the outset – has to be
determined independently of actual use. Purpose has to be established
ICRC Commentary – ‘the criterion of purpose is concerned with the intended future use of an object,
while that of use is concerned with its present function’
EECC arrived at same conclusion on purpose. Held in Art 52(2) is means ‘the future intended use of
an object’ – UK manual of the law of armed conflict agrees
