Research Paper Series / Collection des travaux de recherche

N° 2 / 2006

The Legal Regime Applicable to Targeting

Military Objectives in the Context of Contemporary Warfare

Alexandra Boivin

Preface by Yves Sandoz

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PREFACE Is international humanitarian law (IHL) adapted to present warfare or is it necessary to begin thinking about further developing the law? Some believe that the time has come to envisage a serious revision of the law in order to ensure that IHL remains relevant in the face of new types or new means of warfare. Others argue that obtaining consensus on new evolutions would be far too difficult, causing great incertitude regarding the prospect of real progress. They further argue that the many years necessary to negotiate new instruments, and then to obtain formal ratification or adhesion would bring about a period of destabilisation, and that, as a result, the basic principles of IHL should be held out as still perfectly valid. For those supporting the latter view, the priority today should be on defending against any attempt to weaken the law and to obtain universal ratification of the 1977 additional Protocols to the Geneva Conventions. On this first question, there is therefore no consensus. But everybody agrees on the fact that one of the major problems with IHL is its weak implementation and that more effort should be focused on addressing this particular problem. Aside from ongoing training of the military and dissemination of the basic principles of the law to the civilian population, the past fifteen years have seen serious progress in the implementation of IHL through the reinforcement of penal sanctions. The establishment of ad hoc international criminal courts and of the International Criminal Court are significant developments in this respect. To fight impunity is not only the reflection of a popular need for justice in the face of particularly odious crimes, but also a key factor in preventing further violations of the law. The development of international criminal law with the momentum it generates for the introduction into national legislations of penal sanctions for violations of IHL makes it indispensable to engage in a process of clarification of the law. Criminal law cannot satisfy itself of legal provisions that are unclear. A judge must be in a position to establish whether a violation has been perpetrated in order to decide whether the accused is guilty. This requirement brings to light the lack of precise meaning that attaches to some provisions of IHL. This is undeniably a weakness of the law. It is particularly true of provisions concerning the conduct of hostilities, which were formulated at the beginning of the 19th century (at The Hague Conferences of 1899 and 1907) and reaffirmed or developed in the additional Protocol I of 1977, the Geneva Conventions having not seriously tackled this question in 1949. The reaffirmation and development that took place in the 1970s was not an easy process and it entailed arduous negotiations. Indeed, the provisions governing the conduct of hostilities constitute some of the most delicate rules of IHL. At the time of negotiation, some believed that stricter rules were necessary because technological developments offered the possibility of using means of warfare with a destructive capacity endangering the entire planet. Others feared that codifying stricter rules would prevent the successful accomplishment of military campaigns by imposing legal requirements that unfairly burdened the attacker. The 1974 – 1977 Diplomatic Conference was unable to reconcile these positions. The Delegates' preference for adopting all provisions by consensus drove them to agree on vague formulations, opening the door to a variety of divergent interpretations.

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As a result, the judge that has to decide on alleged violations of the rules governing the conduct of hostilities today faces a particularly challenging task. The ad hoc international criminal tribunals have already made an important contribution to the clarification process and the International Criminal Court will certainly further contribute to this effort. However, due to a “political lack of clarity” regarding some aspects of IHL concerning the conduct of hostilities, judges are likely to be hesitant to substitute themselves for a hesitant legislator. This problem has already manifested itself in the context of the work carried out by the International Criminal Tribunal for the former Yugoslavia. After having examined the final report produced in July 2000 by an ad hoc committee established to evaluate the situation, the Prosecutor of this Tribunal chose not to further enquire into possible violations of IHL committed during the 1999 NATO bombing campaign against the Federal Republic of Yugoslavia. In so deciding, the Prosecutor invoked, inter alia, the lack of clarity of some provisions of IHL. In order to address the issue, one might envisage new legislative discussions. Yet, it is likely that the differences of opinion expressed in the 1974 – 1977 Diplomatic Conference will reappear. A reasonable and perhaps more constructive approach would be to encourage a dialogue between the military and the humanitarian lawyers (with a mix of specialists in IHL and in criminal law) in order to clarify the interpretation to be given to key provisions of IHL governing the conduct of hostilities. Where possible, this dialogue should be based on an analysis of practical cases, with the aim in the mid term to reach a consensus at a policy level on an interpretation of existing provisions, and perhaps even on the necessity of adopting new provisions. As a first step toward this dialogue, it is indispensable to produce in-depth but accessible explanations of the provisions and of the controversies that surround their interpretation. This is precisely the purpose of the present document, which attempts, in a modest way, to explain what underlies notions as complex as “precautionary measures” in attack or the principle of proportionality between the military advantage expected and the risk of incidental civilian damage. This document does not pretend to have the last word on any of these notions but it offers a solid basis for further discussion. I wish here to thank Alexandra Boivin, who devoted with great competence much time to this endeavour. I would also like to thank all of those who made this study possible, in particular the Swiss Federal Department for Foreign Affairs (DFA) and the University Centre for International Humanitarian Law (UCIHL). I do hope that this document will serve its purpose, which is to further dialogue on the interpretation of certain provisions of IHL in order to improve their implementation and the repression of their violation. And, of course - we have never to forget this ultimate ambition – to improve the fate of civilians caught up in the torments of war. Yves Sandoz February 2006

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS ......................................................................................................... 2 EXECUTIVE SUMMARY ............................................................................................................. 3 INTRODUCTION .......................................................................................................................... 5 PART ONE – TARGET SELECTION .......................................................................................... 8 I. History of codification .......................................................................................................... 8 II. Two-pronged test ................................................................................................................15

A. Effective contribution to military action ..................................................................18 B. Definite military advantage......................................................................................21

III. Contentious targets ..............................................................................................................23 A. Dual-use targets.......................................................................................................23 B. Notional targets .......................................................................................................24

i. Effects-based targeting and centres of gravity .................................................25 ii. Recent practice................................................................................................27

C. War-sustaining capability ........................................................................................29 PART TWO – LIMITING COLLATERAL DAMAGE.............................................................. 32 I. Indiscriminate attacks ..........................................................................................................32 II. Precautionary measures .......................................................................................................35 III. Minimum feasible damage ...................................................................................................38 IV. Proportionality.....................................................................................................................41

A. Overview of the principle .......................................................................................41 B. Textual interpretation ..............................................................................................43 C. Interpretative difficulties .........................................................................................44

i. Risk to one’s own force..................................................................................45 ii. Factoring in damage over time and space........................................................48

PART THREE – SPECIFICALLY PROTECTED OBJECTS .................................................. 54 I. Objects necessary for the provision of medical care and humanitarian relief........................54

A. Medical care............................................................................................................55 B. Humanitarian relief and the survival of the population ............................................56

II. Undefended areas and protected zones.................................................................................59 A. Undefended areas....................................................................................................59 B. Protected zones .......................................................................................................60

III. Cultural Property .................................................................................................................62 A. Overview of the regimes .........................................................................................63 B. Rules regulating targeting ........................................................................................65

i. Criteria for becoming a military objective .......................................................65 ii. Precautionary measures ..................................................................................67

IV. Works and installations containing dangerous forces...........................................................68 A. Loss of protection ...................................................................................................69 B. Defensive allowance ...............................................................................................70

V. Natural environment............................................................................................................72 A. Widespread, severe and long-term damage..............................................................75 B. Using the environment as a weapon ........................................................................77

VI. Objects involved in peacekeeping operations.......................................................................79 A. Distinction between keeping and enforcing peace ...................................................80 B. Loss of protection ...................................................................................................81

CONCLUSION ............................................................................................................................. 83 BIBLIOGRAPHY......................................................................................................................... 86

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LIST OF ABBREVIATIONS API Protocol Additional to the Geneva Conventions of 12 August 1949, and relating

to the Protection of Victims of International Armed Conflicts, 8 June 1977 CCD Conference of the Committee on Disarmament CDDH Diplomatic Conference on the Reaffirmation and Development of International

Humanitarian Law Applicable in Armed Conflicts GCI Convention (I) for the Amelioration of the Condition of the Wounded and Sick in

Armed Forces in the Field, 12 August 1949 GCII Convention (II) for the Amelioration of the Condition of Wounded, Sick and

Shipwrecked Members of Armed Forces at Sea, 12 August 1949 GCIII Convention (III) Relative to the Treatment of Prisoners of War, 12 August 1949 GCIV Convention (IV) Relative to the Protection of Civilian Persons in Time of War ICRC International Committee of the Red Cross ICTY International Criminal Tribunal for the former Yugoslavia IHL International Humanitarian Law NATO North Atlantic Treaty Organisation UXO Unexploded ordnances

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EXECUTIVE SUMMARY The question of "targeting" is receiving growing publicity. The incidental loss of civilian life and damage to civilian property resulting from aerial bombing campaigns is at the heart of numerous political debates. World public opinion is demanding that governments account for the "collateral damage" caused by their armed forces. This subject is also a source of legal controversy. Analysts disagree on the question of whether or not the current regime applicable to targeting is sufficient. Some believe that the rules should be tightened in light of increasingly sophisticated means and methods of combat. Others invoke the precision ability of these same means and methods to bolster their position that the existing rules are too stringent. Then there is the difficulty of evaluating the legality of specific targeting decisions, which requires an accurate assessment of facts in the circumstances ruling at the time. Reconstructing the decision-making process, a large part of which takes place in the fog of war is, to say the least, a challenging task. Further compounding the problem is the virtual absence of judicial interpretations of the laws governing the conduct of hostilities. The legal regime applicable to targeting must be seen in the wider context of future advances in the field of international criminal law. With the coming into force of the Rome Statute of the International Criminal Court in July 2002, the possibility of prosecuting individuals for breaches of the laws governing the conduct of hostilities is no longer a distant prospect. This study seeks to clarify the normative framework through an examination of cases taken from recent armed conflicts of an international character. Specifically, particular attention is paid to the practice of the United States and its allies in the 1990-1991 Persian Gulf War, the 1999 NATO intervention in Kosovo, the 2001-2002 war in Afghanistan and the 2003 war against Iraq. Cases are also taken from the 1992-1995 war in Bosnia-Herzegovina as well as the Israeli-Palestinian conflict, since the outbreak of the second intifada. Despite the small number of cases available for analysis, there is a marked trend among technologically advanced States toward targeting objects that have a doubtful military status on the basis that they produce the most efficient outcome. Such a development cannot be wholly rejected as contrary to the laws applicable to targeting nor can it be fully embraced. This study endeavours to circumscribe the extent to which certain controversial targets can be admitted into the category of legitimate military objectives by identifying and analysing some of the most contentious interpretations of the relevant rules. In approaching the legal regime applicable to targeting from the perspective of contemporary challenges, the study is intended as a first step in furthering dialogue between military and civilian legal experts the study The study focuses on how objects become legitimate military objectives (Part One), the principles involved in minimising collateral damage (Part Two), and the regimes of special protection that apply to certain objects under the law governing the conduct of hostilities (Part Three). The study is an initiative of the Geneva based University Centre for International Humanitarian Law (UCIHL). It was entirely funded by the Federal Department of Foreign Affairs of the Government of Switzerland and carried out under the supervision of Yves Sandoz. Together with the UCIHL, the author expresses her gratitude to the Swiss Government for making this project possible and extends heartfelt thanks to Yves Sandoz for the time and effort he invested in this study.

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INTRODUCTION The very idea of contemporary warfare suggests that the reality of the 21st century battlefield is markedly different from that of its predecessor. Yet so much of the violent struggles that continue to oppose people in the world today is by no means novel. Despite revolutions in military technology and the new geopolitical environment of the post-Cold War era, the majority of wars currently being fought involve conventional weapons used in pursuance of causes that are rooted in the last century and that either oppose groups of armed non-State actors to government forces or to other groups of so-called “rebels”. In legal parlance, these are referred to as internal armed conflicts. Much less prevalent but of a considerably higher profile are recent international armed conflicts that involve the use of force by one or a coalition of Western States against governments that have failed to meet the demands of the international community, in one way or another. Aside from the thorny issue of the legality of such interventions, these conflicts raise new questions for the laws governing international armed conflicts.1 They also provide an opportunity to reflect on the continued relevance of certain norms applicable to the conduct of hostilities in the context of contemporary warfare. Due to the media attention that surrounds “interventionist conflicts” – translating into live broadcasts from the battlefield – there is growing publicity being given to the question of “targeting”2. The incidental loss of civilian life and damage to civilian property resulting from aerial bombing campaigns is not only a hot political topic with world public opinion demanding that governments account for the “collateral damage” caused by their armed forces. It is also a source of legal controversy. Military experts tend to accuse legal advisers of misunderstanding the targeting process; legal advisers tend to accuse military experts of sidestepping their obligations. Analysts on all sides disagree on the question of whether or not the current regime applicable to targeting is sufficient. Some believe that the rules should be tightened in light of increasingly sophisticated means and methods of combat, while others invoke the precision ability of these same means and methods to bolster their position that the existing rules are too stringent. Then there is the difficulty of evaluating the legality of a specific targeting decision. This requires an accurate assessment of facts, the most important of which are the circumstances ruling at the time of the decision. Reconstructing the decision-making process, a large part of which takes place in the fog of war is a challenging task, to say the least. Further compounding the problem is the virtual absence of judicial interpretations of the laws governing the conduct of hostilities. Admittedly of a different order, another obstacle to resolving the controversy that surrounds the question of targeting is that much of the current debate focuses on the practice of the United States. This is partly due to the central role it has played in recent conflicts but it is also a function of the large place the United States Department of Defense gives to legal advisers in the targeting process. It is because the United States purports to develop its military strategy 1 Throughout this paper, the expression “laws of armed conflict” is used to refer to the body of rules and customary norms that regulate the conduct of hostilities and the protection of victims of war. 2 The United States Joint Forces Command Glossary defines ‘targeting’ as: “The process to detect, select, and prioritize targets; match the appropriate action; and assess the resulting effects based on the commander's objective, guidance, and intent” (available online: <http://www.jfcom.mil/about/glossary.htm>). Although “targeting” is a military term that has a precise operational meaning, throughout this paper it is used in a broad sense to refer to the process of selecting military objectives (alternately referred to as “targets”), choosing means and methods of attack, and carrying out an attack.

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within a legal framework that takes the laws of international armed conflict into account that so much is made of its practice. Unfortunately, the disproportionate amount of attention paid to targeting incidents involving the American military has created a widely-held belief that this State largely disregards the applicable rules. This in turn has caused many American military experts and advisers to adopt a hard line position in defending their interpretation of the laws regulating targeting. The result is somewhat of a stalemate. In venturing an analysis of the legal regime applicable to targeting in international armed conflicts, one is therefore faced with an abundance of conflicting literature, a sparse number of documented incidents, a quasi-absence of case-law, and a U.S.-centric debate. What can one hope to achieve? First, any effort at clarifying the normative framework must be seen in the wider context of future advances in the field of international criminal law. With the coming into force of the Rome Statute of the International Criminal Court3 in July 2002, the possibility of prosecuting individuals for breaches of the laws governing the conduct of hostilities is no longer a distant prospect. Second, despite the small number of cases available for analysis, there is a marked trend among the United States and its allies toward targeting objects that have a doubtful military status on the basis that they produce the most ‘efficient’ outcome. This development cannot be wholly rejected as contrary to the laws of targeting nor can it be fully embraced. Circumscribing the extent to which certain controversial targets can be admitted into the category of legitimate military objectives is one of the goals pursued by this study. Finally, in approaching the legal regime applicable to targeting from the perspective of contemporary challenges, it is hoped that light will be shed on areas that require further consultation between military experts and legal advisers. The search for common ground is predicated on a clear understanding of wherein lie the sources of divergence.4 Although military objectives include combatant personnel, this study deals exclusively with the protection of civilian objects. The protection of the civilian population qua population is therefore only dealt with to the extent that it is relevant to the law applicable to civilian objects. In other words, this study does not broach the subject of distinguishing between combatants and civilians nor does it deal with the issue of civilians losing their protection as a result of their participation in hostilities. There are three parts to this study. The first two correspond to what is posited as the analytical steps involved in the targeting process: (1) choosing the targets, which is about determining what constitutes a legitimate military objective, and (2) deciding ‘when’, ‘how’ and ‘if’ to

3 Rome Statute of the International Criminal Court, 17 July 1998 [hereinafter Rome Statute], reprinted in A. Roberts & R. Guelff, eds., Documents on the Laws of War, 3rd ed., Oxford, Oxford University Press, 2000 at 667. 4 In a bid to encourage renewed dialogue on a less confrontational and accusatory basis, William J. Fenrick has aptly written: “If the application of the law applicable to targeting and proportionality is to become more transparent and, one hopes, more humane, outsiders, including military experts and legal advisers not directly involved in particular conflicts, should learn from the military planning process. A vigorous informed discussion of targeting and proportionality issues based on case studies, both historical and hypothetical, can contribute substantially to clarification of how the law can and should be applied. As with military plans, case studies may require reliance upon arbitrary assumptions. If, however, the assumptions are recognized as such and open to revision, the case studies will be useful and have a relative validity. The law applicable to targeting and proportionality must be brought down to earth” (“The Law Applicable to Targeting and Proportionality After Operation Allied Force: A View From the Outside” 3 Yearbook of International Humanitarian Law (2000) 53 at 80).

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carry out an attack against the selected targets. These steps are often collapsed in practice such as when a field commander has to make an on-the-spot decision about attacking an unforeseen target, and then finds himself or herself simultaneously assessing whether the object is a military objective and how to attack it without causing disproportionate levels of civilian casualties. It is nonetheless useful to treat the two steps as separate if only because failing to do so might encourage a discussion that focuses solely on the admissibility of a certain level of collateral damage, rather than on the key question of whether or not an object should have been an admissible target in the first place. In presenting the law applicable to target selection, Part One traces the evolution of the definition of military objective and analyses the criteria for determining when an object can be said to be a legitimate target. Then, three contentious categories of targets are examined more closely: dual-use facilities; notional targets, such as political will and civilian morale; and objects that indirectly contribute to the enemy’s capacity to wage war. Part Two is entitled “Limiting Collateral Damage” with a view to emphasizing the reason that law intervenes when an attacking Party decides what means and methods of combat to employ when attacking a selected target. This second part is the occasion to articulate the principles of proportionality and minimum feasible damage, and to clarify how they relate to each other in the normative framework applicable to targeting. In discussing the elements that go into an attacking Party’s assessment of proportionality, special attention is given to the element of risk to one’s own force and the question of factoring in damage over time and space. The third and last part of this paper is dedicated to objects that benefit from specific measures of protection under the laws of international armed conflict. Perhaps with the exception of objects involved in peacekeeping operations, the literature abounds with in-depth analyses of the legal regimes applicable to most of the objects discussed. As such, Part Three focuses on systematising the available information while honing in on the rules that are specific to the question of targeting.

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PART ONE – TARGET SELECTION The principle of distinction lies at the heart of the entire legal edifice governing the conduct of hostilities.5 For the rule that prohibits attacks against civilian objects to have any meaning at all, it is necessary to establish what constitutes a civilian object and what constitutes a legitimate target of attack. From a humanitarian perspective, it may appear preferable to begin by defining a civilian object and provide such objects with a blanket protection. However, the reality of contemporary warfare is that objects which are typically thought of as being civilian become valid military objectives because of the role they play in combat operations. Some targets are inherently military but most targets become military because of the circumstances surrounding their location, purpose or use. The focus has therefore been on the definition of “military objective”. The term has developed around carefully negotiated criteria that leave room for interpretation according to the circumstances ruling at the time, while seeking to coin an acceptable balance between humanitarian and military considerations. This Part of the study is divided into three sections. First, history is examined with a view to setting out the evolution of the notion of military objective and understanding its current codification at Article 52(2) of the 1977 Additional Protocol I to the Geneva Conventions of 12 August 1949 (I). Second, the two-pronged test for establishing that an object constitutes a military objective is presented and analysed (II). Third, targets that pose particular challenges to the application of the two-pronged test are identified and discussed (III). I. History of codification The technological developments of the late 19th and early 20th century, namely the development of long-range weapons and air warfare, created a fundamental challenge to the rule of distinction. This led to the first attempt at translating the notion of ‘military objective’ into operational language. In 1923, a group of experts who had been given a mandate at the Washington Conference on Disarmament the preceding year gathered in The Hague and drafted a set of rules specific to air warfare.6 The most important provisions related to aerial bombing and codified the principle that aerial bombardment to terrorize the civilian population, or to destroy or damage private property is prohibited. Attacks were confined to ‘military objectives’, which the 1923 Hague Rules defined as objects “of which the destruction or injury would constitute a distinct military advantage to the belligerent.”7 5 The principle of distinction is codified at Article 48 of the First Additional Protocol, entitled “Basic Rule”: “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” (Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977 [hereinafter API]). 6 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, never adopted [hereinafter 1923 Hague Rules], reprinted in Roberts & Guelff, supra note 3 at 139. The dangers posed by aerial bombardments were already felt in 1899 and in 1907, on the occasion of the two Hague Peace Conferences where a first attempt was made to codify a prohibition relating to the use of balloons. “1899 Hague Declaration 1, prohibiting the launching of projectiles and explosives from balloons and other methods of a similar nature, entered into force in 1899 but, in accordance with its terms, expired after five years. It was replaced by the similar 1907 Hague Declaration (XIV) prohibiting the discharge of projectiles and explosives from balloons, which entered into force in 1909 and technically is still binding. However the 1907 Declaration is of relatively minor contemporary significance.” (Roberts & Guelff, Prefatory Note, ibid.). 7 1923 Hague Rules art. 24(1).

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The drafters drew up a list of legitimate military objectives, which included military forces; military works; military establishments or depots; factories constituting important and well-known centres engaged in the manufacture of arms, ammunition or distinctively military supplies; and lines of communication or transportation used for military purposes.8 The Commission of Jurists then formulated a prohibition against targeting these objects when doing so would amount to an indiscriminate attack against the civilian population, without however defining what was meant by the term ‘indiscriminate attack’.9 Both the list and the prohibition of ‘indiscriminate attacks’ were heavily criticised. The list of military objectives was described as either too limiting and not reflecting customary practice, or too suggestive from the point of view of those who disliked the very idea that a list of legitimate targets could be entrenched in a treaty instrument. Some nations also feared that the prohibition against ‘indiscriminate attacks’ would be interpreted as covering any incidental civilian casualties. Since there were no agreed upon criteria for determining when a ‘well-intended’ attack became indiscriminate, it was felt that the formulation imposed too heavy a burden on the attacker who could be blamed for any unintended collateral damage.10 Although they were never adopted in a binding legal instrument, the 1923 Hague Rules were regarded “as an authoritative attempt to clarify and formulate rules of law governing the use of aircrafts in war and [as] a convenient starting point for any future steps in this direction.”11 Following three important international armed conflicts that involved the air force of major powers in the 1930s, namely the Italian invasion of Ethiopia (1935-1936), the German intervention in the Spanish civil war (1936-1939), and the Japanese invasion of China (1937-1939), new momentum gathered around the principles expounded by the Hague Air Rules. In 1938, the League of Nations unanimously adopted a resolution that recognised three fundamental principles of international law applicable to air warfare. These were directly inspired from the 1923 Rules: (1) direct attacks against the civilian population are unlawful; (2) targets for air bombardment must be legitimate, identifiable military objectives; and (3) reasonable care must be taken in attacking military objectives to avoid bombardment of a civilian population in the neighbourhood.12 Thus, on the eve of the Second World War, there appeared to be generalised support for prohibiting indiscriminate bombing, though what that meant in practice was not entirely clear. Behind an apparent commitment from the Allied and Axis powers to limit themselves to the strategic bombing of military targets lay a continued belief in the efficiency of targeting civilian morale. This translated into an acceptance of inordinately high numbers of civilian casualties, and an interpretation of the notion of military objective that fluctuated according to each Party’s interest at any given time. “Their ideas often differed considerably, depending on 8 1923 Hague Rules art. 24(2). 9 1923 Hague Rules art. 24(3). 10 For a critical analysis of the 1923 Hague Rules, see W. Hays Parks, “Air War and the Law of War” (1990) 32 Air Force Law Review 1 at 30-36. 11 L. Oppenheim, International Law: A Treatise, Vol. II, 7th ed., London, Longmans, Green and Co., 1952 at 519, cited in H.B. Robertson Jr., “The Principle of the Military Objective in the Law of Armed Conflict” in M.N. Schmitt, ed., The Law of Military Operations – Liber Amicorum Professor Jack Grunawalt, vol. 72, Newport, Rhode Island, U.S. Naval War College International Law Studies, 1998, 197 at 199. 12 Roberts & Guelff, supra note 3 at 140.

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whether the territory concerned was their own, enemy territory, or territory of an ally occupied by enemy forces.”13 Bombing powers argued that aerial attacks of inhabited areas were legitimate because they were not aimed at terrorising the civilian population or because, in spite of considerable ‘collateral damage’, they had successfully hit what they determined to be legitimate military targets. It was also common to stretch the concept of ‘reprisal’ to justify attacks that were clearly indiscriminate due to the disproportionate number of civilian casualties involved, but nonetheless deemed to be a legitimate response to the enemy’s violation of the laws of war.14 By the end of the war, a new consensus had to emerge: too many civilian casualties demanded focused effort on achieving clearer rules for future armed conflicts. Chief among the notions that required clarification was the definition of what constituted a legitimate military objective. The 1923 attempt to distinguish civilian objects from military objectives failed to be further clarified in the 1949 Geneva Conventions, which were negotiated and drafted after the Second World War. Despite the obvious need to update and clarify the rules governing warfare, the question of nuclear weapons created a massive political obstacle to dealing with the rules regulating the conduct of hostilities at the 1949 Diplomatic Conference. The United States and its allies were determined not to allow a ban on nuclear weapons. As a result, the Conference “had to abandon its attempt to deal seriously with the rules on the conduct of hostilities, in particular air raids, as it was difficult to see how this could be done without broaching the issue of nuclear weapons.”15 Despite this setback, the 1949 Conventions were elaborated around the principle of distinction between combatants and military objectives, on the one hand, and civilians and civilian objects, on the other. ‘Military objectives’ were explicitly referred to in two provisions: Article 19 of the First Convention, which requires that the

13 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 Martinus Nijhoff Publishers, 1987 [hereinafter ICRC Commentary API] at para. 2000. 14 F. Kalshoven & L. Zegveld, Constraints on the Waging of War, 3rd ed., Geneva, International Committee of the Red Cross, 2001 at 46. Reprisals against protected persons and objects are now prohibited by all four Geneva Conventions as well as by the First Additional Protocol: Article 46 of Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949 [hereinafter GCI]; Article 47 of Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949 [hereinafter GCII]; Article 13(3) of Convention (III) Relative to the Treatment of Prisoners of War, 12 August 1949 [hereinafter GCIII]; Article 33 of Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, [hereinafter GCIV]; API arts 20, 51-56. The United States has expressly rejected the reprisals provision in the First Additional Protocol (C. Greenwood, “Customary Law Status of the 1977 Geneva Protocols” in A.J.M. Delissen & G.J. Tanja, eds., Humanitarian Law of Armed Conflict, Challenges Ahead, Dordrecht, Martinus Nijhoff Publishers, 1991, 93 at 111). However, as a matter of policy only the President may authorize a reprisal action by U.S. forces: Department of the Navy, Annotated Supplement to the Commander’s Handbook on the Law of Naval Operations, Newport, Rhode Island, U.S. Naval War College, 1997, Chapter 6: Adherence and Enforcement at 6.2.3.3. [hereinafter Annotated Supplement], available online: Naval War College <http://www.nwc.navy.mil/ild/commander's%20handbook.htm>. In 1998, the United Kingdom issued a reservation to the reprisals provisions contained in Articles 51 to 55 of the First Additional Protocol, stating that it regards itself as entitled to take measures otherwise prohibited by the Articles in question in response to an adverse Party’s violation of the provisions (text available in the ICRC International Humanitarian Law (IHL) Database, available online: <http://www.icrc.org/ihl.nsf/WebPAYS?OpenView>). 15 Y. Sandoz, “Role of the ICRC in the Evolution and Development of International Humanitarian Law” in J. Hasse, E. Müller & P. Schneider, eds., Humanitäres Völkerrecht, Nomos Verlagsgesellschaft, Baden-Baden, 2001, 110 at 115-116, with further reference to G. Best, War and Law Since 1945, Clarendon Press, Oxford, 1994, at 99 ff.

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responsible authorities ensure that medical establishments and units are, as far as possible, situated in such a manner that attacks against military objectives cannot imperil their safety; and Article 18 of the Fourth Convention, which contains a similar provision for the benefit of civilian hospitals.16 In 1954, the list of legitimate military objectives was partially developed by the drafters of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.17 In this Convention, special protection is granted to certain cultural property provided it is “situated at an adequate distance from any large industrial centre or from any important military objective constituting a vulnerable point”18. Examples of such ‘vulnerable points’ include an aerodrome, a broadcasting station, an establishment engaged upon work of national defence, a port or railway station of relative importance or a main line of communication.19 While this reference to ‘military objective’ in an international treaty instrument is worth citing, its importance is rather limited because of the absence of criteria for determining what makes an object a legitimate target. In other words, the Convention recognises that certain objects are military objectives and provides examples of such objects, but it does not indicate what it is about these objects that makes them legitimate targets nor does it indicate how other objects might become ‘vulnerable points’ or ‘military objectives’. It was the International Committee of the Red Cross (ICRC), in 1956, which finally moved things forward significantly. In a bid to clarify the principle of distinction and fill what it perceived to be a serious gap in the laws of armed conflict, the ICRC produced a document entitled “Draft Rules for the Limitation of Danger Incurred by the Civilian Population in Time of War”20 and, in so doing, it proposed the following definition of ‘military objective’ at Article 7:

In order to limit the dangers incurred by the civilian population, attacks may only be directed against military objectives. Only objectives belonging to the categories of objective which, in view of their essential characteristics, are generally acknowledged to be of military importance, may be considered as

16 ICRC Commentary API, supra note 13 at para. 1999, with reference to GCI art. 19(2)(d) and GCIV art. 18(5). 17 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, 14 May 1954 [hereinafter 1954 Hague Cultural Property Convention], reprinted in Roberts & Guelff, supra note 3 at 371. 18 1954 Hague Cultural Property Convention art. 8(1)(a) [emphasis added]. 19 Ibid. 20 International Committee of the Red Cross 1956, available online in the ICRC IHL Database: <http://www.icrc.org/ihl.nsf/WebFULL?OpenView> [hereinafter ICRC Draft Rules]. “In many ways these Draft Rules were a continuation of the efforts that the ICRC had begun since 1920 to persuade States to adopt treaty rules to protect civilian populations from the effects of bombardment, taking into account the rapid development of new methods and means of warfare. The Board of Governors in 1954 asked the ICRC to propose a text to the following International Conference of the Red Cross particularly with a view to ‘protect civilian populations efficiently from the dangers of atomic, chemical and bacteriological warfare’. The ICRC drew up the Draft Rules with the help of experts and submitted the text to the XIXth Conference of the Red Cross which took place in New Delhi in 1957. Resolution XIII of this Conference encouraged the ICRC to submit to governments the text together with the amendments proposed during the Conference. As there was virtually no reaction by governments, no further action could be taken at the time. It is particularly noteworthy that many of the provisions in these Draft Rules resemble provisions finally adopted in the 1977 Protocols additional to the Geneva Conventions” (text introducing the Draft Rules, available online in the ICRC IHL Database: <http://www.icrc.org/ihl.nsf/WebPRES?OpenView>).

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military objectives. […] However, even if they belong to one of those categories, they cannot be considered as a military objective where their total or partial destruction, in the circumstances ruling at the time, offers no military advantage.21

Governments failed to follow up on the ICRC Draft Rules mostly because of the reference to nuclear weapons and the political debate that surrounded their legality.22 In 1965, at the XXth International Conference of the Red Cross, the ICRC proposed the reaffirmation of certain basic principles, notably the principle of distinction at all times between persons taking part in hostilities and members of the civilian population. Shortly thereafter, in the context of a debate concerning the conduct of hostilities in the Vietnam War and the issue of “human rights in occupied territories”, the United Nations General Assembly took up the issue of

21 List of Categories of Military Objectives according to Article 7(2) of the ICRC Draft Rules, reprinted in ICRC Commentary API, supra note 13 at para. 2002 note 3:

“[…] (1) Armed forces, including auxiliary or complementary organisations, and persons who, though not belonging to the above-mentioned formations, nevertheless take part in the fighting.

(2) Positions, installations or constructions occupied by the forces indicated in sub-paragraph 1 above, as well as combat objectives (that is to say, those objectives which are directly contested in battle between land or sea forces including airborne forces).

(3) Installations, constructions and other works of a military nature, such as barracks, fortifications, War Ministries (e.g. Ministries of Army, Navy, Air Force, National Defence, Supply) and other organs for the direction and administration of military operations.

(4) Stores of arms or military supplies, such as munitions dumps, stores of equipment or fuel, vehicles parks.

(5) Airfields, rocket launching ramps and naval base installations.

(6) Those of the lines and means of communication (railway lines, roads, bridges, tunnels and canals) which are of fundamental military importance.

(7) The installations of broadcasting and television stations; telephone and telegraph exchanges of fundamental military importance.

(8) Industries of fundamental importance for the conduct of the war:

(a) industries for the manufacture of armaments such as weapons, munitions, rockets, armoured vehicles, military aircraft, fighting ships, including the manufacture of accessories and all other war material.

(b) industries for the manufacture of supplies and material of a military character, such as transport and communications material, equipment for the armed forces;

(c) factories or plant constituting other production and manufacturing centres of fundamental importance for the conduct of war, such as the metallurgical, engineering and chemical industries, whose nature or purpose is essentially military;

(d) storage and transport installations whose basic function it is to serve the industries referred to in (a)-(c);

(e) installations providing energy mainly for national defence, e.g. coal, other fuels, or atomic energy, and plants producing gas or electricity mainly for military consumption.

(9) Installations constituting experimental, research centres for experiments on and the development of weapons and war material. […]” 22 Chapter IV of the ICRC Draft Rules circumscribes the use of “weapons with uncontrollable effects” (supra note 20).

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human rights in armed conflict and adopted a series of resolutions along the same lines as had been adopted by the Red Cross Conference in 1965.23 Though the General Assembly resolutions did not articulate the notion of ‘military objective’, growing international support for the principle of distinction accentuated the need for a workable definition. In 1969, the Institute of International Law produced a resolution entitled “The Distinction between Military Objectives and Non-Military Objectives in General and Particularly the Problems Associated with Weapons of Mass Destruction”, in which it included the following definition of military objectives:

[…] only those objects which, by their very nature or purpose or use, make an effective contribution to military action, or exhibit a generally recognized military significance, such that their total or partial destruction in the actual circumstances gives a substantial, specific and immediate military advantage to those who are in a position to destroy them [emphasis added]. 24

The final step in the process of codifying the notion of ‘military objective’ was taken by the international community during the three year Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (CDDH), which took place in Geneva between 1974 and 1977, and which led to the adoption of the 1977 Additional Protocols to the Geneva Conventions of 12 August 1949.25 The CDDH produced a definition of military objectives at Article 52(2) of the First Additional Protocol:

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.

The provision integrates elements of The Hague Air Rules definition – the importance of establishing a military advantage – and elements of the definition put forward by the Institute of International Law – the criteria of nature, purpose and use. However, the expected military 23 The most significant resolution adopted during this period was Resolution 2675 (XXV), 9 December 1970, entitled “Basic Principles for the Protection of Civilian Populations in Armed Conflicts”, in which the General Assembly affirmed certain basic principles including the principle of distinction between combatants and civilians and the principle of non-combatant immunity. 24 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 [hereinafter Edinburgh Resolution]. The United States Department of Defense opposed the proposal of the Institute on the basis that the requirement of an “immediate” military advantage for an object to be classified as a military objective did not reflect the practice of States (H.B. Robertson Jr., supra note 11 at 218 note 25). 25 The Additional Protocols are credited for bringing together what was formerly understood as being two subsets of the laws of armed conflict: the so-called ‘Hague law’, which dealt with means and methods of warfare, and the ‘Geneva law’, which focused on the protection of victims of war. This development was confirmed by the International Court of Justice in the context of its 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons: “These two branches of the law applicable in armed conflict have become so closely interrelated that they are considered to have gradually formed one single complex system, known today as international humanitarian law. The provisions of the Protocols Additional of 1977 give expression to the unity and complexity of that law” [1996] ICJ Reports 226 at 256 para. 75 [hereinafter Nuclear Weapons Advisory Opinion].

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advantage is characterised as ‘definite’, which sets a higher threshold than ‘distinct’, the term employed by the 1923 proposal, yet less stringent than ‘substantial, specific and immediate’, which were the adjectives chosen by the Institute of International Law in 1969. The definition adopted in the First Additional Protocol introduces two entirely new elements. The first is the criterion of ‘location’ for establishing that an object makes an effective contribution to the enemy’s military action; the second is the addition of the concepts of ‘capture’ and ‘neutralization’.26 Prior definitions of the military objective required that a military advantage be gained from “the destruction or injury” of the object27 or “the partial or total destruction” of the object28. Article 52(2) widened the category of actions to include those that fall short of destruction but that deny the use of an object by the enemy.29 One of the underlying assumptions of the negotiations that led to the adoption of the First Additional Protocol was the customary nature of the principle of distinction.30 This fact lends heightened importance to the codification of the rules on targeting, generally, and to the definition of military objectives, more specifically. The relevant provisions were drafted with the aim of creating a coherent normative edifice that would ensure that the principle of distinction could be translated into an operational reality. According to authoritative sources, the 1977 definition of military objectives also reflects customary international law.31 As one author recently remarked, customary law is not typically understood as including definitions; rather, it is composed of rules that are elevated to the status of custom through a combination 26 ICRC Commentary API, supra note 13 at para. 2019. 27 1923 Hague Rules art. 24(1). 28 ICRC Draft Rules, supra note 20, art. 7; and Edinburgh Resolution, supra note 24, art. 2. 29 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, Martinus Nijhoff Publishers, 1982, 318 at 325 para. 2.4.5. [hereinafter Bothe et al.]. The author gives the example of an area of land that makes an effective contribution to the military action of the enemy. A military advantage can be gained by mining the area and therefore denying its use to the enemy. In this example, the use of landmines is circumscribed by the obligation on the part of the attacker to minimise their indiscriminate effects, to record their placement, and, at the end of hostilities, to render them harmless to civilians, or facilitate their removal. See Rules 81-83 on Landmines in J.-M. Henckaerts & L. Doswald-Beck, Customary International Humanitarian Law, Volume I: Rules, International Committee of the Red Cross, Cambridge, Cambridge University Press, 2005, 280-286 [hereinafter Customary IHL, Vol. I]. 30 M. Bothe, “Targeting” in A.E. Wall, ed., Legal and ethical lessons of NATO’s Kosovo campaign, vol. 78, Newport, Rhode Island, U.S. Naval War College International Law Studies, 2002, 173 at 175. In support of this conclusion, the author refers to the declarations made by the United States and the United Kingdom on the occasion of the signature of the First Additional Protocol whereby the two States deny that the “new rules” of the Protocol apply to so-called non-conventional weapons, the implication being that the “old rules” – customary law – do apply. Among these old rules is the principle of distinction (ibid. at 175-176). 31 See Rule 8, Customary IHL, Vol. I, supra note 29 at 29-32, which, inter alia, relies on the practice of States not, or not at the time, party to the First Additional Protocol. See also, T. Meron, Human Rights and Humanitarian Norms as Customary Law, Oxford, Clarendon Press, 1989 at 64-65; Robertson, supra note 11 at 204. The Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia [hereinafter ICTY Review Committee] states that the definition is part of customary law (Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, 13 June 2000, reprinted in A.E. Wall, ibid., 484 at 504 para. 42 [hereinafter ICTY Final Report], also available online: United Nations <http://www.un.org/icty/pressreal/nato061300.htm>. For a well-developed and substantiated argumentation supporting the customary nature of the criteria found in Article 52(2), see M. Sassòli, “Targeting: Scope and Utility of the Concept of ‘Military Objectives’ for the Protection of Civilians in Contemporary Armed Conflicts” in D. Wippman & M. Evangelista, eds, New Wars, New Laws?, Ardsley, New York, Transnational Publishers, 2005, at 187.

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of state practice and opinio juris.32 However, when one refers to the customary nature of Article 52(2), what is meant is that the rule that only military objectives can be attacked and the criteria for establishing what is a legitimate target are binding on all States regardless of whether or not they are contracting Parties to the 1977 Protocol. This is significant when one considers that “some States frequently involved in armed conflicts, including the U.S., Israel, Iran and Iraq are not among the 161 State Parties to [the First Additional Protocol].”33 Despite the principle’s customary nature, Article 52(2) continues to be one of the most heavily debated provisions of the First Additional Protocol.34 It has been criticized, among other things, for being “abstract and generic”35, not very constructive36 and “so sweeping that it can cover practically anything”37. The flip side of such criticism is that the definition offers the possibility of a “flexible and future-oriented interpretation”38, which, while it heightens the importance of good faith implementation, may prove to be increasingly necessary as warfare moves beyond the traditional battlefield. In what follows, the limits of the definition of military objective are explored through a presentation of some of the divergent interpretations and criticisms the notion has attracted. First, however, it is necessary to lay down what has come to be referred to as the two-pronged test of the military objective. II. Two-pronged test Article 52(2) sets out two cumulative conditions for an object to constitute a military objective: (A) that it make an effective contribution to the military action of the enemy by virtue of its nature, location, purpose or use, and (B) that its capture, destruction or neutralization provide the attacking party with a definite military advantage. While agreeing that the two-pronged test is cumulative, some authors argue that in practice, 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.39 The logic of this approach, however, endangers collapsing the two-

32 Sassòli, “Targeting: Scope and Utility of the Concept of ‘Military Objectives’ for the Protection of Civilians in Contemporary Armed Conflicts”, ibid. 33 Ibid. 34 S. Oeter, “Methods and Means of Combat” in D. Fleck, ed., The Handbook of Humanitarian Law in Armed Conflicts, Oxford, Oxford University Press, 1995 at para. 442.5. The Commentary to the First Additional Protocol explains some of the moral difficulties that arose in attempting to codify what would constitute a valid object of attack: “[S]hould a humanitarian treaty describe objects which may be attacked? After a great deal of thought it seemed impossible to ensure effective protection for the civilian population without indicating what objectives could legitimately be attacked.” (ICRC Commentary API, supra note 13 at para. 2015). See also Robertson, supra note 11 at 208: “Since this approach was a departure from the traditional practice of writing prohibitory rules specifying which objects were to be spared, it met considerable opposition at the outset of the negotiations in the CDDH.” 35 Y. Dinstein., The Conduct of Hostilities under the Law of International Armed Conflict, Cambridge, Cambridge University Press, 2004 at 83. 36 E. Rosenblad, “Area Bombing and International Law” (1976) 25:1-2 The Military Law and Law of War Review 53 at 90. 37 A. Cassese, International Law, Oxford, Oxford University Press, 2001 at 339. 38 O. Bring, “International Humanitarian Law after Kosovo: Is lex lata Sufficient?” (2002) 71 Nordic Journal of International Law 39 at 42. 39 “[O]ne 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

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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. Moreover, if it is presumed that the target did make an effective contribution to the defending Party’s military action, then demonstrating whether that was by virtue of its nature, location, purpose or use becomes simply a theoretical matter. The way in which the target satisfies the condition of effective contribution will be easy to show one way or another (and at that point indeed, who cares for the explanation for why it qualified since the underlying concern is that it did?). This logic reduces the two-prong test to one that strongly favours the attacking Party. Furthermore, debate over the questions of nature, location, purpose or use makes little sense unless such a presumption is not applied. 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 neutralisation affords a definite military advantage to an attacking Party. To take an example, if a factory is being used by the enemy to store ammunition and to fire upon the attacking Party’s forces, that is both evidence that its (in this case) use is making an effective military contribution to the enemy, as well as that its destruction, capture or neutralisation offers a definite military advantage to the attacking Party. If, however, the factory is empty of significant military presence but securing it or its location would give the attacking Party a definite advantage (e.g., because of its location on a hill overlooking the enemy’s barracks), the second prong may be satisfied but the attacking Party is still under an obligation to establish that the factory contributes to the enemy’s military action. Preserving the distinction between the two prongs of the test, even if it may often be slight, is important to the workers that may be inside the factory. Their status as civilians is more likely to be lost or at least weakened if the attacking Party concludes that the building is a legitimate military objective. The integrity of the principle of distinction rests upon, first, an examination of the object’s contribution to the military action of the defending Party and, second, the relation of its destruction, capture or neutralisation to the definite military advantage of the attacking Party. Of course, factors relevant to the second prong may also be relevant to the first prong, but nevertheless a proper analysis under the first prong is necessary. Weakening the first prong (as would be the result of the approach suggested) would result in more otherwise normally civilian objects migrating into the category of military objectives. This migration would legitimise the objects as targets, leaving only the principle of proportionality and the obligation to take all feasible precautions to protect civilians and the objects themselves. The underlying purpose of the First Additional Protocol is to protect people and objects that are not involved in military action – to focus the action on those that are militarily engaged. In doing so, it also builds on another fundamental paradigm of the laws of armed conflict, which

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).

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is the prevention of unnecessary destruction. This is an important aspect of the definition of the military objective even though it may at first blush appear absent from the wording of Article 52(2), which is primarily focused on identifying what can be attacked. Article 23(g) of the 1907 Hague Regulations Respecting the Laws and Customs of War on Land prohibits the destruction and seizure of the enemy’s property unless such destruction or seizure is imperatively demanded by the necessities of war.40 The drafters of the First Additional Protocol may have chosen a more positive formulation when they drafted Article 52(2) but the principle of restricting destruction to what is militarily necessary is part and parcel of the two-pronged test. This idea is aptly summarised by one author when he writes:

Le principe de l’immunité des biens de caractère civil peut donc aller au-delà de son objet spécifique qui est la protection des seuls biens civils: il implique l’illicéité de toute destruction inutile, même si celle-ci porte sur des biens qui ne sont pas civils stricto sensu.41

In the 1990-1991 Persian Gulf War, Coalition forces refrained from attacking Iraqi fighter aircraft that had been positioned next to the ancient temple of Ur partly out of respect for the cultural property that was unlawfully being used to shield the aircraft and partly (and arguably, mostly) because an attack was not deemed necessary. There was no runway near the planes so their contribution to the Iraqi army’s military action was not effective. As a result, the aircraft did not satisfy the first prong of the test set out in Article 52(2). The United States Department of Defense did not go so far as to recognise that the aircraft were not legitimate targets of attack but it did allude to a lack of military necessity:

Central Command (CINCCENT) elected not to attack the aircraft on the basis of respect for cultural property and the belief that positioning of the aircraft adjacent to Ur (without servicing equipment or a runway nearby) effectively had placed each out of action, thereby limiting the value of their destruction by Coalition air forces when weighed against the risk of damage to the temple.42

Even though the above statement emphasises the limited value of the target rather than its legitimacy, it remains a useful illustration of the principle of military necessity and how this principle feeds into any interpretation of what constitutes a legitimate military objective. Ultimately, the responsible commander has to be able to articulate how the attack was intended to contribute to the military operation and if the path of destruction was chosen – as opposed to that of capture or neutralisation – why it was deemed necessary over less damaging alternatives. By paying due heed to the two prongs of Article 52(2), the commander will be in a better position to justify any resulting collateral damage (to persons and property)

40 Regulations, Annex to the Convention (IV) Respecting the Laws and Customs of War on Land of 18 October 1907 [hereinafter Hague Regulations], reprinted in Roberts & Guelff, supra note 3 at 73. The prohibition is deemed to be a norm of customary international law applicable in both international and non-international armed conflict (Rule 50, Customary IHL, Vol. I, supra note 29 at 175) and its violation is codified as a serious violation of the laws and customs applicable in international armed conflict under Article 8(2)(b)(xiii) of the Rome Statute. 41 E. David, Principes de droit des conflits armés, 3rd ed., Bruxelles, Bruyland, 2002, at 270 para. 2.36. 42 United States Department of Defense, Report to Congress on the Conduct of the Persian Gulf War (1992) 31:3 International Law Materials 612 at 623.

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as legitimate in light of the precautionary measures taken and the proper application of the principle of proportionality.43 A. Effective contribution to military action The first part of the test established in Article 52(2) is itself divided into two components: that the objective make an effective contribution to military action; and that this contribution be linked to the nature, location, purpose or use of the objective in question. It has been written that the “requirement of effective contribution relates to military action in general, and [that there need not be a] ‘direct connection’ with specific combat operations.”44 Of greater concern is that the targeted object be connected to the military action of the enemy. Without this criterion, it becomes easy to justify that civilians and civilian objects that politically, financially or psychologically support the war machine should fall into the category of military objectives. Currently, the United States is the only State that openly challenges the requirement that the effective contribution of a target be connected to the other side’s military action. This position will be further analysed below in an attempt to circumscribe the extent of the challenge it poses.45 For now, suffice it to say that the generally accepted view is that “to qualify as a military objective, there must exist a proximate nexus to military action (or ‘war-fighting’).”46 The criteria of nature, location, purpose or use can be distinguished as follows: nature refers to the intrinsic character of the object;47 location refers to the possibility for an object to become a military objective if it is situated in an area that has been identified as a legitimate target;48 purpose refers to the belligerent’s intended future use of an object; 49 and use refers to its current function. According to Article 52(2), the object must ‘make’ an effective contribution to military action. The use of the present tense, instead of the conditional “would make” or “could make”, circumscribes the extent to which a belligerent can rely on the purpose of an object in deciding whether or not it is a military objective: “an intended future use may be

43 Precautionary measures and proportionality are explored below in Part Two – Limiting Collateral Damage 44 Dinstein, supra note 35 at 87, quoting and agreeing with W.A. Solf, “Article 52” in Bothe et al., supra note 29 at 324 para. 2.4.3. 45 See below, Section III. C. War-sustaining capability. 46 Dinstein, supra note 35 at 87. 47 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.” (ICRC Commentary API, supra note 13 at para. 2020). For a recent attempt at creating a non-exhaustive enumeration of objects that constitute military objectives by nature, see Dinstein, ibid. at 88-89. 48 Professor Yoram Dinstein believes that the real issue introduced by the word location is that “a specific land area can be regarded per se as a military objective”(ibid. at 150). A.P.V. Rogers explains that “[d]enying land to enemy forces is often a principal consideration in military operations” and that “[i]f an area of land has military significance for whatever reason, it becomes a military objective” (Law on the Battlefield, Manchester, Manchester University Press, 1996 at 39, with further references). In a decision rendered in 2000, the International Criminal Tribunal for the former-Yugoslavia [hereinafter ICTY] accepted that a piece of land could be a military objective: “The Grbavica hill had a certain strategic importance, which enabled the AbiH, if it occupied it, to block the HVO and the Croatian civilians’ access to the main Travnik-Busovača road” (ICTY, Prosecutor v. Tihomir Blaskic, IT-95-14-T, Judgement of 3 March 2000 at para. 551 [hereinafter Blaskic]). 49 ICRC Commentary API, supra note 13 at para. 2020.

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sufficient, but not a possible future use.”50 The inherent difficulty with the idea of ‘intended use’ is that it is predicated on knowledge of the defending party’s intention or mens rea. This introduces the need for a standard of proof for determining when and how an intention is established. The only standard of proof available is that of reasonable belief in the circumstances ruling at the time. But because so much turns on the reliability of available intelligence, caution is necessary.51 Doubt as to the status of an object is expressly dealt with in paragraph 3 of Article 52:

In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a 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.

The inclusion of this rebuttable presumption gave rise to considerable discussion during the negotiation of the First Additional Protocol.52 Some delegations argued that its inclusion did not accurately reflect the reality of the battlefield where civilian buildings situated on the front line were inevitably part of the defensive works and should be presumed to be military objectives. Despite this criticism and a proposal to create an exception for objects located in the contact zone,53 the ensuing vote favoured a presumption of civilian use in case of doubt. Today, Article 52(3) continues to be the subject of controversy with combat often taking place in urban environments where there is much commingling of civilian and military objects and, therefore, where it is particularly difficult for an attacker to establish with any degree of certainty the military character of a target. This reality can be exploited by the defender – one can imagine a defending Party constantly changing the purpose of buildings or relocating communication centres and key ministries – in order to prevent the enemy from carrying out an attack. If in so behaving this Party fails to separate the civilian population or civilian objects from military objectives, it may be in breach of its obligations to take precautions against the effects of attack.54 However, even where this is the case, such a violation does not change the

50 Sassòli, “Targeting: Scope and Utility of the Concept of ‘Military Objectives’ for the Protection of Civilians in Contemporary Armed Conflicts”, supra note 31 at 199. See also David, supra note 41 at 271 para. 2.38. 51 In the chapter of his book that deals with military objectives, A.P.V. Rogers raises the difficulty posed by the “purpose” criterion in Article 52(2). In doing so, the author gives the example of a military commander who receives intelligence that the enemy is about to use a school as a munitions depot. In such a case, he posits that the school would not be a legitimate military objective until the munitions were in the building. The problem with Rogers’ example is that it assumes that the only other option open to the commander is to strike the school. In fact, if the commander’s belief is reasonable, there is nothing to prevent his troops from positioning themselves in such a way as to avoid the school being used as intended. In this case, a preventive attack could be legitimate and less damaging than waiting until the enemy had rendered the school and its surroundings vulnerable to the effects of a full out attack. See Rogers, Law on the Battlefield, supra note 48 at 36. 52 See discussion in ICRC Commentary API, supra note 13 at paras 2031-2038. 53 “The area where the most forward elements of the armed forces of both sides are in contact with each other” (definition taken from ICRC Commentary API, ibid. at para. 2268 note 2). 54 Article 58 of the First Additional Protocol sets out the obligations of the defending Party against the effects of attacks: “The Parties to the conflict shall, to the maximum extent feasible: (a) […] endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives; (b) avoid locating military objectives within or near densely populated areas; (c) take the other necessary precautions to protect the civilian population, individual civilians and civilian objects under their control against the dangers resulting from military operations.” The extent to which the protection of the civilian

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attacking Party’s obligation to do everything feasible to verify that the intended target is being used for a military purpose, an obligation that is widely recognised as being customary.55 And if verification does not yield a sufficiently clear picture of the object’s character, the presumption of civilian use should prevail. States that possess superior intelligence capabilities, such as the United States and Israel, believe that the rule of doubt imposes an unfair burden on the attacker since even after thorough verification, doubt may still subsist. As a result, both these States – neither of which are parties to the First Additional Protocol – have disputed the customary nature of Article 52(3).56 In 1992, the United States Department of Defense submitted a report to Congress on the Conduct of the Persian Gulf War. Reacting to claims that its attack against the Al-Firdus Bunker in Baghdad was in breach of the rule of doubt, the United States argued that such a rule was contrary to the traditional law of war because it shifts the burden of determining the precise use of an object from the defender to the attacker: “This imbalance ignores the realities of war in demanding a degree of certainty of an attacker that seldom exists in combat. It also encourages a defender to ignore its obligation to separate the civilian population, individual civilians and civilian objects from military objectives.”57 Israel, for its part, interprets the presumption of civilian status as only applying “when the field commander considers that there is a ‘significant’ doubt and not if there is merely a slight possibility of being mistaken”58. Both these lines of argument appear to suggest that the drafters of the First Additional Protocol intended Article 52(3) to require certainty on the part of the attacker. Yet, this is not so. What the law requires is a “reasonable belief” that the target is a military objective, a standard of proof that was recently confirmed by the ICTY in the Galić case when it stated that:

[…] an object shall not be attacked when it is not reasonable to believe, in the circumstances of the person contemplating the attack, including the information available to the latter, that the object is being used to make an effective contribution to military action.59

This interpretation allows a decision maker to have an honest but mistaken belief as to the identity of the military objective without having to argue, as the United States do, that it is the

population is a shared responsibility between the attacker and the defender is one of the important reasons for the United States’ failure to ratify the First Additional Protocol. For a defence of the American position, see Hays Parks, “Air War and the Law of War”, supra note 10 at 28-29 and 112-202. 55 API art. 57(2)(a)(i). This rule is further discussed below in Part Two, Section II. Precautionary Measures. For evidence of the customary nature of this rule, see Rule 16, Customary IHL, Vol. I, supra note 29 at 55. 56 In its recent study on customary law, the ICRC stops short of identifying the rule of doubt as customary in nature. Instead, it states: “[…] it is clear that, in case of doubt, a careful assessment has to be made under the conditions and restraints governing a particular situation as to whether there are sufficient indications to warrant an attack. It cannot automatically be assumed that any object that appears dubious may be subject to lawful attack.” (ibid. at 36). 57 Report to Congress on the Conduct of the Persian Gulf War, supra note 42 at 627. For a critical view, see David, supra note 41 at 274-275 para. 2.40. 58 Customary IHL, Vol. I, supra note 29 at 36. 59 ICTY, Prosecutor v. Galić, IT-98-29-T, Judgment of 5 December 2003 at para. 51.

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defending Party that has the burden of clarifying the character of objects under its control, or to introduce, as Israel does, new adjectives such as ‘significant’ and ‘slight’ in one’s interpretation of the rule. B. Definite military advantage The second component of the test provided for in Article 52(2) establishes that even an object that makes an effective contribution to military action may nevertheless fail to qualify as a military objective if, in the circumstances, its “destruction, capture or neutralization” would not offer a definite military advantage. One could argue that this second requirement is a priori satisfied in the case of objects that are military objectives by virtue of their nature. In other words, a piece of artillery, to take an obvious example, would always constitute a legitimate military objective because there is a presumption that its destruction, capture or neutralization offers the attacking Party a definite military advantage. To argue otherwise appears counterintuitive to the extent that the law is concerned with limiting damage to civilians and civilian objects. Imposing an additional burden of proof on the attacking Party where a target is clearly part of the enemy’s arsenal diminishes the importance of this burden in cases where the status of the target is debatable. A definite military advantage has been defined as “concrete and perceptible” rather than “hypothetical and speculative”.60 This wording is similar to what is found in the provisions codifying the principle of proportionality, where the military advantage anticipated from an attack is weighed against the likelihood of civilian losses and damage.61 The proportionality formulation refers to collateral damage that “would be excessive in relation to the concrete and direct military advantage anticipated”.62 This latter wording appears to introduce an additional element of specificity. There is no indication in the documents of the CDDH as to why different expressions were chosen.63 It can nonetheless be posited that at the stage of target selection, it is sufficient for an attacking Party to determine that the object is capable of yielding a definite military advantage; whereas in the context of assessing proportionality, the military advantage anticipated must be established with more certainty and is also then qualified in relation to potential collateral damage. But either way (‘definite’ or ‘concrete and direct’), the standard remains high and removed from something that is hypothetical. In practical terms, it requires the responsible commander to be able to clearly articulate the nature of the military advantage expected from the attack and to produce evidence supporting this expectation. Turning back to the second prong of the Article 52(2) test, one of the questions that arises in attempting to define what constitutes a ‘definite military advantage’ is whether it must accrue from a single attack. In other words, must an attacking Party demonstrate that destroying, capturing or neutralizing the targeted object will provide it with a definite military advantage or is it sufficient for it to show that attacking the object will contribute to obtaining a definite military advantage? The First Additional Protocol relies on a fairly specific concept of ‘attack’

60 Solf, “Article 52” in Bothe et al., supra note 29 at 326 para. 2.4.6. 61 For a discussion of the principle of proportionality, see below, Part Two, Section IV. 62 API art. 51(5)(b) and API art. 57(2)(a)(iii) [emphasis added]. 63 ICRC Commentary API, supra note 13 at para. 2027.

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at Article 49(1), defining it as “an isolated ground operation by a specific unit.”64 If the advantage has to result from the specific military operation that constitutes the ‘attack’, this suggests a rather narrow understanding of ‘definite military advantage’. As one author puts it, “[s]uch a construction […] would ignore the problems resulting from modern strategies of warfare, which are invariably based on an integrated series of separate actions forming one ultimate compound operation.”65 During the CDDH negotiations, several States indicated that they will consider the military advantage to be anticipated from an attack as a whole and not from parts thereof.66 Although the interpretation was intended to clarify the legal standard in the provisions dealing with the rule on proportionality, it is logical to conclude that it also applies to the wording in Article 52(2).67 But this interpretation is not unanimously agreed upon and remains a point of controversy. The danger in adhering to the view that the term ‘attack’ can encompass a series of actions is that it will become so broad as to dilute the concept of definite military advantage and the obligations deriving from this concept. In order for the requirement that an attack provide a definite military object retain any meaning at all, it must correspond to a concrete situation on the ground. How does this interpretation translate in practice? By way of example, consider the strategy of a Party that consists in destroying the enemy’s communication network. In order to carry out this strategy, one of the operations the Party devises involves attacking a series of switching centres. The advantage expected from the destruction of each centre may not be definite in and of itself because the operation will only succeed if all centres are hit. Assuming that they satisfy the first part of the two-prong test (the switching centres make an effective contribution to the enemy’s military action), the individual communication facilities can safely be included in the target list even though the anticipated military advantage will only materialise once the entire operation is completed.68 By the same token, if the military advantage is defined at the strategic level, as deriving from the disabling of the enemy’s entire communication network, the operation against the switching centres being one in a series of operations, it is no longer possible to justify targeting the individual facilities on the basis that they provide the attacker with a definite military advantage.

64 Oeter, supra note 34 at para. 444. According to API art. 49(1), “‘Attacks’ means acts of violence against the adversary, whether in offence or in defence.” 65 Ibid. 66 On ratifying the First Additional Protocol, Canada stated that: “the military advantage anticipated from an attack is intended to refer to the advantage anticipated from the attack considered as a whole and not from isolated or particular parts of the attack.” Similar statements were made by Australia, Belgium, France, Germany, Italy, the Netherlands, New Zealand, Nigeria, Spain and the United Kingdom. For the text of declarations and reservations made by signatory States, see ICRC IHL Database, available online: <http://www.icrc.org/ihl.nsf/WebPAYS?OpenView>. There is no official explanation given by any of the States concerned as to the meaning of ‘attack as a whole’ (K. Dörmann, Elements of War Crimes Under the Rome Statute of the International Criminal Court, Sources and Commentary, Cambridge, Cambridge University Press, 2003, 171). 67 Oeter, supra note 34 at para. 444. 68 In the recent U.S.-led war against Iraq, separate attacks were carried out against Baghdad’s main telephone exchanges – over a period of three days – in an alleged bid to cut Saddam Hussein “off from communicating with his political subordinates and military commanders” (J.F. Burns, “Iraqis Threatening New Suicide Strikes Against U.S. Forces”, The New York Times, 30 March 2003, accessed on Lexis-Nexis).

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This type of reasoning, when taken to its logical conclusion, would allow belligerents to include on their target list whatever objects are deemed to contribute to the ultimate aim of ending the war.69 Moreover, it would potentially justify collateral damage in violation of the proportionality requirement since casualties could be measured against an unduly broad assessment of what constitutes the military advantage.70 Needless to say that such arguments would also frustrate the purpose of Article 52(2) and, ultimately, the principle of distinction. Hence the importance of teaching and applying the principles of proportionality and distinction at all decision-making levels involved in planning and carrying out an attack. Any civilian object can become a legitimate military target. This is by virtue of the criteria of location, purpose or use, together with the tactical and strategic goals that evolve throughout the duration of an armed conflict. The status of an object is therefore dynamic. This means that a target list must constantly be updated in order to accurately reflect changes in the legitimacy of military objectives. Recent conflicts raise the question of the extent to which belligerents consider the two-prong test of effective contribution to military action and definite military advantage in drawing up their target list. Civilian objects are making their way into the category of military objectives with little in the way of justification. This could be a function of advances in technology enabling precision attacks and limiting the risk of collateral injury. Because certain States possess the means to carry out surgical attacks, they may feel warranted in paying less attention to the requirement that what they are targeting be established as a legitimate military objective, in the first place. It may also be a consequence of new targeting theories that give pre-eminence to attacks that produce the most effective outcome and seek to enlarge the category of military objectives to include targets that have financial, psychological and political effects. Whatever the reason, the result is a potential for widening the category of objects that can be targeted and therefore, an increased level of risk to civilians and civilian property. In order to address this trend while at the same time exploring avenues for adapting the legal regime to new battlefield realities, some contentious targets that have so far only been alluded to deserve attention. These illustrate the penumbra of doubt in the definition of military objectives – the current state of debate about the edge of Article 52(2). III. Contentious targets A. Dual-use targets ‘Dual-use’ is an adjective that is not found in the law governing the conduct of hostilities but that has been coined by the military in order to refer to objects that serve both civilian and military purposes. The expression is somewhat misleading because of the word ‘use’, which could be interpreted as restricting the category to objects that are actually used by civilians and the armed forces. In reality, the label is primarily applied to essential civilian infrastructure such as electricity-generating installations and oil-refining facilities, which produce energy that is used by civilians and combatants alike. It is rather more the purpose of the facility that is dual than its use. Nevertheless, there are other examples of ‘dual-use’ facilities such as telecommunication and computer networks, or transportation networks that can in fact be 69 F.J. Hampson, “Means and Methods of Warfare in the Conflict in the Gulf” in P. Rowe, ed., The Gulf War 1990-91 in International and English Law, Routledge, London, 1993, 89 at 94 70 For a discussion of the proportionality principle, see below Part Two, Section IV.

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used by the military as well as the civilian population in times of war. The key question is whether this dual nature alters the applicability of Article 52(2). The crux of the issue lies in the inevitability of affecting the civilian population because the two purposes the objects serve are inseparable. When a power-generating station which is crucial for civilian access to clean water is also providing power to the war industry, it can become a legitimate military objective. The practical reality, however, is that it is difficult to evaluate (a) the extent to which a particular facility makes an ‘effective contribution to military action’ since it is simultaneously being used by the civilian population; (b) whether its destruction, capture or neutralization will provide a ‘definite military advantage’; and (c) the impact of the destruction or impairment of a facility on civilian lives.71 On a case-by-case basis, the damage caused may be indirect and unforeseeable but the cumulative effect of such attacks is likely to have long-term negative consequences that are foreseeable. Despite these difficulties, ‘dual-use’ facilities are not recognised as a separate category of military objectives and, as such, they are subject to the rule of Article 52(2) regardless of how challenging it may be to establish the effective contribution they make to military action. Once the object in question has passed the test in Article 52(2), which it often will, the rules limiting collateral damage represent the only means of ensuring that attacks against dual-use targets respect the principle of distinction. Indeed, where it may be most useful to develop specific rules for dealing with such objects is in the realm of precautionary measures.72 Moreover, because of the likelihood of extensive long-term damage to the civilian population as a result of an attack, it may be necessary to revisit the application of the proportionality rule in order to take into account the reverberating effects of attacks on those objects that serve the military while simultaneously playing a vital role for the civilian population.73 B. Notional targets In defining military objectives, Article 52(2) refers to material and tangible things.74 It has been suggested that the inclusion of the words “so far as objects are concerned” in the provision excludes combatant personnel.75 While this interpretation is not false since combatants do fall outside the scope of Article 52(2) – their status being dealt with elsewhere in the First Additional Protocol76 – it may nonetheless be misleading to the extent that it 71 P. Rowe, “Kosovo 1999: The air campaign – Have the provisions of Additional Protocol I withstood the test?” (2000) 82:837 International Review of the Red Cross 147 at 151. The author warns of the danger of thinking that “merely because the military may make use of an object (and they are unlikely to do so unless it is necessary) that object becomes a military objective and, as such, a legitimate target. Were this argument to be taken to its logical conclusion, every civilian object that could possibly be used by the military would become a military objective” (ibid. at 151-152). 72 See below, Part Two, Section II. Precautionary measures. 73 For an attempt at adapting the principle of proportionality to the special case of targeting dual-use facilities, see H. Shue & D. Wippman, “Limiting Attacks on Dual Use Facilities Performing Indispensable Civilian Functions” (2002) 35 Cornell International Law Journal 559. 74 ICRC Commentary API, supra note 13 at paras 2007-2008. 75 H. DeSaussure, “Civilian Immunity and the Principle of Distinction” (1982) 31:4 American University Law Review 883 at 885. 76 API art. 43 defines armed forces and provides that members of such forces are combatants. As combatants, “they have the right to participate directly in hostilities; the corollary is that they may be the object of hostile acts” (ICRC Commentary API, supra note 13 at para. 2017).

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suggests that members of the armed forces are not military objectives. Yet, as one author puts it, combatants are at “the heart of the category of military objectives”.77 In support of its statement that members of the armed forces are military objectives, the ICRC Commentary quotes the 1868 Preamble of the Declaration of St. Petersburg:

the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy; [...] for this purpose it is sufficient to disable the greatest possible number of men.78

Having clarified this point, the question that arises is how to deal with strategies that target immaterial objectives such as civilian morale and the political will to wage war. It is well documented that the use of the word ‘object’ in Article 52(2) was motivated by a desire to exclude immaterial objectives such as victory, which is achieved, not attacked.79 However, in recent conflicts it is common to find belligerents justifying attacks against civilian objects, such as radio and television installations, government ministries and electrical generating stations, with arguments that emphasize the advantage gained from striking at elements that will break civilian support for the war effort. Because it is somewhat of a legal fiction to treat such immaterial goals as military objectives, this study has coined the term ‘notional targets’ to refer to attacks against doubtful military objects for the purpose of bringing the war home to the civilian population.

i. Effects-based targeting and centres of gravity One must question the continued relevance of the 1868 formulation to the extent that disabling the greatest possible number of men may no longer constitute the most effective way of weakening the military forces of the enemy.80 According to sophisticated targeting theories that have recently been developed and applied by the U.S. and its allies, military objectives are selected and prioritised according to their contribution to the overall objective of the war. During Operation Allied Force in Kosovo, NATO command developed the notion of ‘effects-based targeting’: directing attacks against specific links, nodes, or objects in order to cause an effect or a combination of effects that will achieve the desired objective.81 If the ultimate goal is to topple a regime or obtain compliance from the leadership for a specific line of action, then target selection will be geared toward achieving this goal in the most cost-effective manner and the strategic importance of military forces may be diminished. With the 77 Oeter, supra note 34 at para. 443.2. 78 ICRC Commentary API, supra note 13 at para. 2017, quoting the Declaration Renouncing the Use, in Time of War, of Certain Explosive Projectiles under 400 Grammes Weight, 29 November – 11 December 1868, at para. 2 of the Preamble, reprinted in Roberts & Guelff, supra note 3 at 53 [hereinafter St. Petersburg Declaration]. 79 Sassòli, “Targeting: Scope and Utility of the Concept of ‘Military Objectives’ for the Protection of Civilians in Contemporary Armed Conflicts”, supra note 31 at 185. “It is the basic idea of International Humanitarian Law that political objectives may be achieved by a belligerent with military force only by directing the latter against material military objectives” (Sassòli & Bouvier, supra note 39 at 161 note 139). 80 The St. Petersburg Declaration needs to be read in context, as a statement in favour of limiting the infliction of superfluous injury. The principle that harm not justified by military necessity is illicit relates to the legality of weapons or means of attack. However, in the target selection process, the criteria for determining what objects can be legitimately attacked already includes a consideration of military necessity – ‘effective contribution to military action’ and ‘definite military advantage’ – and it is therefore not appropriate to reintroduce the notion by asking whether or not an attack is justified by military necessity. 81 T. Montgomery, “Legal Perspective from the EUCOM Targeting Cell” in A.E. Wall, supra note 26, 189 at 190.

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help of revolutionary advances in precision, stealth, and information technology those who have access to such resources can bypass some of the more traditional military objectives, such as fielded forces, in order to concentrate on those targets deemed to be the most likely to create the desired effects. A related American theory holds that the enemy regime has 'five strategic rings'.82 The State is envisioned as a series of concentric rings: in the innermost ring is the leadership, followed in turn by organic essentials such as electric and petroleum facilities, critical infrastructure, the population and fielded military forces.83 According to this theory, when attacking the command centre is not feasible, the enemy can be neutralized by destroying one or more of the outer strategic rings or ‘centres of gravity’, which are what the enemy values most. It is troubling to find that the fourth ring designates the civilian population. Yet, defenders of the ‘five strategic rings’ theory argue that it can be applied within the confines of the laws of war, explaining that the population can be ‘targeted’ without being directly attacked.84 What is advanced is the notion of psychological warfare involving benign tactics that cannot be termed attacks – such as leaflet drops, food drops and media broadcasts – but also entailing the use of force against objects for the purpose of undermining civilian morale and the enemy’s political will.85 Here, what is being referred to is not the incidental impact of, for example, high levels of combatant casualties on the enemy’s will to wage war or on the population’s willingness to support the war effort.86 Rather, the issue is attacks that are supposedly justified under the

82 This influential theory was developed by retired U.S. Air Force Col. John A. Warden, III. The author summarizes the key concepts involved in the approach he champions in the following terms: “First, the object of war is to induce the enemy to do your bidding. Second, it is the leadership of the enemy that decides to accommodate you. Third, engagement of the enemy military may be a means to an end, but the engagement is never an end in itself and should be avoided under most circumstances. Fourth, every life-form-based system is organized similarly: a leadership function to direct it, a system-essential function to convert energy from one form to another, an infrastructure to tie it all together, a population to make it function, and a defense system to protect it from attack. Fifth, the enemy is a system, not an independent mass of tanks, aircraft, or dope pushers. And sixth, the five rings provide a good method for categorizing information and identifying centers of gravity” (“Air Theory for the Twenty-First Century” in B.R. Schneider & L.E. Grinter, eds., Battlefield of the Future: 21st Century Issues, Maxwell Air Force Base, Alabama, Air University Press, 1997, available online: Air & Space Power Chronicles <http://www.airpower.maxwell.af.mil/airchronicles/battle/chp4.html>) 83 K.R. Rizer, “Bombing Dual-Use Targets: Legal, Ethical, and Doctrinal Perspectives” (2001) Air & Space Power Chronicles, only available online: Air & Space Power Chronicles <http://www.airpower.maxwell.af.mil/airchronicles/cc/Rizer.html> 84 It is not clear from Col. Warden’s explanation of this point what he means when he advocates “an indirect approach to the population” (“The Enemy as a System” (Spring 1995) 9:1 Air Power Journal 40 at 51). A theory that would support direct attacks against the civilian population would be untenable. One author offers the following interpretation: Warden envisages attacks against dual-use targets, which allow the U.S. Air Force to undermine civilian morale while legitimately targeting military capabilities (Rizer, ibid.). However, this hypothesis fails to factor in the criteria of ‘definite military advantage’, which remains the benchmark for assessing the legality of a target regardless of whether or not it has a dual-use character. 85 W.J. Fenrick, “Targeting and Proportionality during the NATO Bombing Campaign against Yugoslavia” (2001) 12 European Journal of International Law 489 at 491. 86 “While morale of an enemy nation inevitably may be affected as a by-product of lawful attacks on military objectives, there is no historical support for the effectiveness of attacks directed exclusively at civilian morale, and it is a practice rightly put to an end by Additional Protocol I” (W. Hays Parks, “The Protection of Civilians from Air Warfare” (1997) 27 Israel Yearbook on Human Rights 65 at 84, with further references).

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language of Article 52(2). A closer look reveals that the military advantage expected in this school of thought stems primarily from the fact that the target is “symbolic and psychologically lucrative”.87 This trend is dangerous because it opens the door to arguments justifying the targeting of objects benefiting from special protection, such as cultural property of recognised value, on the basis that their destruction would yield the greatest impact on the morale of the enemy. Admittedly, a line exists between the tangible object that is attacked and the intangible objective that is pursued but it appears to be increasingly blurred. Where the notional objective or goal becomes more important than the concrete military advantage in justifying the attack, there is reason to question the choice of target.

ii. Recent practice Most commentators agree that targeting political will or civilian morale is not legitimate if what it entails is an attack against civilian lives or civilian objects.88 However, recent practice indicates a willingness to extend the scope of targeting to include objects with a doubtful military status on the basis that attacking such objects will get to the enemy’s soul and lead him to back down.89 During the 1990-1991 Gulf War, it is reported that one of the justifications given by the Coalition planners for degrading power supplies was “to paralyse the leadership, cause political turmoil and lead to the demise of Saddam Hussein.”90 Attacks against the empty Baath Party headquarters were justified in terms of destroying Saddam Hussein’s legitimacy as a Head of State.91 In 1999, during Operation Allied Force, it is alleged that NATO specifically targeted objects with the intention of undermining Serbian support for

87 The phrase “symbolic and psychologically lucrative” was allegedly used by U.S. military sources interviewed by Human Rights Watch during their investigation into civilian casualties having occurred as a result of the 1999 NATO intervention in Kosovo. According to the organisation’s final report: “bridges were often selected for attack for reasons other than their role in transportation (for example, they were conduits for communications cables, or because they were symbolic and psychologically lucrative, such as in the case of the bridge over the Danube in Novi Sad)” (Human Rights Watch, Civilian Deaths in the NATO Campaign, 2000, available online: Human Rights Watch <http://www.hrw.org/reports/2000/nato/>). 88 For a view favourable to extending the list of permissible targets to civilian objects that affect the citizens, such as banks, financial institutions, and factories and stores that produce and sell luxury products, see C.J. Dunlap, Jr., “The End of Innocence: Rethinking Noncombatancy in the Post-Kosovo Era” (2000) 28 Strategic Review 9 at 11-16. 89 In this context, some authors have felt it appropriate to revive the ancient and questionable argument that the shorter the war, the more humanitarian the outcome: “If the destruction of certain civilian property contributes to the demoralization of the population, thereby leading to pressure to end the conflict, this result is more humane than protecting these items at the price of prolonging a bloody conflict.” (J.M. Meyer, “Tearing Down the Façade: A Critical Look at the Current Law on Targeting the Will of the Enemy and Air Force Doctrine” (2001) 51 Air Force Law Review 143 at 179, citing Dunlap, ibid. at 13-14 and 16). 90 Cdr. J.W. Crawford, III, “The Law of Noncombatant Immunity and the Targeting of National Electric Power Systems” (1997) 21 Fletcher Forum of World Affairs 101 at 108-109. 91 In an interview with the Washington Post, Lt. General Charles Horner, U.S. air commander during the 1990-1991 Persian Gulf conflict, explained the rationale for bombing the Baath Party headquarters: “we looked at Saddam Hussein and the Baath Party as one. We wanted to show weakness in the Baath Party and thus weakness in Saddam Hussein. We wanted to embarrass him in front of his people as well as limit the loss of life” (“Fog of War: Q&A with Lt. Gen. Charles Horner”, The Washington Post, washingtonpost.com, July 1998, available online: <http://www.washingtonpost.com/wp-srv/inatl/longterm/fogofwar/hornertext.htm>, quoted in C.J. Dunlap Jr., “Law and Military Interventions: Preserving Humanitarian Values in 21st Century Conflicts”, The Carr Center for Human Rights Policy, Understanding Collateral Damage, Workshop, June 4-5, 2002, Washington D.C. at 20-21, available online: Kennedy School of Government, Harvard University <http://www.ksg.harvard.edu/cchrp/UseofForcePapers.shtml>).

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Milosevic’s regime. In a radio interview on September 15, 1999, the Joint Forces Air Component Commander made the following comments, confirming such allegations:

There can be no doubt in your mind that with the power down as the result of a hard kill and refrigerator not running and no water in your house and the public transportation system in Belgrade not running and no street lights, that the war was brought home, not just to the ruling elite, but to the average Serb on the street.92

In both the 1990-1991 and the 2003 wars in Iraq, as well as in the Kosovo air campaign, the United States and NATO target lists included media installations, because of the role these played in supporting the enemy regime.93 Though arguments were put forward that attempted to tie the actual objects to their contribution to the other camp’s military action, there is evidence that the underlying justification was a desire to attack the adversary’s political will. In defending this approach to targeting, reference was made to the ultimate objective of the war which, in the case of Kosovo, was Milosevic’s ultimate compliance with the demands of NATO, and in the case of Iraq, was the withdrawal of Iraqi troops from Kuwait in 1990-1991 and the toppling of Saddam Hussein’s regime in 2003. This amounts to a dangerous confusion of jus ad bellum and jus in bello, where the laws of war are being stretched in light of what one side perceives as a justified resort to force.94 From a humanitarian perspective, such confusion is viewed with suspicion: regardless of the legitimacy of the use of force, the

92 Lt. General Michael C. Short in an interview with Steve Inskeep, Morning Edition, National Public Radio, 15 September 1999, audio version available online: NPR <http://www.npr.org/rundowns/rundown.php?prgId=3&prgDate=15-Sep-1999>, quoted by Meyer, supra note ? at 176 note 191. 93 In the 1990-1991 Gulf War, attacking Iraqi radio and TV was meant to rupture Saddam Hussein’s link to the people and military; “[i]n all, 36 broadcast transmitters were attacked” (W.M. Arkin, “Changing the Channel in Belgrade”, The Washington Post, Special to washingtonpost.com, 24 May 1999, available online: <http://www.washingtonpost.com/wp-srv/national/dotmil/arkin052499.htm>); during Operation Allied Force, a NATO spokesperson stated: “Serb radio and TV is an instrument of propaganda and repression. It has filled the airwaves with hate and with lies over the years, and especially now. It is therefore a legitimate target in this campaign. If President Milosevic would provide equal time for Western news broadcasts in its programs without censorship, three hours a day between noon and 1800 and three hours a day between 1800 and midnight, then his TV could become an acceptable instrument of public information.” (Air Commodore David Wilby, quoted from an interview with Noah Adams, All Things Considered, National Public Radio, 12 April 1999, available online: NPR <http://www.media-diversity.org/articles_publications/Serbian%20Propaganda%20A%20Closer%20Look.htm>); in the 2003 intervention in Iraq, the U.S. dropped bombs and missiles on the state-run television station with the aim of disabling the television signal and “ending its use as a propaganda tool” (Associated Press, “Iraq Says U.S. Missiles Kill 14 in Baghdad”, The New York Times, 26 March 2003). 94 During Operation Allied Force in Kosovo, one of NATO’s strategic objectives was to “[d]amage Serbia’s capacity to wage war against Kosovo in the future or spread the war to neighbors by diminishing or degrading its ability to wage military operations” (W.S. Cohen & General H.H. Shelton, Joint Statement on Kosovo After Action Review, News Release, Office of Assistant Secretary of Defense (Public Affairs), Washington D.C., 14 October 1999, available online: Air University <http://www.au.af.mil/au/awc/awcgate/kosovoaa/jointstmt.htm>). Reflecting on this stated goal, W.J. Fenrick writes: “Measured against this broad strategic objective, one might be inclined to regard virtually all of the objects deliberately targeted, with the possible exception of media targets not integrated into the C3 network, as objects which by their nature or use make an effective contribution to military action and whose destruction offers a definite military objective” (“The Law Applicable to Targeting and Proportionality After Operation Allied Force: A View from the Outside”, supra note 4 at 72).

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result is a strong potential for victims of war on all sides. Under the laws of international armed conflict, all victims are deserving of the same protection and this is no less the case because some lend their political support to a regime that is responsible for serious human rights violations or to a regime that is dictatorial. It may be a fact that limiting attacks to military objectives obliges belligerents to adopt hypocritical justifications for their choice of targets95 but this is not a compelling argument for accepting the targeting of notional objectives such as political will and civilian morale while effectively abandoning the key notion of distinction. The hypocrisy can be challenged by insisting on limiting the list of legitimate military objectives – at least those objects that are not military by nature – to those that pass the two-prong test of effectively contributing to the other side’s military action and providing a definite military advantage when attacked. Only then is it possible to draw the line between targets that concretely benefit military action – while incidentally affecting civilian morale or political will – and those that do not qualify because their contribution to the enemy’ war-fighting capacity is too remote. Failing to do so and allowing the law to be moulded to what some argue is a new battlefield reality in defiance of the rule that only military objects can be targeted, amounts to reneging the quintessential principle of distinction. Morale and political will have been and will continue to be an underlying force driving successful military strategy, and thus they may indeed be important to military action. Countering them will also continue to be a key part of war which is the continuation of the political process “by other means”. But the concern here is the rule of law and how wars are actually fought. Allowing the targeting of civilian morale and political will by disregarding the obligation to shield civilians from attack is all too tempting today in a media-rich world where public opinion and opinion polls can drive the political process. The danger with legitimising this line of thought is clearly illustrated by the question some might raise as to whether an American television network could have been a legitimate target of attack during the most recent war against Iraq. Above and beyond the legal challenges posed, it is arguable that the targeting of objects that predominantly benefit civilians will only serve to increase popular support for the enemy regime rather than cause demoralization.96 Moreover, from a strictly strategic point of view, choosing targets on the basis of their direct or indirect effects on the leadership assumes that the attacking Party understands what motivates the enemy and, more importantly, that the enemy is a rational actor. C. War-sustaining capability Before turning to the rules limiting collateral damage, it is necessary to consider one of the main points of divergence in the interpretation of the definition of military objectives. The United States argues that Article 52(2) of the First Additional Protocol pays too little heed to war-sustaining capability, including economic targets such as export industries.97 Hence, the

95 Meyer, supra note 89 at 170: “Commanders are increasingly forced into word games or mental gymnastics in order to justify target choices within the restrictive definition of Article 52(2).” 96 Sassòli, “Targeting: Scope and Utility of the Concept of ‘Military Objectives’ for the Protection of Civilians in Contemporary Armed Conflicts”, supra note 31 at 195. 97 This criticism is extensively substantiated by W. Hays Parks, the Special Assistant for Law of War Matters to the US Army Judge Advocate General, in “Air War and the Law of War”, supra note 10 at 139-46, especially 139 note 412.

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following formulation adopted by a recent United States military manual in defining military objectives:

Military objectives are combatants and those objects which, by their nature, location, purpose or use, effectively contribute to the enemy’s war-fighting or war-sustaining capability and whose total or partial destruction, capture, or neutralization would constitute a definite military advantage to the attacker under the circumstances at the time of the attack [emphasis added]. 98

By replacing the expression ‘military action’ by ‘war-fighting or war-sustaining capability’, the current American position is that “[e]conomic targets of the enemy that indirectly but effectively sustain the enemy’s war-fighting capability may also be attacked”99. The expression ‘war-fighting’ is not at variance with the words ‘military action’ in Article 52(2). However, ‘war-sustaining’ is a considerable departure from the definition given by the First Additional Protocol and has been rejected by many authors as too broad.100 Including ‘war-sustaining capability’ effectively means removing civilian protection where it can be determined that an object or person influences the possibility or the decision of the enemy to continue the war.101 In contemporary warfare, the commingling of civilian and military activities is a reality with which belligerents have to contend, especially given the increased use of information technology by States possessing advanced weaponry. As one author pointedly asks: “How is one to distinguish […] a computer chip manufacturer that sells its chips only to civilian end-users from one that has a number of military contacts?”102 While it is arguable that certain elements of the economy contribute directly to military action, it does not seem necessary to coin a new term for such targets. ‘Military action’ is broad enough to encompass certain economic activities without opening the door to attacks against “the main export industries, the stock market or [the] taxation authorities”103. As far as psychological targets are concerned – since they too can be argued to be ‘war sustaining’ –

98 Annotated Supplement, supra note 14 at Chapter 8: The Law of Targeting at 8.1.1. See also, U.S. Department of Defense, Military Commission Instruction No. 2, 30 April 2003 at para. 5(D), available online: Department of Defense <http://www.defenselink.mil/news/May2003/d20030430milcominstno2.pdf>. 99Annotated Supplement, ibid., Chapter 8: The Law of Targeting at 8.1.1 and note 11. 100 See Dinstein, supra note 35 at 145. H.B. Robertson Jr. notes that the American variation “was the object of considerable debate at the San Remo Round Table, which specifically rejected it in favour of the formulation in Article 52 of Protocol Additional I.” He goes on to quote Louise Doswald-Beck, who acted as rapporteur for the sessions of the Round Table: “ ‘war-sustaining’ could too easily be interpreted to justify unleashing the type of indiscriminate attacks that annihilated entire cities during [the Second World War]” (Robertson, supra note 11 at 212). 101 Sassòli, “Targeting: Scope and Utility of the Concept of ‘Military Objectives’ for the Protection of Civilians in Contemporary Armed Conflicts”, supra note 31 at 196. 102 M.N. Schmitt, “The Principle of Distinction in 21st Century Warfare”, 2 Yale Human Rights and Development Law Journal (1999) 143 at para. 39. In support of his contention that “military activities are increasingly civilianized”, the author cites the Former Vice-Chairman of the U.S. Joint Chiefs of Staff: “ […] Our ability to accelerate the fielding of systems, on which we will base our future military superiority, thus depends on our capacity to tap into developments taking place for the most part outside the existing Department of Defense laboratory and development infrastructure” (Ibid. at note 71, citing Adm. W.A. Owens, The Emerging System of Systems, U.S. Naval Institute Proceedings, May 1995). 103 Sassòli, “Targeting: Scope and Utility of the Concept of ‘Military Objectives’ for the Protection of Civilians in Contemporary Armed Conflicts”, supra note 31 at 196.

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the danger of taking too liberal an approach to the idea of undermining the opponent’s will to wage war or the civilians’ support for the war effort has already been outlined.104 Suffice it to say that there is no legal basis for characterizing civilian objects as contributing to the enemy’s ‘war-sustaining’ capability where the contribution is purely psychological. In somewhat more cautious language, the United States Department of Defense recognises this lack of legal basis when it states:

The extent to which force can be used for purely psychological operations purposes, such as shutting down a civilian radio station for the sole purpose of undermining the morale of the civilian population, is an issue that has yet to be addressed authoritatively by the international community.105

Despite the holistic approach adopted by the American formulation, an examination of recent practice indicates a tendency on the part of the United States and its allies to justify their target selection as closely connected to military action. In fact, it would be unfounded to argue that the definition is a veiled attempt to justify targeting civilians or civilian objects. Why, then, the need for a broader approach to target selection? Perhaps it offers a fall back position when the military status of an object is unclear or where the military advantage sought is only tangentially related to the destruction of the object, as in the case of dual-use targets or notional targets. What is clear is that in adhering to the notion of ‘war-sustaining’ capability, the United States has raised suspicion from those who fear that this saving clause will be invoked to avoid discussing solutions to the problems posed by future targeting choices.

104 See above, Section III. B. Notional Targets. 105 United States Department of Defense, Office of General Counsel, “An Assessment of International Legal Issues in Information Operations”, May 1999 at 9, available online: The Information Warfare Site <http://www.iwar.org.uk/law/resources/DOD-IO-legal.doc>. See also, Joint Doctrine for Targeting, a U.S. government publication providing doctrinal guidance for joint targeting across the range of military operations, which states: “attacking a national religious shrine in an attempt to demoralize an adversary’s populace and diminish their will to support continued hostilities is considered an illegal act under the LOAC [Laws of armed conflict]” (Joint Publication 3-60, 17 January 2002 at II-5, available online: Joint Electronic Library <http://www.dtic.mil/doctrine/jel/new_pubs/jp3_60.pdf>). In 1991, during the Persian Gulf War, the Joint Chiefs of Staff rejected a recommendation to topple a fifty-five-foot statue of Saddam Hussein. The rationale that was put forward by proponents of the attack was that the destruction of the statue would encourage the people of Iraq to rise up and turn their leader out of office. It was rejected as “highly speculative at best” (Hays Parks, “The Protection of Civilians from Air Warfare”, supra note 86 at 83-84 note 43).

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PART TWO – LIMITING COLLATERAL DAMAGE The legal regime applicable to targeting is only partly about target selection. It is also about limiting what is commonly referred to as collateral damage, otherwise understood as justified loss of civilian life and damage to civilian objects. Part One analysed the criteria for an object to be considered a legitimate military objective and therefore something that could in theory qualify as a legitimate target. Part Two examines the actual circumstances under which and the method by which a military objective can be targeted. Whereas the notion of military objective is central to the operation of the principle of distinction, the requirement that civilian casualties be avoided or kept to a minimum is derived from the principles of proportionality and minimum feasible damage. These three principles correspond to separate analytical steps in the targeting process: distinction determines whether an object is a military objective while proportionality and minimum feasible damage dictate the ‘when’, the ‘how’ and the ‘if’ the object can be attacked, given the circumstances ruling at the time. There is one exception to this two-step process, which is the use of means and methods of warfare that are considered as such incompatible with the principles of distinction and proportionality. These are known as ‘indiscriminate attacks’. Their prohibition is absolute, without it being necessary to examine the exigencies of the otherwise applicable principles. When an attack is indiscriminate, any ensuing casualties – whether loss of life or damage to civilian property – will not be justified as ‘collateral damage’. In all other cases, proportionality calculations, considerations of minimum feasible damage as well as the extent to which all other feasible precautionary measures have been implemented, determine the legitimacy of an attack. Determining whether or not a targeting choice respects the principle of proportionality is a challenging task that involves pitting the value of human life against the value of military gains. While some continue to discard the principle as vague and meaningless, it remains a key element of the targeting process and its interpretative difficulties deserve to be explored. Apart from anything else, the very commitment to the principle engages – or should engage – actors in a reflective process that involves accountability and justification, an important element in the overall aspirations of the laws of international armed conflict. Though the laws of war do not provide clear guidance on how to assess the proportionality of an attack (nor should they be expected to), they do set up a comprehensive regime of precautionary measures that are aimed at minimizing collateral damage. If greater attention were focused on monitoring respect for this precautionary regime, it might be possible to steer away from the more contentious question of what constitutes a legitimate military objective. This would foster consensus-building around the practical rules that circumscribe tactical decisions and encourage belligerents to prove their good faith evaluation of the information available at the time of planning and executing attacks. What follows is an analysis of the rules that seek to limit collateral damage through an application of the principles of minimum feasible damage (III) and proportionality (IV). These principles translate into specific rules prohibiting indiscriminate attacks (I) and rules requiring that belligerents take precautions in attack (II). I. Indiscriminate attacks The principle of distinction protects civilians and civilian objects by prohibiting not only direct and deliberate attacks but also by prohibiting indiscriminate targeting of military objectives. It is no excuse for an attacking Party to establish that it was not intending to harm the civilian

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population if it acted in wanton disregard of the principle of distinction. The rule that only military objectives shall be attacked implies that care must be taken in choosing means and methods of combat that are capable of translating the rule into an operational reality. Article 51(4) of the First Additional Protocol prohibits indiscriminate attacks, defining them as:

(a) those which are not directed at a specific military objective;106 (b) those which employ a method or means of combat which cannot be directed at a specific military objective;107 or (c) those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol;108 and consequently, in each such case, are of a nature to strike military objectives and civilian objects without distinction.

The Additional Protocol specifies two types of attacks that are to be considered indiscriminate. The first is “an attack by bombardment which treats 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.”109 Such an attack is considered to be per se incompatible with the principles of distinction and proportionality. The second is “an attack which 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.”110 What makes an attack indiscriminate is not the resulting number of casualties but the “state of mind” of the attacking Party.111 However, unless the means (e.g. biological weapons) or methods (e.g. loosely aimed missiles) used evidence a reckless state of mind, the legality of

106 Prohibited practices include firing blindly into territory controlled by the enemy or releasing bombs over enemy territory after missing the original target (Oeter, supra note 34 at para. 455.2.) 107 The drafters intended to prohibit the use of remotely controlled weapons with extremely low target accuracy, a prime example of which are the Scud missiles used by Iraq in its attacks against Israel in 1991, during the Persian Gulf War. Not only were the weapons imprecise, they were also pointed in the general direction of Tel Aviv, an urban area that hardly qualified as a military objective, therefore making the attacks also indiscriminate under paragraph (a) of Article 51(4). In terms of methods of combat that would fall under this prohibition, an example would be attacks carried out when visibility prevents accurate targeting (Oeter, ibid. at para. 455.3; Dinstein, supra note 35 at 118). 108 This paragraph addresses situations “where the attacker is unable to control the effects of the attack […] or where the incidental effects are excessive.” (Rogers, Law on the Battlefield, supra note 48 at 21). Such situations can be attributable to the objects attacked (e.g. works and installations containing dangerous forces), the means employed (e.g. undirected weapons with effects spreading over a wider area), or the methods employed (e.g. poisoning wells). As far as means of combat are concerned, many of the armaments with the potential of causing indiscriminate attacks are already prohibited by the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects of 10 October 1980 [hereinafter 1980 Weapons Convention] and its Protocols. It remains to be seen, however, the extent to which paragraph (c) can be invoked to prohibit the use of weapons not regulated by the 1980 Weapons Convention. 109 API art. 51(5)(a). At the time of adoption, this rule constituted an innovation since prior practice had not demonstrated a willingness to accept a prohibition of ‘target area’ bombings. There is reason to believe that such attacks are already covered by paragraph 4(a), prohibiting targeting that is not directed at a specific military objective (ICRC Commentary API, supra note 13 at para. 1973). 110 API art. 51(5)(b). 111 Dinstein, supra note 35 at 117.

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the attack will ultimately be assessed in light of the overarching principle of proportionality.112 It does not follow that a breach of the principle of proportionality can be equated with an indiscriminate attack nor does it follow that an attack which respects the principle of proportionality is necessarily discriminate.113 The use of a chemical or biological weapon with unknown effects may injure an entire population or no one at all, yet regardless of the actual effect on the civilian population, the use of this type of weapon is deemed indiscriminate.114 For the purpose of instructing military commanders on how to carry out an attack within the confines of the laws of war, it is not helpful, as a practical matter, to present indiscriminate attacks as a separate category of prohibited practices. What needs to be taught are the positive rules that enable an attacking Party to avoid perpetrating an indiscriminate attack. To a large degree, these are the rules on precautions with a specific focus on means and methods that present a high risk of causing excessive civilian casualties. They can be summarised as follows: § ensuring that military objectives are clearly identified and verified; § ensuring that attacks are effectively directed at each selected targets; and § ensuring that the means and methods selected have the capacity to respect the

principle of distinction. Once a commander has determined that a planned attack does not risk being indiscriminate in light of the above-mentioned considerations, he or she still needs to take a number of precautionary measures in order to ensure that the targeting process yields an outcome that is both proportionate and of minimal consequence to the civilian population. Indeed, before an attack is launched, those planning the military action may be overly optimistic about the military advantage expected and they may also have high expectations with respect to the precision ability of their weapons.115 As a result, even though they may not be at risk of perpetrating an indiscriminate attack – which is very much about what is expected – they may nonetheless be unnecessarily putting the lives of civilians at risk. Hence, the importance of establishing clear precautionary measures that apply throughout the targeting process.

112 The overarching character of the principle of proportionality is established by a combined reading of Articles 51(5)(b), 57(2)(a)-(b) and 85(3)(b) of the First Additional Protocol. 113 For a contrary view, see F. Krüger-Sprengel, “Le concept de proportionnalité dans le droit de la guerre” (1980) 19:1-2 The Military Law and Law of War Review 177 at 192. See also Rogers, Law on the Battlefield, supra note 48 at 21-23. Rogers queries the relevance of terming an attack indiscriminate if no civilians are killed as a result: “This is a curious provision because it takes no account of the actual consequences of an attack. On a strict construction, if the attack is indiscriminate by its nature it would seem to matter not whether any civilians are actually killed as a result. It is suggested that this would be an absurd and unintended result of the drafting. Certainly, to amount to a grave breach the indiscriminate attack must affect the civilian population” (ibid. at 21). According to the British Manual of the Law of Armed Conflict, “an attack can be indiscriminate even if no civilians are killed or injured by it, but a grave breach only occurs if the civilian population or civilian objects are knowingly and actually affected” (United Kingdom Ministry of Defence, The Manual of the Law of Armed Conflict, Oxford University Press, Oxford, 2004, at 69 para. 5.23.3). 114 The authors are grateful to Louise Doswald-Beck for clarifying this point. 115 Rowe, “Kosovo 1999: The air campaign – Have the provisions of Additional Protocol I withstood the test?”, supra note 60 at 160.

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II. Precautionary measures Prior to the adoption of the First Additional Protocol, “no express rules existed […] and the need to take precautions could only be inferred from customary law and treaty language, especially the principles of proportionality, identification of the target (or the rule of distinction), warning and the choice of methods and means.”116 The drafters of the 1923 Hague Air Rules had made a first attempt at codifying the obligation to take precautions, with a view to avoiding damage to protected objects,117 and in 1956, the ICRC included three articles on measures of protection in their Draft Rules.118 However, with the adoption of Article 57 of the First Additional Protocol, the international community set out, for the first time in a treaty, an exhaustive list of precautionary measures required from the attacking Party in order to carry out attacks within the confines of the laws of war. Underlying each precautionary measures codified at Article 57 is the joint precept of having to take constant care to spare the civilian population, civilians and civilian objects, and having to take all feasible precautions to avoid, and in any event to minimize, incidental loss of civilian life, injury to civilians and damage to civilian objects.119 While the obligation of due diligence applies to everyone involved in the targeting process – from the ministry of defence planning staff, through the commander in the field to the tank commander120 – the specific measures of precautions are aimed at ‘those who plan or decide upon an attack’. This “should be understood to address primarily commanders and staff officers who are directly responsible for specific operations, and only to a lesser degree the individual soldiers participating directly in the attack.”121 Clearly, the type of warfare and the size of the armed forces involved in the conflict will alter the level at which targeting decisions are taken. There may be cases where individual officers and soldiers are in a position to plan and carry out attacks, at which point they may be required to satisfy some of the obligations set out in Article 57. For instance, the duty to suspend or cancel an attack is not only the responsibility of the decision-makers and the planners; it is also the responsibility of the pilot who is unable to identify a target with enough precision.122 Ultimately, the obligations apply at whatever level the regulated functions are being performed.123

116 Rogers, Law on the Battlefield, supra note 48 at 56, with reference to an ICRC report presented to the Conference of Government Experts in 1971, entitled “Protection of the Civilian Population Against the Dangers of Hostilities”. 117 1923 Hague Rules art. 25. 118 ICRC Draft Rules arts 8-10, supra note 20. 119 API art. 57(1) and art. 57(2)(a)(ii). 120 Rogers, Law in the Battlefield, supra note 48 at 69. 121 Oeter, supra note 34 at para. 457.2. 122 During the 1990-1991 Persian Gulf War, “[a]ircrews attacking targets in populated areas were directed not to expend their munitions if they lacked positive identification of their targets. When this occurred, aircrews dropped their bombs on alternate targets or returned to base with their weapons” (Report to Congress on the Conduct of the Persian Gulf War, supra note 42 at 622) 123 At the time of signature, Switzerland made a declaration to the effect that the precautionary measures enumerated in Article 57(2) do not create obligations except for commanders of the level of battalion or group and higher echelons (W.A. Solf, “Article 57” in Bothe et al., supra note 29 at 363 para. 2.4.3. note 9). This illustrates the concern expressed by certain States that the provision lay too heavy a burden of responsibility on subordinate officers (ICRC Commentary API, supra note 13 at para. 2197).

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Under Article 57, the commander who is deciding an attack and the staff officer who is planning an attack must:

(1) do everything feasible to verify that the objectives to be attacked are military objectives;124 (2) take all feasible precautions in the choice of means and methods of warfare;125 (3) do everything feasible to assess whether the attack may be expected to cause excessive collateral damage;126 (4) do everything feasible to cancel or suspend an attack if it becomes apparent that the proportionality rule will be breached, or that the target is not a military objective or that it is subject to special protection;127 (5) give effective advance warning prior to an attack that is likely to affect the civilian population, unless the circumstances do not permit;128 and (6) where a choice between several military objectives is possible, chose the one that will cause the least danger to civilian lives and civilian objects.129

Each one of these rules includes a subjective element in recognition of the fact that the measures can only be assessed in light of the circumstances ruling at the time. Rules (1) through (4) refer to ‘feasibility’, Rule (5) allows for derogation where ‘circumstances do not permit’ and, finally, Rule (6) is only applicable ‘where possible’. At the time the First Additional Protocol was being negotiated, some commentators criticised the wording as leaving too much room for interpretation and therefore not meeting the requirement for specificity.130 This criticism was somewhat unfair to the extent that as an international treaty, the First Additional Protocol is not meant to be used as an operational guide.131 The necessary precisions should be set out in military manuals and discussed at the stage of incorporation into national law. Ideally, translating the international obligations at the national level is accomplished through a process of broad consultation in order to avoid the risk of interpretative abuse, justified on the basis of the law not being clear. But even where the process is undertaken seriously, it is not possible to anticipate every possible situation in the field. Hence, the importance of associating legal advisers with the drafting of rules of engagement and in the planning of military operations. 124 API art. 57(2)(a)(i). 125 API art. 57(2)(a)(ii). 126 API art. 57(2)(a)(iii). 127 API art. 57(2)(b). For a presentation of objects that benefit from special protection, see below, Part Three – Specifically Protected Objects. 128 API art. 57(2)(c). This rule was first codified in the Hague Conventions of 1907: Article 26 of the Hague Regulations requires that the commander of an attacking force do all in his power to warn the authorities before commencing a bombardment, except in cases of assault (Hague Regulations, supra note 3 at 73); and Article 6 of the Convention (IX) Concerning Bombardment by Naval Forces in Time of War requires – if the military situation permits – that the commander of an attacking naval force do his utmost to warn the coastal authorities before commencing a bombardment (18 October 1907, ibid. at 111). 129 API art. 57(3). 130 ICRC Commentary API, supra note 13 at para. 2187. 131 See comments made by H.P. Gasser in response to President Reagan’s message to the Senate explaining the views of the U.S. Government as to why the First Additional Protocol will not be submitted for senatorial advice and consent (“The U.S. Decision not to Ratify Protocol I to the Geneva Conventions on the Protection of War Victims: An Appeal for Ratification by the United States”, (1987) 81:4 American Journal of International Law 912 at 923-924)

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There are an infinite number of variables that can affect the conduct of military operations and the accuracy of bombardments. The location of the military objectives, the presence of civilians in the vicinity, the configuration of the surrounding terrain, the accuracy of the weapons used, the presence of anti-aircraft defence, the standard of technical training of combatants, their physical and psychological condition, the meteorological conditions132 – all of these are factors that need to be assessed by those who plan and decide attacks in order to maximize the efficiency of their action and minimize the risk of collateral damage. The flexibility of the provisions on the conduct of hostilities, especially those dealing with precautionary measures, reflects the complex reality of the battlefield and relies on good faith implementation by ‘reasonable military commanders’, for lack of a better standard.133 The obligation to take feasible precautions is generally understood as being limited to “those precautions that are practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations”.134 In its Final Report to the Prosecutor, the ICTY Review Committee substantiated the obligation to take feasible precautions in the following terms:

A military commander must set up an effective intelligence gathering system to collect and evaluate information concerning potential targets. The commander must also direct his forces to use available technical means to properly identify targets during operations. Both the commander and the aircrew actually engaged in operations must have some range of discretion to determine which available resources shall be used and how they shall be used.135

It is unquestionable that targeting decisions must be based on information and means that are available at the relevant time. Moreover, what is clear is that a commander who ignores available information is at fault. More difficult and controversial, however, are the following questions: what if the commander faces conflicting information? What if information is insufficient but time is lacking? What if the commander fails to use the most technologically-advanced means available? Feasibility is largely a factual question and the answer to most of these questions lies in a proper assessment of the circumstances ruling at the time. An examination of the principle of minimum feasible damage will provide additional insight into the standard to be applied. It will also be the occasion to reflect on one of the more

132 Solf, “Article 57” in Bothe et al., supra note 29 at 364 para. 2.6.1. 133 Oeter, supra note 34 at para. 457.4. 134 These are the exact terms used by Protocols II and III and Amended Protocol II to the1980 Weapons Convention (Article 3(4) of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol II) of 10 October 1980, reprinted in Roberts & Guelff, supra note 3 at 528; Article 1(5) of the Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III) of 10 October 1980, ibid. at 533; Article 3(10) of the Amended Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Amended Protocol II) of 3 May 1996, ibid. at 536). See also, Annotated Supplement, supra note 14, Chapter 8: The Law of Targeting at para. 8.1.2.1; Declaration of understanding of the United Kingdom upon signing the First Additional Protocol, see ICRC IHL Database, available online: <http://www.icrc.org/ihl.nsf/WebPAYS?OpenView>). 135 ICTY Final Report, supra note 31 at 498 para. 29.

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contentious questions raised, namely whether a State that possesses means of combat that enables it to engage in more precise targeting has an obligation to use this capability. III. Minimum feasible damage136 If a commander has a choice of means or methods that will yield the same military advantage and if all available options are expected to respect the proportionality rule, the principle of minimum feasible damage dictates that the means or methods chosen must be those that cause the least collateral damage. This principle, which is often confused with the principle of proportionality, needs to be considered separately. To be sure, the two principles are linked: proportionality cannot be evaluated in the abstract because what is deemed excessive is contingent upon the means and methods available to the attacking Party. If it can be established that a target could have been attacked causing less or no collateral damage, then it is not sufficient to argue that the loss of any life is proportionate to the military advantage gained. In reality, however, the incalculable factors that affect how an attack is carried out – most notably the behaviour of the defender – make it difficult to pinpoint at exactly which point the proportionality rule is breached. Hence, the need to enact safeguards that impose an additional layer of precautions to be respected by the attacking Party, requiring that all the means and methods at its disposal be carefully considered. Herein lies the relevance of the principle of minimum feasible damage. The principle is generally presented as a precautionary measure. It is indeed codified at Article 57(2)(a)(ii) of the First Additional Protocol, which states that those who plan or decide upon an attack must:

take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects.

Elevating this rule to the rank of principle serves to emphasize its relevance as a benchmark for ensuring the lawfulness of an attack. While a breach of this principle does not in and of itself amount to a war crime or a serious violation of the laws and customs applicable in international armed conflict, demonstrating regard for it may help to avert accusations of unlawful killings. The commander who can show that he or she considered the issue of minimizing collateral damage when choosing means and methods of attack will be in a far more favourable position before the law than the one who focuses exclusively on justifying the proportionality of the damage he or she caused – if only because the latter is extremely difficult to demonstrate in practice. In order to understand how the principle of minimum feasible damage operates in practice, consider the case of a command and control facility that is situated in the financial district of an urban area. Not only is the facility clearly a military objective but it turns out that it can be targeted by using an aircraft employing unguided bombs without causing a disproportionate level of civilian casualties, as compared with the military advantage anticipated from the destruction of the centre. The principle of minimum feasible damage intervenes at this point

136 During the meeting of experts convened in May 2005 around a previous version of this study, the authors’ decision to introduce what some saw as a new principle gave rise to some concern. The expression “Minimum feasible damage” appeared to convey the false idea that belligerents have a general obligation to minimize damage whereas the obligation referred to by the authors only relates to damage to civilians and civilian objects.

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to ask whether alternatives exist that would minimize or altogether avoid casualties. While there are undoubtedly a number of different ways in which to target the command and control facility, two possibilities stand out.137 The first concerns the means and methods of combat: if weapons or methods of warfare the use of which would diminish the expected incidental civilian damage are available, the attacking Party is in principle under an obligation to defer to such weapons or methods of warfare.138 In practice, this statement raises the difficult question of availability. Indeed, when can it be established that a less damaging alternative is in fact available? The second possibility concerns the timing of the attack: if night-time bombing is feasible, the attacking Party should take advantage of the lower number of civilians present in the financial district at night.139 Most commentators agree that when feasible, the timing of an attack should be adjusted to take into account the risk to civilian lives.140 As far as the use of precision weaponry is concerned,141 the question proves to be controversial. At one end of the spectrum, some authors argue that a customary norm is emerging to the effect that in urban warfare there is a duty to use precision-guided munitions.142 Under current international law, there is no explicit obligation for a State to use a

137 During the NATO intervention in Kosovo in 1999, the police station of the Yugoslav Ministry of Internal Affairs police forces [MUP] in Jackavitza was selected as a target. Two options were available for its destruction. The first involved an attack along an east-west axis with four-story civilian buildings on either side of the targeted station. The second involved a north-south access that allowed the use of five hundred pound bombs without any damage being inflicted upon the civilian buildings. NATO forces chose the second option. This example was given by Mike Newton, Lieutenant Colonel in the United States Army, during the discussion that followed presentations on the issue of collateral damage at the Naval War College in 2001, in the context of a colloquium entitled Legal and Ethical Lessons of NATO’s Kosovo Campaign (in A.E. Wall, supra note 30 at 298). 138 Addressing the specific issue of precision guided munitions, Michael Schmitt argues that “if guided munitions would lessen the expected loss and damage without increasing the risk to the aircrew or decreasing the expected damage to the target, and the guided munitions are readily available, then the attacking force should employ them” (“The Principle of Distinction in 21st Century Warfare”, supra note 102 at para. 20). 139 The ICRC Commentary cites the example of “precautionary measures taken by the Allied forces during bombardments carried out during the Second World War against factories located in territories occupied by German forces; in order to avoid hitting the people working in these factories, the attacks took place on days or at times when the factories were empty” (supra note 13 at para. 2200). 140 In his discussion of timing of attacks and minimizing collateral damage to civilians, Professor Yoram Dinstein analyses the incident of the bombing of the Belgrade Television and Radio Station by NATO forces on 23 April 1999, which killed 16 civilians and injured another 16. The author points to the early morning hour of the attack that minimized the risk of civilian casualties. He then goes on to criticise as incongruous comments made by some to the effect that ‘the loss of a few pre-dawn hours of broadcasting hardly seems to justify the loss of ten or more human lives’. (supra note 35 at 127). It may be more accurate to understand the point made by these commentators as being less about the timing of the attack and more about the status of the radio and television station as a military objective. If one considers that the installation did not satisfy the requirements set out in Article 52(2), then the question of timing becomes irrelevant. 141 The U.S. Department of Defense defines precision-guided munitions as “a weapon that uses a seeker to detect electromagnetic energy reflected from a target or reference point, and through processing, provides guidance commands to a control system that guides the weapon to target. Also called PGM.” (Department of Defense Dictionary of Military Terms, available online: Joint Electronic Library <http://www.dtic.mil/doctrine/jel/doddict/data/p/04123.html>). 142 See S.W. Belt, “Missiles Over Kosovo: Emergence, Lex Lata, of a Customary Norm Requiring the Use of Precision Munitions in Urban Areas” (2000) 47 Naval Law Review 115. The author argues that the language of Article 57 is too ambiguous to impose a duty to use precision-guided weapons and therefore turns to customary law for evidence that the duty exists. For a critical analysis of the arguments put forward by Belt, see J. F.

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particular type of weapon. Nevertheless, it is still possible to posit that a Party that possesses more technologically-advanced weaponry is placed at an advantage in terms of military capability and, therefore, has a corresponding responsibility to use its capability in a manner that reduces the risk of collateral damage. This argument is not about levelling the playing field or placing more developed States at a disadvantage: it is about recognising that what is ‘feasible’ is contingent upon a belligerent’s means. After all, the possession of sophisticated weaponry broadens the range of available targets since attacks can be launched in civilian areas with a greater probability of limited collateral damage.143 In the above example of the command and control facility, it was carefully specified that the obligation to use precise-guided munitions would depend on their availability and, therefore, on what is feasible. ‘Availability’ or ‘feasibility’ depends on a number of factors. The British Manual of the Law of Armed Conflict enumerates the following factors to be considered by a commander who is choosing what means and methods of attack to employ: a. the importance of the target and the urgency of the situation; b. intelligence about the proposed target – what it is being, or will be, used for and when; c. the characteristics of the target itself, for example, whether it houses dangerous forces; d. what weapons are available, their range, accuracy, and radius of effect; e. conditions affecting the accuracy of targeting, such as terrain, weather, and time of day; f. factors affecting incidental loss or damage, such as the proximity of civilians or civilian

objects in the vicinity of the target or other protected objects or zones and whether they are inhabited, or the possible release of hazardous substances as a result of the attack;

g. the risks to his own troops under the various options open to him.144 What if a State chose not to use precision-guided munitions on the sole ground that supplies are limited and should be reserved for future attacks? This would be an unfortunate argument to the extent that it factors in hypothetical considerations. On its face, the reasons given for not using the precision weaponry appear to frustrate the requirement that feasibility be assessed in light of the circumstances ruling at the time. However, it may be the case that the State in question is keeping its precision weapons for other identified targets or that it has a policy of stockpiling a minimum number of these weapons as a reserve. Hence, some may conclude that the weapons at issue are no longer ‘available’ and that the State cannot be faulted for refusing to use them.

Murphy, “Some Legal (And A Few Ethical) Dimensions of the Collateral Damage Resulting from Nato’s Kosovo Campaign” in A.E. Wall, supra note 30, 229 at 229-243. 143 In an article arguing against the existence of an obligation to use precision-guided munitions (PGMs), D.L. Gilmore lists the following important drawbacks associated with using such weapons: “[t]hey create a high workload for the crew, shorten the desirable stand-off range, and restrict the pilot’s freedom of action after weapon release. Even when PGMs are used against a military target, they may miss the target because of weather obstructing the pilot’s view, technological malfunction, or because the aircraft is dodging anti-air defenses” (“Precision Guided Weapons and the Law of War”, Royal Australian Air Force, Air Power Development Centre, Aerospace Centre Working Papers, 1995 (on file with the author)). See also the factors listed by W. Hays Parks as affecting bombing accuracy: target intelligence; planning time; aircrews; crew experience; force integrity and distance to target; mechanical problems; weather at target; and enemy defenses (“Air War and the Law of War”, supra note 10 at 184 ff.). 144 The Manual of the Law of Armed Conflict, supra note 113 at 83-84 para. 5.32.5.

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This interpretation addresses the concerns expressed by the United States which refuses to be bound to select the method or means of attack which cause the least danger to civilians for fear that it would not entitle it to take account of the risk to coalition aircrews or the likelihood of successfully destroying the target.145 The principle of minimum feasible damage as codified in Article 57, does not deny an attacking Party the right to refrain from resorting to ‘smarter’ weapons if it considers that this would diminish the military advantage anticipated from the attack. What it does require is a careful consideration of alternatives that, in the circumstances ruling at the time, would ensure a similar military advantage while avoiding or minimizing civilian losses. The rationale for choosing not to follow a less damaging alternative should ideally be recorded for the sake of ex post facto justification.146 IV. Proportionality A. Overview of the principle The requirement that hostilities be conducted in a way that does not cause disproportionate harm to the civilian population and civilian objects is derived from the precept that the only legitimate object of war is to weaken the military forces of the enemy.147 In the last century, the principle of proportionality has evolved as a result of a shift in the laws governing the conduct of hostilities. With the development of modern warfare throughout the twentieth century and the increasing prevalence of collateral damage, the principle of non-combatant immunity has been under renewed focus.148 This in turn has provoked the development of a theory of proportionality that specifically prohibits indiscriminate attacks and that determines “the extent to which civilians are entitled to be protected from the collateral effects of war”.149 The principle of proportionality in attack dictates that there must be an acceptable relation between the legitimate destructive effect and undesirable collateral effects of an attack.150 There is an ongoing debate as to whether or not the principle as expressed in the First Additional Protocol is customary in nature, with proponents pointing to the fact that proportionality is inherent in the principle of distinction151 and opponents arguing that there is 145 C. Greenwood, “Customary International Law and the First Geneva Protocol of 1977 in the Gulf Conflict” in P. Rowe, ed., The Gulf War 1990-91 in International and English Law, Routledge, London, 1993, 63 at 85. 146 After reviewing the use of “smart bombs” and “dumb bombs” by allied air forces in the Persian Gulf War, Middle East Watch called on the Pentagon to explain what factors were considered and weighed in the decision-making process, and, specifically, whether cost was a factor in the choice of munitions and, if so, how significant a factor it was. (Middle East Watch, Needless Deaths in the Gulf War: Civilian Casualties During the Air Campaign and Violations of the Laws of War, Human Rights Watch, New York, 1991 at 127). 147 St. Petersburg Declaration, supra note 78. 148 The customary nature of the principle of distinction was authoritatively recognised by the International Court of Justice in the Nuclear Weapons Advisory Opinion, supra note 25 at 257 paras 78-79. See also, ICTY, Prosecutor v. Dusko Tadic, IT-94-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction of 2 October 1995 at para.127; ICTY, Prosecutor v. Zoran Kupreskic et al., IT-95-16-Y, Judgement of 14 January 2000 at para. 524 [hereinafter Kupreskic]. 149 J.G. Gardam, “Necessity and Proportionality in jus ad bellum and jus in bello” in L. Boisson de Chazournes & P. Sands, eds., International Law, the International Court of Justice and Nuclear Weapons, Cambridge, Cambridge University Press, 1999, 275 at 284. 150 ICTY Final Report, supra note 31 at 507 para. 48. 151 In the Kupreskic case, the ICTY affirmed the customary nature of the proportionality principle as embodied in Articles 57 and 58 of the First Additional Protocol. In a sweeping statement, it characterised these provision as being “part of customary international law, not only because they specify and flesh out general pre-existing norms, but also because they do not appear to be contested by any State, including those which have not ratified

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an absence of consensus regarding what the concept of proportionality means.152 The debate seems pointless to the extent that whether or not one agrees with the way in which the principle has been codified in the First Additional Protocol, proportionality is a “necessary part of any decision making process which attempts to reconcile humanitarian imperatives and military requirements during armed conflict.”153 Despite wide acceptance of the applicability of some notion of proportionality under customary international law, the principle proves difficult to interpret in practice. The task of balancing dissimilar values that cannot be quantified – military gains and humanitarian considerations – entails a wide margin of appreciation and is bound to yield a less than satisfactory outcome. Against this messy reality, the best that can be asked of the decision maker is that he or she act honestly and competently, in light of the circumstances ruling at the time.154 As one author writes, the attacking Party cannot “simply turn a blind eye on the facts of the situation; on the contrary, he is obliged to evaluate all available information.”155 It is expected that rules of engagement be tailored to the situation in the battlefield and that training involve a consideration of the indicators that are likely to alter the proportionality calculation one way or the other. In the final analysis, these are elements that will militate in favour of an attacking Party’s plea that the collateral damage it caused should be excused. It has been suggested that, where possible, belligerents should keep records of their proportionality evaluation and make such records public after a certain period of time.156 Not only would this facilitate the work of the prosecution and the defence in potential war crimes trials, but it would also give the public a greater sense of the role that the laws of war play in the targeting process.157 It comes as no surprise to learn that codifying the notion of proportionality was a challenging task. The absence of the terms ‘proportionate’ or ‘disproportionate’ in the text of the First Additional Protocol provisions attests to the difficulty that characterised the negotiations. The first occurrence of the concept of proportionality is at Article 51(5)(b), where the notion is articulated as an example of an indiscriminate attack. The second and third occurrences are in the Protocol” (supra note 148 at para. 524). In the Nuclear Weapons Advisory Opinion, Judge Higgins refers to the customary nature of the principle of proportionality when she writes: “The principle of proportionality, even if finding no specific mention, is reflected in many provisions of Additional Protocol I to the Geneva Conventions of 1949. Thus even a legitimate target may not be attacked if the collateral civilian casualties would be disproportionate to the specific military gain from the attack” (Dissenting Opinion of Judge Higgins, supra note 25, 583 at 587 para. 20). See also Rule 14, Customary IHL, Vol. I, supra note 29 at 46. 152 For a vociferous critique of the customary nature of the proportionality principle, see W. Hays Parks, “Air War and the Law of War”, supra note 10 at 168ff. 153 W.J. Fenrick, “The Rule of Proportionality and Protocol I in Conventional Warfare”, (1982) 98 Military Law Review 91 at 125. See also, Murphy, supra note 142 at 248: “In my view, it is not necessary to decide whether ‘proportionality’ is part of customary international law or simply a policy consideration or a ‘principle’ that commanders should take into account during the course of armed conflict.” 154 Solf, “Article 51” in Bothe et al., supra note 29 at 310 para. 2.6.2. 155 F. Kalshoven, “Implementing Limitations on the Use of Force: The Doctrine of Proportionality and Necessity” in Proceedings of the 86th Annual Meeting, The American Society of International Law, 1992, 40 at 44. 156 Sassòli, “Targeting: Scope and Utility of the Concept of ‘Military Objectives’ for the Protection of Civilians in Contemporary Armed Conflicts”, supra note 31 at 204-205. 157 Ibid.

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Article 57, which deals with precautions in attack. Subparagraph 2(a)(iii) enjoins those who plan or decide upon an attack to refrain from launching an attack which may be expected to cause excessive casualties, while subparagraph 2(b) requires the cancellation or suspension of an attack if it becomes apparent that it will breach the principle. The fourth and final occurrence of the principle in the First Additional Protocol is at Article 85(3)(b), which considers the launching of a disproportionate attack as a grave breach and refers to the definition in Article 57(2)(a)(iii). The latter describes the prohibited attacks as ones,

which 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.

B. Textual interpretation The word ‘excessive’ was chosen over the notion of ‘disproportionate’ because it conveys the idea that the disproportion is so great as to be clearly discernible.158 Given that the factors in the equation cannot be easily quantified, the rule can really only be aimed at preventing breaches that are plain and manifest.159 Under the Statute of the International Criminal Court, the word ‘excessive’ is qualified by the adverb ‘clearly’, indicating that for the purpose of individual criminal responsibility the threshold is higher.160 As far as the terms ‘concrete and direct’ are concerned, they indicate that the military advantage should be established with some certainty. How then does this standard differ from the ‘definite’ military advantage required to satisfy the two-pronged test for an object to be considered a military objective under Article 52(2), explored in Part One of this paper? 161 The word ‘concrete’ connotes an advantage that is both specific and perceptible, in much the same way as the term ‘definite’.162 Where the standards differ is with the term ‘direct’, which introduces the idea that the advantage is expected to accrue “without intervening condition of agency”163. In other words, it cannot be contingent upon other intervening variables, such as the anticipated success of another military operation which is being conducted elsewhere. This question is conceptually different from that of circumscribing the meaning and scope of ‘attack’164 but, in practice, the two are often confused. Some authors interpret the words ‘concrete and direct’ as requiring that proportionality be assessed in relation to each individual attack or military operation, rather than on a cumulative basis.165 Yet, this ignores that when Article 52(2) refers to a ‘definite’ military advantage, it also excludes an evaluation 158 Dinstein, supra note 35 at 120. 159 Solf, “Article 51” in Bothe et al., supra note 29 at 310 para. 2.6.2. 160 Rome Statute, art. 8(2)(b)(iv). 161 The ICRC Commentary provides an explanation of these terms that fails to address the question of how ‘concrete and direct’ differs from ‘definite’. It states that “the advantage concerned should be substantial and relatively close, and that advantages which are hardly perceptible and those which would only appear in the long term should be disregarded” (supra note 13 at para. 2209). 162 Solf, “Article 57” in Bothe et al., supra note 29 at 365 para. 2.7.2. 163 Ibid. 164 See above, Part One Section II. B. Definite military advantage. 165 See, inter alia, J.G. Gardam, “Proportionality and Force in International Law” (1993) 87 American Journal of International Law 391 at 407;

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that is based on something broader than a finite event.166 In either case, an attack need not be limited to the actions of an individual soldier, tank or aircraft.167 It might therefore be more useful to speak of the military advantage anticipated from a given tactical operation rather than from an ‘attack’. What then is meant by the adjective ‘direct’ in the formulation of the principle of proportionality? If a commander can consider the larger operational picture in deciding whether or not a military advantage justifies the risk of a certain amount of collateral damage, is it still useful to demand that the anticipated military advantage be ‘direct’? The drafters of the First Additional Protocol sought to circumscribe the scope of military considerations to be taken into account when performing a proportionality calculation. This must be reflected in any interpretation of the relevant provisions. By characterising the military advantage as ‘direct’, the articles that establish the principle of proportionality are not excluding the possibility of looking at the wider context of a tactical operation, but they are demanding that the concrete advantage be causally linked to the specific attack or operation. As such, it is rather unfortunate that the Statute of the International Criminal Court weakens the meaning of ‘concrete and direct’ by laying down that an assessment of what is excessive is to be based on the ‘overall’ military advantage.168 C. Interpretative difficulties In its Final Report to the Prosecutor – one of the few authoritative pronouncements on the question of proportionality – the ICTY Review Committee outlined the following four questions, presenting them as unresolved issues linked to the application of the proportionality principle: a. What are the relative values to be assigned to the military advantage gained and the

injury to non-combatants and / or the damage to civilian objects? b. What do you include or exclude in totalling your sums? c. What is the standard of measurement in time or space? and d. To what extent is a military commander obligated to expose his own forces to danger in

order to limit civilian casualties or damage to civilian objects?169 The answers to these questions depend largely on the context. For instance, as a conflict evolves militarily and politically, the value accorded to targets will change: at the outset of hostilities, a military objective may rank low on the list but as other targets are taken out, its significance may increase thereby legitimising the ensuing likelihood of civilian casualties.170 166 See above, Part One, Section II. B. Definite military advantage. 167 Dinstein, supra note 35 at 123. 168 Rome Statute art. 8(2)(b)(iv). At the Rome Conference on the Statute of the International Criminal Court, the ICRC made it clear that the addition of the word ‘overall’ to the definition of the crime could not be interpreted as changing existing law, see Statement of 8 July 1998, UN Doc. A/CONF.183/INF/10. 169 ICTY Final Report, supra note 31 at 508 para. 49. These questions are raised and explored more extensively in an article by W.J. Fenrick, “The Law Applicable to Targeting and Proportionality After Operation Allied Force: A View from the Outside”, supra note 4 at 75ff. 170 Hampson, supra note 69 at 94. The author gives the example of bridges in the 1990-1991 Persian Gulf War, which at the start of the war were classified as low priority: “If the bridge became the only way of crossing a river because all the other bridges had been destroyed, then in military terms its importance would have increased.” Professor Hampson points out that if the reason for accepting a higher level of casualties were primarily to ‘keep the attacking force busy’ whatever the actual usefulness of the bridge, such an attack would appear illegitimate.

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Similarly, if a political settlement is on the horizon, a military objective that was initially ranked as having a lot of importance may be taken off the target list because an attack would frustrate the prospective political settlement. More challenging to the universal application of the proportionality rule is the impact of the decision-makers’ background or value system since these are neither predictable nor can they be standardized. An example is varying attitudes to military casualties and civilian life. Different armies do not prioritise the avoidance of own side military casualties in the same manner; different societies and cultures do not approach human suffering in the same way.171 The international armed conflicts of the past fifteen years provide examples of clashing values that have obliged greater emphasis to be placed on the limits beyond which a certain amount of harm is considered an affront to the fundamental principle of distinction. Any attempt to establish a common understanding of the precise balance to be struck between military and humanitarian considerations is bound to be fraught with difficulty. Nevertheless, such difficulties should not become an excuse for ignoring the principle or for failing to condemn its violation in cases that are clear to everyone. Among the questions that were posed by the Committee Established to Review the NATO Bombing Campaign, two merit special attention because they provide insight into valuation issues that are, on the one hand, particularly prevalent in contemporary warfare and, on the other hand, capable of being addressed within the parameters of the laws of war. These are (i) the extent to which an attacking Party can factor in risk to its own force, and (ii) whether it is possible to take into account damage over time and space, when performing a proportionality calculation.

i. Risk to one’s own force At the outset, it must be conceded that the laws of war do not establish what degree of care is required of a soldier and what degree of risk to his or her life a soldier must take. The principle of proportionality offers little guidance in this matter except to prescribe that the protection of civilians requires a willingness to accept some own-side casualties.172 “Everything depends on the target, the urgency of the moment, the available technology and so on.”173 In recent years, a debate has arisen regarding the concept of ‘zero-casualty warfare’. Governments that are responding to the pressure of their constituency’s aversion to own-side casualties are being accused of valuing their military personnel more than the enemy’s civilian population.174 171 Schmitt, “The Principle of Distinction in 21st Century Warfare”, supra note 102 at para. 18. See also, Hampson, ibid. 172 Fenrick, “The Law Applicable to Targeting and Proportionality After Operation Allied Force: A View from the Outside”, supra note 4 at 78. According to the British defence doctrine’s definition of targeting, “there may be occasions when a commander will have to accept a higher level of risk to his own forces in order to avoid or reduce collateral damage to the enemy’s civil population.” (Joint Warfare Publication (JWP) 0-01, British Defence Doctrine, London, Ministry of Defence, 1997). 173 A.P.V. Rogers, “Conduct of Combat and Risks Run by the Civilian Population” (1982) 21:1-2-3-4 The Military Law and Law of War Review 293 at 310. 174 “‘[T]he no body bags policy posed, and continues to pose, a moral dilemma. It implies that the lives of your own pilots are worth more than the lives of the innocent civilians on the ground, since the acceptance of some collateral damage relates to the ‘others’, while the aim of ‘zero-casualty warfare’ only relates to ‘yourself’. The discrepancy is troublesome […]” (Bring, supra note 38 at 47-48).

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The 1999 NATO intervention in Kosovo brought the question of ‘zero-casualty warfare’ to the fore, with NATO forces incurring no combat casualties and there being a significant number of civilian casualties among the people of the Federal Republic of Yugoslavia. The incident that caused the most reactions was the attack on a convoy of Albanian refugees on April 14, 1999, in which approximately 75 were killed and another 100 or so were injured. The NATO aircraft that launched the missiles were flying at an altitude of 15,000 feet, in order to minimize danger to the pilots.175 It has since been recognised that had the aircraft been flying at a lower altitude, the aircrew could have better scrutinised the target and cancelled the attack upon realising that the convoy was not a military objective.176 The interesting question here is whether a policy of ‘zero-casualty’ warfare represents an affront to the proportionality principle. The reasoning is that by factoring the preservation of one’s own forces into the evaluation of the military advantage anticipated from an attack, an attacking Party justifies a greater likelihood of collateral damage, thereby unfairly skewing the proportionality calculation in favour of military considerations. In order to answer the question properly, it is necessary to clarify what is meant by the security of one’s own force. This will shed light on what can be perceived to be confusion surrounding the analysis of the 1999 Djakovica convoy incident. When States assert their right to consider the security of their own forces in the targeting process, what is generally understood is that they reserve the right to attack certain military objectives on account of the need to protect their forces. In defining what constitutes a legitimate military objective, Article 52(2) requires that the destruction, capture or neutralization of the target offer a definite military advantage. In this context, military advantage is interpreted by many States as including increasing or maintaining security for the attacking forces or friendly forces.177 For example, an attacking Party may argue that destroying a bridge provides a definite military advantage on the basis that it will slow down the advances of the enemy and buy time for its own forces to re-establish themselves in an offensive position. Assuming that the bridge is validly characterised as a military objective, the proportionality calculation then intervenes in order to balance the anticipated military advantage with the likelihood of collateral damage. The potential for military casualties incurred by the attacking side in the process of the attack itself are strictly speaking not part of the equation. As such, it is unlikely that the advantage that may justify destroying the bridge would also justify damage to a convoy of refugees that happened to be crossing the bridge at the time of the attack. In the NATO attack that caused death and injury on account of a failure to properly verify the status of the Djakovica convoy, the main rule at issue is the obligation to take feasible precautions in attack.178 The missile attack was not in itself motivated by the need to secure NATO forces and therefore it is inappropriate to assess the collateral damage from the

175 The altitude of 15,000 feet placed pilots “out of range of most hand-held surface-to-air missiles and anti-aircraft artillery” (Rogers, “Zero-Casualty Warfare” (2000) 82:837 International Review of the Red Cross 165 at 173). 176 ICTY Final Report, supra note 31 at 518 para. 70. 177 See, inter alia, Annotated Supplement, supra note 14, Chapter 8: The Law of Targeting at para. 8.1.1. 178 API art. 57(2)(a)(i).

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perspective of whether or not it was proportionate to the NATO policy of flying at an altitude of 15,000 feet. The relevant question that needs to be asked about the incident is whether it was feasible for the aircrew in action to verify the status of the target. While feasibility certainly involves a consideration of the pilot’s security, it does not follow that an attack can be launched even if the answer to the question is no. The laws of war state that if there is a reasonable doubt as to the status of the target, it will be presumed to be civilian.179 In line with this reasoning, one author has suggested an approach for factoring the security to one’s own forces into an evaluation of the rule on feasible precautions:

[I]f the target is assessed as not being worth [a greater degree of] risk and a minimum operations altitude is set for their protection, the aircrew involved in the operation will have to make their own assessment of the risks involved in verifying and attacking the assigned target. If their assessment is that (a) the risk to them of getting close enough to the target to identify it properly is too high, (b) there is a real danger of incidental death, injury or damage to civilians or civilian objects because of lack of verification of the target, and (c) they or friendly forces are not in immediate danger if the attack is not carried out, there is no need for them to put themselves at risk to verify the target. Quite simply, the attack should not be carried out.180

This approach may be criticised for setting forth criteria that are overly absolute but the spirit of the suggestion is worth preserving to the extent that it represents a useful attempt to provide practical guidance for those involved in an aerial attack. A revised version might be worded as follows:

[…] If their assessment is that (a) the risk to them of adequately verifying the target is too high, (b) there is a danger of excessive incidental death, injury or damage to civilians or civilian objects because of lack of verification of the target, and (c) they or friendly forces are not in predictable danger if the attack is not carried out, there is no need for them to put themselves at risk to verify the target. […]181

The interesting and thorny question is what happens if conditions (a) and (b) are met but (c) is lacking? In other words, should a target that cannot be adequately verified be nevertheless attacked on the basis that failing to do so would place the pilots in danger? At that point, the lives of innocent civilians are being set against the lives of the aircrew. Arguably, the only way that the attack could be lawful is if the incidental civilian damage remains proportionate to the military advantage gained, with the understanding that the military advantage must amount to more than saving the lives of the pilots, but could very well include saving the lives of own or friendly forces on the ground. 179 API art. 52(3), see discussion above, Part One, Section II. A. Effective contribution to military action. According to Stefan Oeter, “[t]he decision factor in that respect should be the perspective of the soldier acting on the ground, or of the military commander deciding on the attack: serious doubts must be obvious from his perspective before there is any reason to invoke the presumption contained in Art. 52, para. 3” (Oeter, supra note 34 at para. 446.2.) 180 Rogers, “Zero-Casualty Warfare”, supra note 175 at 179. 181 These suggestions were put forward by experts who met in May 2005 to discuss a previous version of this study.

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All that can be concluded from the fact that the political and military imperatives of certain States prioritise the safety of their own troops is that this type of policy demands that greater attention be paid to measures of precaution. This is particularly true when the technological superiority of an army renders its final victory doubtless. Rather than introducing an element of normative relativism, this conclusion is simply recognising that the superiority that enables an attacking Party to provide greater safety to its armed forces also broadens the range of precautions that can feasibly be implemented. As for the specific case of NATO aircraft flying at an altitude of 15,000 feet, it may be necessary to add a caveat to the ICTY Final Report’s statement to the effect that “there is nothing inherently unlawful about flying above the height which can be reached by enemy defenses.”182 If it were ever established that by bombing from a certain height, combat aircraft increased the risk of causing collateral damage because there was a greater probability that the missiles they launched would miss their intended target, then there would be something potentially unlawful about bombing from such a height. Arguably, attacks launched in this manner would risk being indiscriminate if it were established that they could not “be directed at a specific military objective.”183

ii. Factoring in damage over time and space The proportionality rule requires that the military advantage anticipated from an attack not be excessive when compared with incidental loss of life, injury to civilians, damage to civilian objects, or a combination thereof. Whereas the military advantage is limited to that which is ‘concrete and direct’, the damage envisioned is only defined as having to be caused by the attack. Causality is a key legal concept that involves a direct relationship between an action and its effects. The more factors that intervene in the chain of events, the less one can argue that the effects are caused by the initial action or omission. Time and space are factors that mitigate causality by multiplying the chance that a contingency of events intervenes to break the causal link, rendering the damage remote. The reality of certain types of damage that occur in armed conflicts, however, is that they only materialise over time or that they are experienced beyond the location of combat operations. A prime example is damage to the environment. In recent years, there has been a growing understanding of the long-term effects of certain weapons or methods of combat on the ecosystem, as well as growing sensibility to the value of environmental considerations. Today, most States agree that the balance to be struck between military and humanitarian considerations must take into account the potential for damage to the environment that is not immediately apparent.184 This is reflected in the prohibition on attacks that may cause widespread, severe and long-term damage to the natural environment and in the requirement that any environmental damage, especially long term damage, should be factored into proportionality calculations.185 Another example of damage that materialises over time and space is the risk posed by unexploded remnants of war, which

182 ICTY Final Report, supra note 31 at 511 para. 56. 183 API art. 51(4)(c). 184 “[T]he legal position consistent with present-day customary [law] is that, when an attack is launched, environmental considerations must play a role in the targeting process” (Dinstein, supra note 35 at 177). 185 For a discussion of the measures of special protection that apply to the environment, see below, Part Three, Section V. Natural environment.

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include antipersonnel landmines, antivehicle mines, submunitions186 from airborne cluster bombs or land-based systems as well as other unexploded ordnances (UXO). Even though antipersonnel landmines are now widely prohibited,187 post-conflict damage resulting from submunitions and other UXO that have failed to explode on impact – as they are designed to do – subsists. In November 2003, an international agreement was adopted in the form of a fifth Protocol to the 1980 Convention, which deals comprehensively with the use and clearance of unexploded munitions.188 One of the core principles of the newly adopted conventional instrument is that States that insist on using munitions which remain after the end of hostilities have a responsibility to assist in clearance. This type of approach is a useful and creative way to hold belligerents accountable for acts that pose a long-term threat to civilians. It may also be the only realistic way to do so. Arguments that highlight the indiscriminate nature of submunitions have so far failed because the military insists that they can be aimed at a specific military objective while downplaying the danger to civilians posed by unexploded ordnances. Proportionality arguments are similarly challenged: practically speaking, how can civilian casualties that occur years after the conflict has ended, when unexploded submunitions are inadvertently activated, be factored into a proportionality calculation in the heat of the battle? Perhaps the answer is that they cannot but that respect for the proportionality principle extends beyond the battlefield, entailing an obligation to minimize future casualties after the war is ended. This is the reasoning that underlies the fifth Protocol as well as the comments recently made by an author who had this to say about the issue:

The post-war clearance of unexploded munitions, though not a legal requirement as such, can also limit direct civilian damage. Proportionality in warfighting should be seen as a joint responsibility of the civilian and military sectors together, extending into the post-conflict period.189

The suggestion that “[w]e may wish to think of proportionality as possessing the elements of time – and as a dynamic requirement,” 190 is particularly useful in dealing with the recent propensity to view attacks on dual-use infrastructure as indispensable to an effective wartime

186 “Submunitions are small bomblets that are delivered by a cluster bomb or artillery shell. They are dispersed in large numbers (varying from tens at a time to 600-700 per bomb) and have the capacity to spread destruction over an area as large as a football field – which is considered their military advantage.” (P. Herby & A.R. Nuiten, “Explosive Remnants of War: Protecting Civilians Through an Additional Protocol to the 1980 Convention on Certain Conventional Weapons” (2001) 83:841 International Review of the Red Cross 195 at 198). 187 Amended Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Amended Protocol II to the1980 Convention) of 3 May 1996, reprinted in Roberts & Guelff, supra note 3 at 536; Ottawa Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, 18 September 1997, reprinted in Roberts & Guelff, ibid. at 645. 188 Protocol on Explosive Remnants of War (Protocol V to the 1980 Convention) of 28 November 2003, ICRC IHL Database, available online: <http://www.icrc.org/ihl.nsf/FULL?OpenView> 189 R. Wedgwood, “Propositions on the Law of War after the Kosovo Campaign” in A.E. Wall, supra note 30, 433 at 440 190 Ibid.

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campaigns.191 Part One of this study discussed the particular problems associated with targeting core facilities, such as electricity grids, that cause derivative damage to civilians.192 It concluded that rather than trying to establish in each particular case whether or not dual-use objects are legitimate military objectives, it would be more constructive to explore ways in which the proportionality principle might be used to limit incidental effects on the civilian population and civilian objects.193 Increasingly, commentators argue that the potential for long-term damage resulting from attacks on certain targets, most notably electricity, demands that the proportionality calculation include a consideration of reverberating effects.194 Anticipating criticism that this would transform the targeting process into “an exercise in theoretical scholastic postulation”, one commentator defends his position in the following terms:

[I]n essence, the planner’s function does not change or become unduly burdensome merely because an additional level of cognition is required in order to fulfil faithfully the obligations of discrimination and proportionality relative to collateral costs. Neither would it require some hypothetical collateral casualty assessment.195

The strength of the argument that derivative damage must factor into the proportionality calculation is that it highlights the ‘insincerity’ of those who refuse to admit the foreseeability of long-term civilian casualties when targeting key facilities within the national infrastructure.196 Since the 1990-1991 Persian Gulf War, it has been established that neutralizing the national electric power grid and targeting water treatment facilities or 191 “Prevailing military doctrine emphasizes infrastructure attacks, particularly attacks on the national power grid, as an essential means to degrade an enemy’s air defense, telecommunications, and command and control capabilities” (Crawford, supra note 90 at 108-109). 192 See above, Part One, Section III. A. Dual-use targets. 193 Professor Francoise J. Hampson suggests that what is needed for addressing the problems posed by targeting dual-use facilities “is a qualification to the definition of military objective.” She argues that collateral damage could be reduced by insisting that the criteria of definite military advantage at Article 52(2) of the First Additional Protocol be reinforced by an additional requirement that the attack be necessary to the achievement of a clearly established war aim (supra note 69 at 100). This line of argument seems unhelpful because of the difficulty of countering the dual claim that, in most cases, an integrated power grid makes an effective contribution to modern military action, and that crippling the air defence system of the enemy by cutting it off from the national electric power system constitutes a definite military advantage. In support of this contention, see Shue & Wippman, supra note 73 at 569-570. 194 See Crawford, supra note 90 at 114-115; M.N. Schmitt, “Wired Warfare: Computer Network Attack and jus in bello” (2002) 84:846 International Review of the Red Cross 365 at 393; M.L. Cook, “Strategic Theory, Military Practice and the Laws of War: The Case of Strategic Bombing” in A. Lang Jr., A.C. Pierce & J.H. Rosenthal, eds., Ethics and the Future of International Conflict, New York, Carnegie Council on Ethics and International Affairs, 2004 (forthcoming), 14ff. (on file with the author).; Shue & Wippman, ibid. 195 Crawford, ibid. at 115. 196 During the meeting of experts that was convened in May 2005 around a previous version of this study, one expert explained that in the planning of an attack, the following reverberating effects were taken into account when conducting a proportionality calculation: the risk of disease, access to clean water and climactic effects. Others commented that while taking such long-term consequences into consideration was appropriate, it was not required by the laws of armed conflict. Finally, one expert noted that as far as electrical grids are concerned, any change in the targeting practice of the United States between the Persian Gulf War in 1990-1991 and the most recent war in Iraq was not to be attributed to a sense of legal obligation. Such changes had to be understood in terms of political opportunity and considerations of economy of force.

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sewerage plants, is likely to result in major failures in the health sector, thereby affecting the most vulnerable segments of society.197 Because so much turns on the causal link between the attack and the damage, it is clear that any move toward introducing derivative harm into the proportionality calculation would have to be limited to damage that is foreseeable or likely or that can be reasonably expected.198 What is less clear is how to introduce a cumulative criterion in the proportionality calculation since the long-term casualties at issue are not the result of one attack, but rather they are the consequence of what may be a series of tactical operations against elements of the national infrastructure. The proportionality rule as it is codified in the First Additional Protocol demands that each attack be assessed individually,199 by requiring that the anticipated military advantage be ‘concrete and direct’. Yet, in modern U.S. Air Force doctrine, the military advantage sought from attacks on infrastructure is generally achieved through the cumulative effect of parallel strikes.200 Already, this line of argument is outside the realm of traditional operations envisioned by the drafters of the provisions on proportionality. However, one of the reasons for adopting a policy of “effects-based targeting” is that total destruction of targets is no longer necessary.201 What matters according to this theory is defeating the strategy of the enemy by reducing or removing its capability to conduct military operations. If this effects-based approach to targeting is both more efficient for winning the war and avoiding direct casualties, then it seems logical to expect that it should be implemented with a view to limiting derivative damage, also calculated on a cumulative basis. States that possess the capacity to disable an electrical grid without destroying surrounding dwellings or injuring civilians in the vicinity of the facility will have a tendency to invoke their precision capabilities in order to bolster their claim that the object in question is a valid military target. Given the difficulty of contesting such claims because of the increasing intermingling of civilian and military activities, it appears more helpful to introduce greater humanitarian considerations through the proportionality rule. In other words, factoring in derivative harm to medical or water treatment facilities, regardless of whether or not the harm to the civilian population is 197 In 1992, William M. Arkin, a former U.S. Army intelligence officer and analyst with Greenpeace International, reported that attacks against power plants during the 1990-1991 Persian Gulf War affected water supplies, sewage treatment and caused electricity shortages that may have contributed to the deaths of 70,000-90,000 Iraqis since the end of the war (in “Tactical Bombing of Iraqi Forces Outstripped Value of Strategic Hits, Analyst Contends”, Aviation Week & Space Technology, interview with W.M. Arkin, 27 January 1992, accessed on Lexis-Nexis). 198 Some of the experts present during the May 2005 meeting convened around a previous version of this study wondered how the likelihood of long-term damage could be assessed without the help of public health professionals or environmental specialists and whether it was realistic to require that such persons be associated with the targeting process. 199 Hampson, supra note 69 at 98. 200 The following excerpt from a recent U.S. Air Force Doctrine Document entitled Strategic Attacks summarizes the U.S. approach to the parallel attack of a series of targets: “The goal is to cripple the enemy’s national political and military leadership’s ability to act and bring elements of the national infrastructure and, resources permitting, operational and tactical targets under attack. Through overwhelming parallel attack of critical centers, the enemy’s strategy is defeated by reducing or removing its capability to conduct military operations. No longer must air forces serially destroy each target class before moving on to the next” (Air Force Doctrine Document 2-1.2, 20 May 1998 at 13, emphasis in the original, available online: Joint Electronic Library <http://www.dtic.mil/doctrine/jel/service_pubs/afd2_1_2.pdf>). 201 On effects-based targeting, see above, Part One Section III. B. i.

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intended, is all the more relevant when the technology that enables highly surgical strikes against power plants can be employed in a manner that minimises such reverberating effects. During Operation Allied Force, NATO employed a newly-developed weapon that knocked out Yugoslav power grids and transformer yards, cutting off 70 percent of the electricity for just over a day.202 This involved aircraft dropping small dispensers containing specially treated wires that intertwined and caused instant short circuits in the targeted system. With the advent of computer network attacks,203 a similar result can be achieved without even having to use aircraft. Such means of attack not only avoid physical damage to the facility but also limit the potential for long-term damage to the civilian population. If the technology is available, then the principle of minimum feasible damage suggests that it should be so used.204 Among the options recently explored for dealing with the problem of excessive long-term damage caused by targeting dual-use facilities, the literature offers two that are worth considering briefly. The first proposes the establishment of a regime of special protection for dual-use facilities that are deemed indispensable to the survival of the civilian population.205 The authors of this proposal draw an analogy between facilities that supply the power necessary for the necessities of life and the objects protected under Article 54 of the First Additional Protocol.206 Article 54 prohibits attacks against objects indispensable to the survival of the population for the specific purpose of denying them for their sustenance value to the civilian population or the adverse Party, whatever the motive. Power plants and other infrastructure that contribute directly to the survival of the population are rarely targeted for the specific purpose of starving the civilian population, making it impossible to slot these objects under Article 54. That said, given the significant potential harm caused by targeting basic infrastructure, the proposal calls for a more stringent proportionality test where the survival of the civilian population is at issue: not only must the military advantage anticipated be concrete and direct, but it must also be ‘compelling’.207 At the moment, no such additional criterion is applicable but in the event that States one day agree that a regime of special protection should apply to certain dual-use facilities, this proposal may constitute a helpful starting point. The second option worth mentioning borrows the argument made above with respect to unexploded remnants of war. This is a policy-oriented proposal, which may be especially 202 This weapon is known as CBU-94. It was apparently offered up by the U.S. as a result of France’s reluctance to approve the Serbian electrical network as a legitimate NATO target (D. Priest, “Bombing by Committee; France Balked at NATO Targets”, The Washington Post, 20 September 1999, accessed on Lexis-Nexis.) 203 The U.S. Department of Defense defines computer network attacks as: “Operations to disrupt, deny, degrade, or destroy information resident in computers and computer networks, or the computers and networks themselves. Electronic attack (EA) can be used against a computer, but it is not computer network attack (CNA). CNA relies on the data stream to execute the attack while EA relies on the electromagnetic spectrum. An example of the two operations is the following: sending a code or instruction to a central processing unit that causes the computer to short out the power supply is CNA. Using an electromagnetic pulse device to destroy a computer's electronics and causing the same result is EA. Also called CNA” (Department of Defense Dictionary of Military Terms, available online: Joint Electronic Library <http://www.dtic.mil/doctrine/jel/doddict/data/c/01176.html>). 204 For a discussion of the principle of minimum feasible damage, see above Section III. 205 Shue & Wippman, supra note 73. The authors call their proposal ‘Protective Proportionality’. 206 For a discussion of Article 54 of the First Additional Protocol, see below, Part Three, Section I. B. Humanitarian relief and the survival of the population. 207 Shue & Wippman, supra note 73 at 574.

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appropriate in the case of interventionist conflicts, such as recent interventions in Kosovo, in Afghanistan and in Iraq. It posits that victorious States and their allies have a responsibility to assist in the repair of the infrastructure and economy at the end of hostilities, in order to limit the long-term damage that may materialise as a result of their attacks.208 This is a good example of searching for solutions beyond the letter of the law where it is clear that the existing regime faces new challenges because of new battlefield realities. To be certain, a commitment to offer post-conflict assistance does not retroactively justify an act that constituted a violation of the jus in bello at the time it was committed.

208 Wedgwood, supra note 189 at 440.

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PART THREE – SPECIFICALLY PROTECTED OBJECTS A core part of the legal regime applicable to targeting concerns certain categories of objects that benefit from special measures of protection, under the laws of war. As was stated in the discussion of target selection in Part One, every civilian object can become a legitimate military objective if by its nature, location, purpose or use, it makes an effective contribution to military action and if its destruction, capture or neutralization offers a definite military advantage.209 However, certain objects are, so to speak, more civilian than others. Attacking them will require more stringent evidence of this change in status or a higher degree of precautionary measures. In most cases, what the law is seeking to protect is the civilian population because it is more likely to be harmed as a result of certain objects being targeted. In the case of cultural property and the natural environment, there is a slight shift away from this anthropocentric approach210 to the law: the applicable rules also protect these ‘objects’ for what they are and what they represent to generations unborn. In what follows the various regimes of special protection are reviewed with a view to identifying the objects they affect as well as the circumstances under which the protection they afford will be lost. Six categories of objects have been defined, by and large replicating the categories already set out in the law with one notable exception: objects involved in peacekeeping operations. This last category of objects was added to the list even though the protection from which it benefits is equivalent to civilian protection. The reason for including it in this part of the study is that it draws attention to a relatively new phenomenon on the battlefield and highlights a legal regime that treats as civilian objects what would otherwise be considered military. I. Objects necessary for the provision of medical care and humanitarian relief A necessary corollary of the protection afforded to combatants and civilians that are sick, wounded, shipwrecked or in need of other types of humanitarian relief, is the protection of objects that are necessary to remedy their suffering. The laws of war prohibit the targeting of medical units211, medical transport212 and objects used for humanitarian relief operations213.

209 See above, Part One, Section II. A. Effective contribution to military action. 210 An approach that centres on the value humans derive from cultural property or the natural environment, whether for their ‘utility’ or for more abstract qualities, such as their aesthetic value; as opposed to an approach that sees such objects in terms of their intrinsic value. For an analysis that favours an anthropocentric approach to the environment, see P.J. Richards & M.N. Schmitt, “Mars Meets Mother Nature: Protecting the Environment During Armed Conflict” (1999) 28 Stetson Law Review 1047 at 1085ff. 211 “Medical units” means establishments and other units, whether military or civilian, organised for medical purposes, be it fixed or mobile, permanent or temporary. The term includes, for example, hospitals and other similar units, blood transfusion centres, preventive medicine centres and institutes, medical depots and the medical and pharmaceutical stores of such units. The relevant provisions are GCI art. 19; CGII art. 23; GCIV art. 18; API art. 8(e); Rome Statute art. 8(2)(b)(xxiv). See also Rule 28, Customary IHL, Vol. I, supra note 29 at 91. 212 “Medical transport” means any means of transportation, whether military or civilian, permanent or temporary, assigned exclusively to medical transportation and under the control of a competent authority of a party to the conflict. This includes means of transportation by land, water or air, such as ambulances, hospital ships and medical aircraft. The relevant provisions are GCI art. 35; GCIV art. 21; API art. 21; Rome Statute art. 8(2)(b)(xxiv). See also Rule 29, Customary IHL, Vol. I, ibid. at 98. For a discussion that outlines the differences in the regimes applicable to medical units on land, hospital ships and medical aircrafts, see Dinstein, supra note 35 at 166-172.

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A. Medical care In the case of medical units and medical transport, it can broadly be stated that protection ceases if the facilities or vehicles are used to commit ‘acts harmful to the enemy’.214 Neither the Geneva Conventions nor the First Additional Protocol defines ‘acts harmful to the enemy’ but they limit possible interpretations of this expression by enumerating acts that do not remove protection.215 Chief among such acceptable situations is the fact that the personnel working in the medical unit or vehicle be lightly armed. While somewhat contentious, this allowance reflects the reality on the ground: medical unit and vehicle personnel must be able to defend themselves as well as the wounded and sick in their charge from attacks perpetrated by bandits or looters. In order to avoid any potential for abuse and highlight the defensive purpose of the allowance, the only weapons that are permitted are light individual weapons.216 Perhaps more to the point, however, is the rule that in no circumstances shall the arms be used for any other purpose than that of protecting the personnel or the wounded and sick in their charge.217 In other words, it is excluded that members of the personnel take advantage of their right to bear arms in order to participate in combat operations. Another act that does not remove protection is the presence of a guard to protect the medical unit or vehicle – its staff as well as the wounded and sick – against looting and violence. Any use of weapons by a guard is subject to the same conditions as the use of arms by medical personnel.218 In no circumstance should the presence of a guard affect the course of combat by, for example, getting in the way of the adverse Party’s attempt to capture or control the medical unit or vehicle. Other situations that cannot be construed as ‘acts harmful to the enemy’ include finding small arms and ammunition in the unit or vehicle that have been taken from the wounded and the sick, but have not yet been handed over to the proper service; and the presence of wounded and sick combatants inside a civilian medical unit or vehicle. The Commentary to Article 21 of the First Geneva Convention indicates that during the negotiations that led to the adoption of the 1949 Conventions, “it was considered unnecessary

213 The rules protecting objects used for humanitarian relief operations are a corollary to the prohibition of starvation since the safety and security of humanitarian relief objects is an indispensable condition for the delivery of humanitarian relief to civilian populations threatened with starvation. The relevant provisions are GCIV 59; API 70(4); Rome Statute art. 8(2)(b)(iii). See Rule 32, Customary IHL, Vol. I, ibid. note 29 at 109. For a discussion of the special protection afforded to objects indispensable to the civilian population, see below, Section I. B. 214 For medical units and transport on land, see GCI art. 21; GCIV art. 19; API art. 13(1); for medical ships, see GCII art. 34; for medical aircrafts, see API 28(1). 215 For medical units and transport on land, see GCI art. 22; GCIV art. 19; API art. 13(2); for medical ships, see GCII art. 35; for medical aircrafts, see API art. 28(3). 216 “Light individual weapons” is an expression that was coined by the Committee in charge of drafting API art. 13. According to the ICRC Commentary, “it refers to weapons which are generally carried and used by a single individual. Thus not only hand weapons such as pistols are permitted, but also rifles or even sub-machine guns. On the other hand, machine guns and any other heavy arms which cannot easily be transported by an individual and which have to be operated by a number of people are prohibited.” (ICRC Commentary API, supra note 13 at para. 563) 217 See provisions quoted above, supra note 215. 218 ICRC Commentary API, supra note 13 at para. 567.

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to define ‘acts harmful to the enemy’ – an expression whose meaning is self-evident and which must remain quite general.”219 Nonetheless, some examples of harmful acts are listed in the Commentary: the use of a medical unit or medical vehicle as a shelter for able-bodied combatants or fugitives, as an arms or ammunition dump, as a military observation post, or as an obstacle to the enemy’s military action.220 Most importantly, a medical unit or vehicle may not be used to shield military objectives from attack.221 A party that considers that a medical unit or vehicle has foregone its protection must give prior warning before launching the attack. This requirement reinforces the general provision on precautionary measures,222 adding a specific safeguard in order to ensure the humane treatment of the wounded who, in most circumstances, are not responsible for the unlawful acts committed. A warning must be accompanied, where appropriate, by a reasonable time period to allow the unlawful acts to stop or for the wounded and sick to be evacuated to a place of safety.223 The rule that the warning be given ‘where appropriate’ is meant to cover situations where it is not practicable to set a time-limit, such as when an attacking Party is met by heavy fire coming from an ambulance or a hospital.224 Despite its discretionary formulation, it is not to be interpreted lightly. In any event, even if the object has lost its protection, the legitimacy of an attack will still depend on the application of the principle of proportionality. This principle remains applicable in any decision to target a military objective, regardless of whether or not the objective in question has lost its protection through the enemy’s misuse. By way of illustration, the decision to attack a hospital that is occupied by enemy armed forces and used as a base for military action while still sheltering a large amount of patients and medical staff that have no responsibility for the presence of such armed personnel, should, at the very least, involve the issuance of a warning. B. Humanitarian relief and the survival of the population Objects involved in humanitarian relief operations are civilian objects that benefit from added protection under the laws of war because they are necessary for the survival of the civilian population. Not only is it illegal to target such objects, but it is also prohibited to destroy,

219 J. Pictet, ed., Commentary to the First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, International Committee of the Red Cross, 1952, at 200-201. The Commentary goes on to note that the ICRC prepared the following alternative wording in case the Conference wished to be more explicit: “acts the purpose or effect of which is to harm the adverse Party, by facilitating or impeding military operations”. The fear was that some Parties might interpret the expression as allowing the targeting of hospitals or ambulances for what they saw as being an interference in their tactical operations but which, in reality, was only the carrying out of humane duties. 220 Ibid. at 201. 221 API art. 12(4): “Under no circumstances shall medical units be used in an attempt to shield military objectives from attack. Whenever possible, the Parties to the conflict shall ensure that medical units are so sited that attacks against military objectives do not imperil their safety”. This prohibition is deemed to apply mutatis mutandis to medical vehicles (API art. 21) and medical aircrafts, with the added restrictions that the latter may not be used to collect or transmit intelligence data nor to carry any armament (except small arms taken from the wounded, sick and shipwrecked, not yet handed over to the proper service) (API art. 28). 222 API art. 57, see above, Part Two, Section II. Precautionary measures. 223 GCI art. 21; GCIV art. 19; API art. 13(1). 224 See ICRC Commentary API, supra note 13 at para. 556.

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misappropriate and loot humanitarian relief objects.225 To this effect, any looting or other unjustified diversion of relief must be punished and armed forces must be clearly and strictly instructed on this matter.226 A related prohibition, falling more generally in the category of prohibited methods of warfare but also involving a specific limitation on targeting, concerns objects that are indispensable to the survival of the civilian population. Article 54 of the First Additional Protocol states an absolute prohibition against starvation – understood as a method of warfare aimed at annihilating or weakening the civilian population227 – and develops this principle by specifically prohibiting the targeting (attack, destroy, remove or render useless) of objects indispensable to the survival of the civilian population, for the specific purpose of denying their sustenance value.228 Article 54(2) lists the following as falling into the protected category: foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies, and irrigation works. The list is merely illustrative and “it cannot be excluded that as a result of climate or other circumstances, objects such as shelter or clothing must be considered as indispensable to survival.”229 During the negotiation of the Elements of Crimes for the International Criminal Court, delegations agreed that the ordinary meaning of the word “starvation” covered not only the more restrictive meaning of starving as killing by deprivation of water and food, but also the more general meaning of deprivation or insufficient supply of some essential commodity such as medicines and perhaps even blankets if “such blankets were indispensable for survival owing to the very low temperature in a region.”230 This wider interpretation of the term “starvation” also coincides with the notion of “supplies essential to the survival of the civilian population” used in Article 69 of the First Additional Protocol.231

225 GCIV art. 59 requires that all States guarantee the protection of relief supplies intended for occupied territory. This rule is reiterated in API art. 70(4), where it is stated that “[t]he Parties to the conflict shall protect relief consignments and facilitate their rapid distribution.” 226 ICRC Commentary API, supra note 13 at para. 2858. A diversion in the supply of relief is possible under conditions of imperative military necessity on the basis that relief operations must not be allowed to interfere with military operations, lest the safety of humanitarian relief personnel be endangered. These restrictions can only be limited and temporary and in no case may they involve violations of the laws of war. 227 ICRC Commentary API, ibid. at para. 2090. Further on, the Commentary mentions that “an action aimed at causing starvation […] could […] be a crime of genocide if it were undertaken with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, according to the terms of the Genocide Convention (Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, Art. II(c))” (ibid. at para. 2097). The Rome Statute makes it a war crime to intentionally use starvation of civilians as a method of warfare at art. 8(2)(b)(xxv). The prohibition of starvation as a method of warfare is deemed customary in both international and non-international armed conflicts (Rules 53, Customary IHL, Vol. I, supra note 29 at 186). 228 API art. 54(1) and (2). See Rule 54, Customary IHL, Vol. 1, ibid. at 189. 229 ICRC Commentary API, supra note 13 at para. 2103. 230 K. Dörmann, “Preparatory Commission for the International Criminal Court: The Elements of War Crimes – Part II: Other Serious Violations of the Laws and Customs Applicable in International and Non-International Armed Conflicts,” (2001) 83:842 International Review of the Red Cross 461 at 475. 231 API art. 69 establishes the obligation of the Occupying Power to ensure the survival of the civilian population and mentions medical supplies, clothing, bedding and means of shelter as necessary for meeting the basic needs of civilians.

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In order to target an object that is essential to the survival of the population, it is not sufficient to apply the two-pronged test of Article 52(2) as this would not guarantee sufficient protection against civilian casualties. There are only three situations that could justify waiving the prohibition, two of which involve the objects becoming military objectives due to the use that is being made of them by the enemy. The first exception to the rule is the case of supplies of foodstuffs intended for the sole use of the armed forces.232 It is a straightforward case to the extent that the supplies in question have already been taken away from the civilian population and are no longer available for their sustenance. The second exception is the case of the armed forces using an object for a purpose other than the subsistence of their members but in a manner that is in direct support of military action, such as a water tower being used as an observation post.233 Here, an attack against the water tower would be legitimate as long as it did not deprive the local population of access to water in a manner that caused people to starve or forced them to move. Article 54 only prohibits targeting objects indispensable to the survival of the civilian population, for the specific purpose of denying their sustenance value. As such, it is not entirely clear that this second exception is useful since a Party wishing to attack the water tower could always do so by arguing that it did not intend to deny the sustenance value of the water but, rather, that it was seeking to deny the enemy the direct support to military action afforded by the tower. If the targeted object satisfies the definition of a military objective as set out in Article 52(2) and if the precautionary measures and proportionality principle are respected, then the attack will be legitimate. Attacks against power supply installations risk damaging sewerage plants and affecting the supply of water. Could such attacks be prohibited by the rule on objects indispensable to the civilian population? The wording of Article 54(2) indicates that in order to be illegal, the purpose of an attack should be to deny sustenance value to the affected civilian population.234 If the damage caused is incidental and therefore unintended, then it does not appear to fall within this prohibition. What about foreseeable damage? Again, the fact that the provision uses the word ‘purpose’ instead of referring to the effect of an attack seems to suggest that the case of indirect damage hindering the survival of the population, even where such damage is foreseeable, does not fit squarely within the purview of the prohibition contained in Article 54. Whereas the word ‘effect’ is used elsewhere in the First Additional Protocol, such as in the provision concerning indiscriminate attacks,235 it is not used in delineating the scope of the prohibition against attacking objects indispensable to the survival of the civilian population.236 This drafting choice lends support to the conclusion that indirectly affecting the survival of the population by, for example, targeting power supplies does not amount to a violation of Article 54(2). 232 API art. 54(3)(a). 233 API art. 54(3)(b). 234 API art. 54(2) states: “It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population […] for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive” [emphasis added]. 235 API art. 51(4) outlines three situations that amount to an indiscriminate attack. Sub-paragraph (c) speaks of attacks that “employ a method or means of combat the effects of which cannot be limited as required by the Protocol” [emphasis added]. 236 Hampson, supra note 69 at 99.

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The third exception to the rule against targeting objects indispensable to the survival of the civilian population is unrelated to any military use of the objects by the defending Party. This is the case of a Party that is facing invasion or a similar situation of imperative military necessity and decides to resort to a ‘scorched earth’ policy by, for example, destroying its crops. Article 54(5) codifies this exception, requiring that the territory on which such a policy is to be carried out be the national territory of the Party wishing to invoke it and that the affected areas be under the control of the Party in question. It therefore cannot be invoked by an occupying power as it withdraws from occupied territories. Moreover, even on one’s own territory, the ‘scorched earth’ policy is only available to a Party in retreat and cannot be resorted to by a Party “seeking to expel the enemy or reoccupy its own territory.”237 The system set up by Article 54 of the First Additional Protocol is, to say the least, complex and one can question the extent to which its formulation hinders its practical application by field commanders. The spirit of the rule is to prevent the ‘starvation’ of the civilian population. Yet, by effectively limiting the prohibition to blatant cases of wilful denial of sustenance, it fails to capture acts that may amount to starvation, leaving it up to the rules prohibiting indiscriminate attacks and the requirement of precautions in attack to prevent devastating collateral damage. II. Undefended areas and protected zones The laws of war provide for the exclusion of specific areas from the combat zone if they meet certain conditions and their status is known to the enemy, whether by explicit declaration or by negotiation between the Parties to the conflict.238 A. Undefended areas A party to the conflict can exclude certain areas from combat activity in the interest of the civilian population or to preserve important buildings or works of art by unilaterally declaring that the area in question constitutes a non-defended locality. This rule of customary law was codified and clarified in the First Additional Protocol at Article 59. The Protocol defines the term ‘non-defended locality’ as an “inhabited place near or in a zone where armed forces are in contact which is open for occupation by an adverse Party.”239 Indeed, a necessary corollary to the right to declare a zone undefended is that it be ceded to the adversary without resistance.240 Hence, a non-defended locality is most likely established “in the ‘heat of the moment’, i.e., when the fighting comes close and the defence of the particular locality or zone is of no military interest or of relatively minor interest in comparison with the civilian losses which might result from a protracted defence.”241 237 L.C. Green, The Contemporary Law of Armed Conflict, Melland Schill Studies in International Law, 2nd ed., Manchester, Manchester University Press, 2000 at 144. 238 For a good overview of the historical context in which the notions of undefended areas and protected zones have developed and an analysis of the aims and constraints inherent in their establishment, see Y. Sandoz, “The Establishment of Safety Zones for Persons Displaced Within their Country of Origin” in N. Al-Nauimi & R. Meese, eds, International Legal Issues Arising under the United Nations Decade of International Law, The Hague, Martinus Nijhoff, 1995, 899. 239 API art. 59(2). 240 Oeter, supra note 34 at para. 458. 241 ICRC Commentary API, supra note 13 at para. 2262.

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The procedure for establishing undefended areas requires from the declaring side that: (1) all combatants, mobile weapons and mobile military equipment have been evacuated; (2) no hostile use is made of fixed military installations or establishments; (3) no acts of hostility are committed by authorities or by the population; and (4) no activities in support of military operations are undertaken.242 The corresponding obligations incumbent upon the adverse Party are to acknowledge receipt of the declaration and to respect the prohibition against attack for as long as the prerequisite conditions are met.243 It is possible for the Parties to the conflict to establish non-defended localities where the prerequisite conditions are not fully met. In such a case, the ruling conditions will be those agreed upon by the Parties as a sort of voluntary derogation from Article 59(2). According to Article 85(3)(d) of the First Additional Protocol, it is a grave breach to make “non-defended localities and demilitarised zones the object of attack”.244 The Statute of the International Criminal Court makes it a war crime to attack towns, villages, dwellings or buildings that are undefended and which are not military objectives.245 These last words suggest that the Statute is not referring to undefended localities in the sense of Article 59(2) but to civilian locations that are merely undefended and therefore not precluded from qualifying as military objectives because of factors other than the presence of armed forces. That said, it is clear that being undefended is a key consideration in determining whether or not a location effectively contributes to the other side’s military action. B. Protected zones The undefended locality is particular because of the requirement that it be open to occupation and the fact that it can be unilaterally declared without requiring the enemy’s agreement.246 There are other options for shielding an entire area from attack. The notion of protected zones covers three such options. The first is the demilitarised zone, established under Article 60 of the First Additional Protocol, which is generally understood to be an area, agreed upon between the parties to the conflict, that cannot be occupied or used for military purposes. The demilitarised zone can be established in time of peace as well as in time of armed conflict, and its protected status remains in force as long as the conditions of its establishment are respected by both sides.247 Article 60 of the First Additional Protocol follows a similar logic to that of undefended areas in Article 59, with the significant difference that the enumerated conditions under Article 60 are merely indicative of what the parties can include in an agreement, rather than determinative of what constitutes such a zone. While a demilitarised zone may in many ways resemble an undefended locality, an agreement as to its status between the Parties concerned is the indispensable basis of its protection. 242 API art. 59(2). Paragraph 3 specifies that the presence in the non-defended locality of police forces retained for the sole purpose of maintaining law and order does not alter the undefended nature of the area. 243 API art. 59(4). 244 Directing an attack against a non-defended locality is prohibited by a norm of customary international law applicable in both international and non-international armed conflicts (Rule 37, Customary IHL, Vol I, supra note 29 at 122). 245 Rome Statute art. 8(2)(b)(v). 246 An acknowledgement of receipt is required but failure to meet this condition does not alter the status of the locality, API art. 59(4). 247 Directing an attack against a demilitarised zone agreed upon between the parties to the conflict is prohibited by a norm of customary international law applicable in both international and non-international armed conflicts (Rule 36, Customary IHL, Vol I, supra note 29 at 120).

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The second and third type of protected areas are safety zones248 and neutralized zones249. A number of authors have chosen to group the two and refer to them simply as protected zones, which are then distinguished from demilitarized zones and undefended localities. The idea underlying these zones is to provide the parties with a way in which to shelter the wounded and the sick – as well as civilians more broadly – from the effects of conflict. The safety zones can be negotiated prior to the outbreak of hostilities and are meant to be far removed from the combat zone; whereas the neutralized zones are negotiated in the heat of the conflict and intended for areas in which military operations are taking place.250 At times also referred to as protected zones are the safe areas, humanitarian corridors, or safe havens created by the United Nations Security Council under Chapter VI or Chapter VII of the UN Charter.251 The law governing these zones will either stem from an agreement between the parties or, in the case of a determination of a threat to the peace, from a Security Council resolution authorising their creation. Such a resolution will invariably include a mandate that United Nations forces be deployed to ensure that the civilians sheltered do not fall to enemy control.252 This type of intervention on behalf of the international community belongs to the realm of jus ad bellum. That said, if what has been created does in fact amount to a civilian zone, the rules of jus in bello will prohibit the targeting of such zones by virtue of the straightforward prohibition against attacking civilians. In other words, a party to the conflict that chooses to target a safe area created by the United Nations may not only be breaching the law of the United Nations, but also the laws of international armed conflict, assuming the area in question is not being used to make an effective contribution to the military action of the enemy. It is important to make the point that in a case such as the one just evoked, the violation of the jus in bello in no way derives from the international community’s determination that a certain group of civilians are deserving of particular protection. The violation at issue here is not so much of the relevant Security Council resolution as of the rules of war against attacking civilians and civilian objects. Furthermore, a State could contest the creation of a ‘safe area’ on its territory and fail to cooperate with the United Nations forces by, for instance, seeking to take control of the zone without breaching its obligations

248 GCI art. 23 and GCIV art. 14. 249 GCIV art. 15. 250 Directing an attack against a zone established to shelter the wounded, the sick and civilians from the effects of hostilities is prohibited by a norm of customary international law applicable in both international and non-international armed conflicts (Rule 35, Customary IHL, Vol I, supra note 29 at 119). 251 For a good discussion of places of protection authorised by the Security Council, see B.M. Oswald, “The Creation and Control of Places of Protection During United Nations Peace Operations” (2001) 83:844 International Review of the Red Cross 1013. For a clarification of the differences between the various types of zones under the laws of war and a discussion of zones established by the Security Council, see J.-P. Lavoyer, “International Humanitarian Law, Protected Zones and the Use of Force” in W. Biermann and M. Vadset, eds., UN Peacekeeping in Trouble: Lessons Learned from the Former Yugoslavia, Aldershot, England, Ashgate, 1998, 262. 252 It is crucial that forces mandated in this respect be given the means to adapt to the situation on the ground in order to effectively ensure the protection of the zone in all circumstances. In this regard, even where an agreement for the establishment of a protected zone has been reached, the credibility of those adhering to it and their capacity to control its implementation should be seriously evaluated. This is the only way to avoid repeating the type of tragedy that occurred in Srebrenica, in July 1995, when UN forces were unable to stop the brutal killing of thousands of civilians.

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under the laws of war. Where the two legal regimes meet is at the point where failure to respect the protected areas extends beyond a refusal to cooperate and entails acts of violence aimed at the civilian population or causing disproportionate harm to civilians. III. Cultural Property The Preamble to the 1954 Hague Cultural Property Convention states that:

damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world.

Cultural property is protected for what it represents, as a symbol of the collective memory of peoples. In armed conflict, it is protected from incidental damage and, most importantly, it is protected from those who might seek to destroy it in order to harm the population whose identity is tied to its preservation. All too often, destruction is deliberate with damage being inflicted on present generations in order “to orphan future generations and destroy their understanding of who they are and from where they come.”253 The identity-based violence that took place in the former-Yugoslavia in the 1990s extended to cultural property.254 An essential part of the policy of ethnic cleansing included the repeated destruction of educational institutions and places of worship. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia found that destruction and damage of religious or educational institutions was evidence of the crime of persecution.255 In a compelling passage of the Kordic decision, the Chamber wrote:

This act, when perpetrated with the requisite discriminatory intent, amounts to an attack on the very religious identity of a people. As such, it manifests a nearly pure expression of the notion of “crimes against humanity”, for all of humanity is indeed injured by the destruction of a unique religious culture and its concomitant cultural objects. The Trial Chamber therefore finds that the destruction and wilful damage of institutions dedicated to Muslim religion or education, coupled with the requisite discriminatory intent, may amount to an act of persecution.256

The laws of international armed conflict prohibit the targeting of cultural property and provide special protection to objects falling within this category. One of the main challenges of this area of the law is the identification of what constitutes cultural property. Indeed, not only is cultural and spiritual value often established according to subjective criteria, but the relative importance of an object within a given community may change over time or in light of certain 253 H. Abtahi, “The Protection of Cultural Property in Times of Armed Conflict: The Practice of the International Criminal Tribunal for the Former Yugoslavia” (2001) 14 Harvard Human Rights Journal 1at 2. 254 The most extensive attacks to have been perpetrated against cultural property during the 1991-1995 wars in the former-Yugoslavia were those that destroyed the old town of Dubrovnik in Croatia and the Mostar Bridge in Bosnia-Herzegovina. 255 See Blaskic, supra note 48 and ICTY, Prosecutor v. Dario Kordic & Mario Cerkez, IT-95-14/2-T, Judgement, 26 February 2001 [hereinafter Kordic]. 256Kordic, ibid. at para. 207. For an analysis of the relationship between the crime of persecution and damage inflicted to cultural property in the context of the work done by the ICTY, see Abtahi, supra note 253 at 20 ff.

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circumstances. To give an example, a school with little artistic or historic value, which contains no significant collection of books or documents, is unlikely to constitute cultural property. However, if its destruction fits within a systematic campaign of destroying places of education in order to annihilate the possibility for a people to learn its language and history, the school may be deemed to be cultural property because of the function it serves in preserving the identity of a “targeted” community. It becomes immediately apparent that the subjectivity and contextual analysis involved in determining when an object constitutes cultural property affects the ability of the law to be clear and predictable. For this reason, it is imperative to understand the scope of application of existing conventional instruments (A); only then is it possible to identify the targeting rules that have arguably become customary in nature (B). A. Overview of the regimes The most comprehensive regime protecting cultural property was set up in 1954 with the Hague Cultural Property Convention, and complemented in 1999 by the Second Hague Protocol.257 These treaties apply to a particular category of objects that are deemed to be of ‘great importance to the cultural heritage of every people.’258 Within this regime, a line is drawn between a general category of objects and a special category of very important objects that benefit from so-called ‘special’ or ‘enhanced’ protection provided they are marked and registered as such with the appropriate authority.259 As one author explains, the registration of an object is comparable to an internationally recognised declaration establishing a non-defended locality.260 Basically, the holder of the property registers or certifies a commitment

257 Second Protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict , The Hague, 14 May 1954, The Hague, 26 March 1999 [hereinafter 1999 Second Hague Protocol], reprinted in Roberts & Guelff, supra note 3 at 699. 258 For the purpose of both these treaties, the definition of cultural property is found in Article 1 of the 1954 Hague Cultural Property Convention:

“(a) movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest; works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as scientific collections of books or archives or of reproductions of the property defined above;

(b) buildings whose main and effective purpose is to preserve or exhibit the movable cultural property defined in sub-paragraph (a) such as museums, large libraries and depositories of archives, and refuges intended to shelter, in the event of armed conflict, the movable cultural property defined in sub-paragraph (a);

(c) centres containing a large amount of cultural property as defined in sub-paragraphs (a) and (b), to be known as ‘centres containing monuments’.” 259 Under the 1954 Hague Cultural Property Convention, a Party wishing to register property for special protection must address a request to the Director-General of the United Nations Educational, Scientific and Cultural Organization (UNESCO). If the request is granted, the property in question will be included in the ‘International Register of Cultural Property under Special Protection.’ Since 1999, the procedure for registration has changed. The 1999 Second Hague Protocol establishes a Committee for the Protection of Cultural Property in the Event of Armed Conflict, which is responsible for granting, suspending or cancelling enhanced protection for cultural property and which establishes, maintains and promotes the ‘List of Cultural Property under Enhanced Protection.’ 260 J.-M. Henckaerts, “New Rules for the Protection of Cultural Property in Armed Conflict: The Significance of the Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict” 81: 835 International Review of the Red Cross (1999) 593 at 611. For a discussion of the rules pertaining to the declaration of a non-defended locality, see above, Section II. A. Undefended areas.

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not to use the property for military purposes, thereby signalling to potential adversaries that they need to be particularly aware of this fact. The 1999 Second Hague Protocol makes it possible for other Parties to recommend specific cultural property to be included in the registry but, as of yet, no one can impose the registration of an object on an unwilling State.261 A State that wishes to can therefore set about destroying cultural property located within its borders. In light of the universal importance of certain sites and objects, this is an unfortunate gap in the law, which leaves the door open for tragic developments such as the destruction of the Bamiyan Buddhas by the Taliban regime in Afghanistan, in the Spring of 2001.262 The First Additional Protocol sets up what seems to be a separate regime covering three categories of objects: historic monuments, works of art, and places of worship, provided they constitute the cultural or spiritual heritage of ‘peoples’ (i.e. mankind).263 The criterion of spirituality was added in order to cover “objects whose value transcends geographical boundaries, and which are unique in character and are intimately associated with the history and culture of a people.”264 Whereas the scope of the Hague Convention and its Second Protocol extends to property that forms part of the cultural heritage of ‘every people’, the property covered by the First Additional Protocol must be of such importance that it will be recognised by everyone, even without being marked or registered as such. Finally, there are objects that are clearly cultural in nature but that may neither meet the threshold of ‘great importance’ established by the Hague Convention nor, logically, will they fall under the category of property covered by the First Additional Protocol. Not every place of worship or learning institution is protected. It is arguable, however, that in conflicts where religious or ethnic identities are at issue, attacks on objects that are not secular will be viewed with suspicion. The ICTY did not hesitate to classify schools and places of worship as immovable property of great importance to the cultural heritage of peoples, without going to great lengths to justify its decision.265 Is this going too far? Without criticising the Tribunal’s decision, it is worth asking whether adopting too liberal a definition of what constitutes cultural property may have the unfortunate consequence of minimizing the protective regime for objects that have a more widely recognised cultural value. In other words, by widening the category of protected objects, does one not run the risk of diluting the higher level of protection that is provided for by the Hague regime? There is a distinction to be made between the Notre-Dame de Reims Cathedral or the Al-Aqsa Mosque and a majority of other places of worship, and it is imperative that this distinction be reflected in the applicable measures of protection if the rules are to be taken seriously in the heat of an armed conflict.

261 1999 Second Hague Protocol art. 11(3). 262 The two Buddhas were destroyed on the basis that they were offensive to Islam. The earliest of the two statues is thought to have been carved into the sandstone cliffs of Bamiyan in the third century A.D. At 53 meters and 36 meters, the statues were the tallest standing Buddhas in the world. 263 API art. 53. 264 ICRC Commentary API, supra note 13 at para. 2064. 265 In the Kordic decision, the Trial Chamber expressing itself on the nature of educational institutions merely stated that they “are undoubtedly immovable property of great importance to the cultural heritage of peoples in that they are without exception centres of learning, arts, and sciences, with their valuable collections of books and works of arts and science” (supra note 255 at para. 360)

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Once the web of applicable rules is combined with the fact that the relevant instruments neither enjoy universal ratification nor are ratified by the same parties, the task of identifying what rules apply to what object for which party is a challenging one. That said, it is becoming increasingly evident that some rules have become customary in nature and it appears more useful to discuss the question of targeting cultural property in light of these generally accepted rules. B. Rules regulating targeting Customary law derived from the Hague Regulations of 1899 and 1907 dictates that in military operations all necessary steps must be taken to spare cultural property from damage, unless it constitutes a military objective.266 The Statute of the International Criminal Court echoes this rule by branding it a war crime to intentionally direct “attacks against buildings dedicated to religion, education, art, science or charitable purposes, or historic monuments, provided they are not military objectives.”267 In the case of property of great importance to the cultural heritage of every people, the 1954 Hague Convention and the 1999 Second Hague Protocol dictate a prohibition on targeting or using such property for purposes which are likely to expose it to destruction or damage, unless doing so is imperatively required by military necessity.268

i. Criteria for becoming a military objective Like any civilian object, cultural property may become a military objective if it makes an effective contribution to military action because of its nature, location, purpose or use, to repeat the criteria listed in Article 52(2) of the First Additional Protocol. It is arguable that the criteria of ‘nature’ and ‘purpose’ are inapplicable to cultural property.269 Intuitively, a cultural object is civilian in nature. As for the criterion of ‘purpose’, understood to mean ‘intended use’, it appears to be antithetical to a regime of heightened protection where, in any event, imperative military necessity is the threshold for justifying an attack. Even if it were known that a train station of immense artistic and historic value were intended to be used by the enemy as a command centre, it is only actual use that could ever give rise to an attack. ‘Purpose’ is an uneasy criterion at the best of times270 so it is not surprising that it has been rejected as a criterion for determining when an object of cultural value can validly be targeted.

266 Article 56 of the Hague Regulations refers to “institutions dedicated to religion, charity and education, the arts and sciences” and prohibits “destruction or wilful damage done to institutions of this character, historic monuments, works of art and science”. This norm of customary international law is deemed applicable in international and non-international armed conflict (Rule 38 A. and Rule 39, Customary IHL, Vol I, supra note 29 at 127 and 131). 267 Rome Statute art. 8(2)(b)(ix). 268 1954 Hague Cultural Property Convention art. 4 and 1999 Second Hague Protocol art. 6. There are minimal differences between the two regimes in the conditions established for waiving the immunity and they do not change the basic loss of protection that follows from any military use of the property. The differences relate to the level of command at which an attack has to be ordered, the warning to be given and the requirement that a reasonable time be given to the opposing forces to redress the situation. The prohibition against attacking property of great importance to the cultural heritage of every people unless imperatively required by military necessity is deemed to be a norm of customary international law applicable in both international and non-international armed conflict (Rule 38 B., Customary IHL, Vol I, supra note 29 at 127). 269 J.-M. Henckaerts, who followed the negotiation and adoption of the Second Hague Protocol on behalf of the ICRC, notes that there was consensus on this point among the delegations (supra note 260 at 603). 270 See discussion above, Part One, Section II. A. Effective contribution to military action.

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‘Location’ is a somewhat more ambiguous criterion because certain objects form part of infrastructure that, in warfare, must either be seized or destroyed in order to prevent a site from being occupied by the enemy. The example given in the Commentary to the First Additional Protocol is that of a bridge.271 The problem with applying this criterion to cultural property, however, is that some of the most precious constructions forming part of the cultural heritage of mankind are situated in strategically important locations or are themselves sites that can easily be occupied under the pretext that their control makes an effective contribution to military action. There is reason to fear that ‘location’ could be interpreted in an abusive manner and hence greatly diminish the protection afforded cultural property. Moreover, it has been pointed out that it is really the use of the historic bridge – if one takes the example given by the ICRC Commentary – that turns it into a military objective since its attack only becomes imperatively necessary once it is being used by the enemy.272 This concern with the criterion of ‘location’ was expressed during the negotiations that led to the adoption of the Second Hague Protocol and, in the end, a majority of the delegates rejected it as too broad. 273 That said, instead of relying on ‘use’, which some negotiating States felt was too narrow, the drafters introduced a new criterion, that of ‘function’.274 The example that was given to illustrate a situation where ‘use’ would be inadequate was that of retreating soldiers who destroy a cultural wall blocking their retreat despite the fact that it is not used by the enemy. While the example may have some value, it appears rather far fetched and does not seem to justify introducing an entirely new criterion, thereby adding confusion to an area of the law that is already subject to divergent interpretations. As aptly stated by one commentator:

In real life the problem is that cultural property is attacked even when it is not used for any military action or is attacked indiscriminately. In real life the rule should be simple: cultural property which is not used to make an effective contribution to military action and whose destruction, seizure or neutralization does not offer a definite military advantage cannot be attacked. It is difficult to imagine how military commanders could teach their soldiers anything else.275

A further reason to argue that ‘use’ is the customary law criterion that prevails in the legal regime applicable to targeting cultural property is provided by the First Additional Protocol of 1977. Article 53 prohibits the use of cultural property in support of military action. Though the provision does not include a waiver of immunity, it has been interpreted as establishing that it is only in case of use of the protected object ‘in support of the military effort’ that loss of immunity will ensue.276 According to the Commentary, “if protected objects were used in support of the military effort, this would obviously constitute a violation of Article 53 of the 271 ICRC Commentary API, supra note 13 at para. 2021. 272 Henckaerts, supra note 260 at 603. 273 For a critical analysis of the drafting history, see Henckaerts, ibid. at 602ff. 274 1999 Second Hague Protocol art. 6(a)(i): “that cultural property has, by its function, been made into a military objective”. 275 Henckaerts, supra note 260 at 605. 276 Dinstein, supra note 35 at 162.

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Protocol, though it would not necessarily justify attacking them” [emphasis added].277 The Commentary goes on to explain that “it is not permitted to destroy a cultural object whose use does not make any contribution to military action, nor a cultural object which has temporarily served as a refuge for combatants, but is no longer used as such.”278 A contrario, anticipatory measures such as laying detonating charges without exploding them until the targeted object is actually used by the enemy is considered admissible by some authors.279

ii. Precautionary measures Once it is established that an object of cultural property has lost its protection through use and become a military objective, there are conditions that an adversary needs to fulfil before legitimately targeting this object. These conditions are better understood as measures of precaution rather than measures of protection since they apply after the cultural property has become a military objective.280 The 1999 Hague Protocol clarifies these conditions, which it is argued can be used to extract some general rules applicable to the targeting of all property of great importance to the cultural heritage of every people.281 By way of illustration, take the example of a church that is being used to shield combatants. Once this has happened, the Church becomes a military objective through use and is no longer a civilian object deserving of protection. What then ensues for the attacking Party is an obligation to ensure that: (a) the Church is only attacked for as long as it is being utilized by the combatants, i.e. for as long as it is a military objective; (b) there is no feasible alternative to obtain a similar military advantage to that offered by attacking the Church; (c) the imperative military necessity of targeting the Church is established at a certain level of command; and (d) before the Church is attacked and whenever circumstances permit, an effective advance warning has been given to the other Party. These rules should be adapted to take into account the value of the Church in question. For example, if one is dealing with the Church of the Nativity in Bethlehem, which has undeniable value for the cultural and spiritual heritage of mankind, the imperative military necessity of targeting should include a proportionality calculation that takes into account the wider impact of potential destruction.282 In the case of a

277 ICRC Commentary API, supra note 13 at para. 2079. 278 Ibid. 279 Rogers, Law on the Battlefield, supra note 48 at 103. 280 See above, Part Two, Section II. Precautionary measures. 281 1999 Second Hague Protocol art. 6:

“With the goal of ensuring respect for cultural property in accordance with Article 4 of the Convention:

a. […]

b. a waiver on the basis of imperative military necessity […] may only be invoked to use cultural property for purposes which are likely to expose it to destruction or damage when and for as long as no choice is possible between such use of the cultural property and another feasible method for obtaining a similar military advantage;

c. the decision to invoke imperative military necessity shall only be taken by an officer commanding a force the equivalent of a battalion in size or larger, or a force smaller in size where circumstances do not permit otherwise;

d. […] an effective advance warning shall be given whenever circumstances permit.” 282 In 2002, the Israeli Defence Force (IDF) surrounded the Church of the Nativity in Bethlehem after hearing that it had been taken over by Palestinian armed combatants. Apart from some exchanges of fire that caused some

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Church of less artistic or historical value, the requisite threshold for attack might arguably be lower. This type of interpretation would be in line with the international community’s efforts at singling out certain objects deserving of special protection because of their intrinsic value and their overall significance to humanity. IV. Works and installations containing dangerous forces Since the adoption of the 1977 Additional Protocols, a new category of specifically protected objects has been created in an effort to prevent the potentially catastrophic and uncontrollable effects that their targeting would entail for the civilian population and the natural environment. These objects have been labelled “works and installations containing dangerous forces”. Article 56 of the First Additional Protocol is the result of protracted negotiations and its length and somewhat ambiguous language attests to the difficulty in achieving consensus on its scope of application.283 As a result, there are only two categories of works and installations to which the provision refers: (a) dams and dykes, and (b) nuclear electric generating stations.284 A further limitation on the prohibition is that it attaches only to attacks that cause the release of dangerous forces that may result in severe losses among the civilian population.285 In the case of “objects indispensable to the survival of the civilian population”, discussed above,286 the prohibition extends to destroying, removing or rendering useless the specially protected objects.287 Here, however, the only acts that are prohibited are those that cause “severe losses among the civilian population.”288 In other words, there is no rule against destroying dams, dykes or nuclear electric generating stations; rather, there is a rebuttable presumption of knowledge that an attack will cause severe damage to the civilian population. The attacking Party can escape responsibility if the prohibited harm does not ensue. The rationale for the rule prohibiting attacks on works and installations containing dangerous forces and attacks of military objectives in the vicinity of such objects is to restrict collateral damage. Because attacks of this nature entail an undeniable risk of high casualties, it is

minor damage to the Church, none of the tactics used by the Israelis involved direct attacks against the site. The Church had become a military objective through use, but its importance to the Christian world was such that a more forceful stance on the part of the IDF would have been disproportionate to the threat represented by the gunmen and the risk of causing permanent damage to the site. 283 Paragraph 6 explicitly recognises the limited reach of the provision by urging the Parties to the conflict to conclude further agreements to provide additional protection for objects containing dangerous forces. 284 At the Diplomatic Conference leading to the adoption of the First Additional Protocol, no agreement could be reached regarding the inclusion of other works and installations containing dangerous forces in the list, such as factories manufacturing toxic products and oil production installations or storage facilities for oil products (ICRC Commentary API, supra note 13 at paras 2148-2149). 285 API art. 56(1). The provision uses the word “may” rather than “likely to” in order to raise the standard of care to situations where the release of dangerous forces is objectively foreseeable rather than probable (W.A. Solf, “Article 56” in Bothe et al., supra note 29 at 353 para. 2.5.2.). 286 See above, Section I. B. Humanitarian relief and the survival of the population. 287 API art. 54(2). 288 The ICRC Commentary describes “severe” as equivalent to “important” or “heavy”, noting that the concept requires good faith interpretation “on the basis of objective elements such as the proximity of inhabited areas, the density of population, the lie of the land, etc.” (ICRC Commentary API, supra note 13 at para. 2154). In his commentary, W.A. Solf, describes “severe” as “an absolute standard rather than the relational standard set by the rule of proportionality” and go on to speak of “massive civilian losses” (“Article 56” in Bothe et al., supra note 29 at 353 para. 2.5.3.).

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unreasonable to think that the normal precautionary measures will suffice. It is also arguable that deliberately accepting such a level of risk will in many cases qualify as a blatant violation of the prohibition against indiscriminate attacks.289 Some authors argue that the ‘worst case’ scenario codified in Article 56 is an adequate reflection of reality since, practically speaking, situations where military considerations will justify creating a massive risk for the civilian population are rare.290 Among them, one author has written that Article 56 is “a specific application of the proportionality principle”291 and that “military considerations are amply taken care of in this article.”292 Those who disagree argue that Article 56 supplants the proportionality principle by closing the door to attacks entailing large-scale civilian losses that are not excessive in comparison to the military advantage expected.293 For these latter critics, the provision on works and installations containing dangerous forces is objectionable because it makes no allowance for the extreme circumstance that might render severe collateral damage proportionate. This reluctance to endorse Article 56 on the theory that there can be no ceiling on acceptable collateral damage appears somewhat disconnected from the reality of chemical, biological and nuclear disasters. In fact, one could argue that the risk to the civilian population posed by attacks against works and installations containing dangerous forces is so high that such attacks should be absolutely prohibited, just as the use of chemical and biological weapons is prohibited. A. Loss of protection Like any other civilian objects, dams, dykes and nuclear generating stations lose their protection once they become military objectives. However, it is not enough that their function contributes to military activities for them to be legitimately targeted. Works and installations containing dangerous forces, as well as any military objectives in their vicinity, must be used in ‘regular, significant and direct support of military operations’ and attacking them must be ‘the only feasible way to terminate such support.’294 These requirements go beyond the definition of military objective at Article 52(2) of the First Additional Protocol by combining a threshold of support that is higher than ‘effective contribution’ with a condition that is reminiscent of ‘imperative military necessity’: there must be no other way to put an end to the contribution the object is making to the adversary’s military operations. What’s more, in the specific case of dams and dykes,295 they must be used outside their normal function, i.e. outside “the function of holding back, or being ready to hold back, water”.296

289 Oeter, supra note 34 at para. 464.2. 290 See, inter alia, Green, supra note 237 at 158; Oeter, ibid. at para. 464. 291 L. Doswald-Beck, “The Value of the 1977 Geneva Protocols for the Protection of Civilians” in M.A. Meyer, ed., Armed Conflict and the New Law, Aspects of the 1977 Geneva Protocols and the 1981 Weapons Convention, Vol. 1, London, British Institute of International and Comparative Law, 1989, 137 at 158. 292 Ibid. at 159. 293 It was for this reason that the United States expressly rejected Article 56 as “militarily unacceptable” at the time it decided not to become a Party to the First Additional Protocol, see Annotated Supplement, supra note 14, Chapter 8: The Law of Targeting at para. 8.1.2 and note 14. See also Dinstein, supra note 35 at 174 note 254. 294 API art. 56(2). 295 API art. 56(2)(a). 296 Kalshoven & Zegveld, Constraints on the Waging of War, supra note 14 at 97, citing the report on Conference negotiations; see also, ICRC Commentary API, supra note 13 at para. 2161.

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While in some instances, it may be possible for a potential attacker to assess the legitimacy of targeting a dam or a dyke because the military appropriation of such facilities by the enemy will be obvious, this is not often the case and even less so when it comes to nuclear power plants. Nuclear electrical generating stations are generally the core source of energy for entire electricity supply networks. Determining the nature and extent of the support provided to the military by this type of facility requires sophisticated intelligence and is bound to be difficult to ascertain with precision. Even if one were to accept the wider interpretation that considers, for example, the provision of electricity to factories producing armaments, ammunition and military equipment as support to military operations, Article 56 demands that an attack be “the only feasible way to terminate such support”. In other words, there must be no feasible alternative such as “destroying the essential installations of the distribution network (transformer stations, or main circuit lines).” 297 If the protection of a work or an installation containing dangerous forces ceases, the civilian population continues to be entitled to the protection accorded them by international law; in case of attack, all practical precautions shall be taken – by all Parties – to avoid the release of the forces.298 B. Defensive allowance Paragraph 5 of Article 56 obliges Parties to endeavour to avoid placing military objectives in the vicinity of dams, dykes and nuclear electrical generating stations. In recognition of the importance of such objects and the fact that even in peace time they are often already protected in some manner against sabotage, the paragraph goes on to allow a defensive military presence at the site. Personnel and equipment deployed for this purpose are not to be targeted as long as the armament used “is limited to weapons capable of repelling hostile action against the protected works or installations”299. The ICRC Commentary recognises that “[i]f the works or installations are located within the combat area, the military guard and the anti-aircraft artillery protecting them will of course be part and parcel of the total military system, and it will be difficult to make a clear distinction between military deployments designed to defend the works and installations and other troops fighting in the area.”300 This is primarily a matter for the defending Party to address since it has the responsibility to keep this special deployment separate from its regular armed forces. If it fails to do so or if the defensive equipment is used to defend the installation against capture by enemy forces, it will be difficult to blame the attacker for any resulting casualties. The defensive personnel may be shielded from attack when they are fulfilling their intended task but they remain men in uniforms bearing and/or operating weapons. Hence, it is surprising to find the argument being made that a Party carrying out an attack against a work or installation containing dangerous forces which has lost its protection, faces the unfair burden of having to avoid damaging the defensive apparatus.301 Indeed, it seems that once a

297 Oeter, supra note 34 at para. 465.2. See also, ICRC Commentary API, ibid. at para. 2166: “It may be added that in the case of nuclear electrical generating stations it is relatively easy to stop electricity reaching its destination by attacking the electricity lines. In this way the desired result is achieved without the risk of releasing dangerous forces.” 298 API art. 56(3). 299 API art. 56 (5) 300 ICRC Commentary API, supra note 13 at para. 2176. 301 See Hays Parks, “Air War and the Law of War”, supra note 10 at 213. By way of example the author posits the following: “Assume the attack is launched, and the American special operations force is defeated and captured

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facility is being used in “regular, significant and direct support of military operations” and attacking it “is the only feasible way to terminate such support”, it is not only the dam, dyke or nuclear electrical generating station that has lost its protection but the defensive personnel and equipment as well.302 As was stated at the outset of this section, the special regime applicable to dams, dykes and nuclear electrical generating stations is novel and, as such, it is only opposable to States having ratified the First Additional Protocol. Underlying Article 56, however, are rules of customary international law that are opposable to all, namely the prohibition against indiscriminate attacks303 and the duty to take all feasible precautions to avoid excessive civilian losses in attack304. There is arguably a more tailored customary norm emerging, according to which a Party who chooses to target an object containing dangerous forces,305 or any military objective located in the vicinity of such an object, must take particular care to avoid the release of dangerous forces.306 The standard of care is aimed at avoiding severe losses among the civilian population and it can be said to involve the following duties: (a) to ensure that the decision to attack is indispensable; and (b) to take all necessary precautions, which includes ensuring that the decision is taken at a high level of command. These rules are without prejudice to the application of general international law where the release of dangerous forces may affect States not involved in the hostilities and entail the international responsibility of the attacking Party.

after performing gallantly. In the course of battle, a number of soldiers in the defending force are killed or wounded. Could the captured American soldiers be charged with a violation of the law of war, to wit, paragraph 5 of article 56? The answer rather conclusively is yes” [emphasis added]. On can read into the use of the adjective ‘gallantly’ that the decision to target the facility was initially justified. If the author was intending to refer to an attack that did not satisfy the criteria for loss of protection as codified in paragraph 2 of Article 56, then it is difficult to entertain his criticism of paragraph 5, which should only be read in light of the entire provision. 302 Another criticism of paragraph 5 formulated by W. Hays Parks concerns the potential for abusive behaviour on the part of the defending Party. The case that he describes involves a defender employing a sophisticated, integrated air defence system to protect principal industrial and military areas. Because of the presence of a single protected facility in one such area, the defending Party believes it is warranted in firing upon enemy aircrafts approaching any target within the area, leaving the attacker with no right to retaliate since the defensive installation is protected (ibid. at 213-214). Without dismissing the fact that allowing defensive installations to protect works and installations containing dangerous forces may, in some cases, lead to abusive behaviour, this potential should not serve to discredit Article 56(5). Much will turn on the circumstances ruling at the time and, as such, it might be useful to test the facts against the exact wording of the provision: when does the level of defensive protection fail to meet the requirement of being “capable only of repelling hostile action against the protected works or installations”? When is an action “necessary to respond to attacks”? 303 API art. 51. 304 API art. 57(2)(a)(iii). 305 This includes any works or installations containing dangerous forces, such as chemical plants and petroleum refineries. 306 See the practice of the United Kingdom in the 1990-1991 Gulf War and the practice of the United States in the Vietnam War, following which both States justified their attacks as having been carried out with the greatest care possible. Also relevant is the statement made by the United Kingdom, in its reservation to API art. 56, in which it commits to “take all due precautions in military operations at or near the installations […] in the light of the known facts, including any special marking which the installation may carry, to avoid severe collateral losses among the civilian populations; direct attacks on such installations will be launched only on authorisation at a high level of command” (see ICRC IHL Database, available online: United Kingdom <http://www.icrc.org/ihl.nsf/WebPAYS?OpenView>). See also Rule 42, Customary IHL, Vol. I, supra note 29 at 139.

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Even though a more unequivocal ban against targeting works and installations containing dangerous forces is desirable from a humanitarian perspective, it is unrealistic to petition for a blanket prohibition. The importance of electrical power for command, control, communications and air defence systems of modern military machines means that hydro-electric facilities as well as nuclear electrical generating systems will continue to be key military objectives. The focus of the laws of armed conflict should therefore be on bolstering the requirement that precautionary measures be respected. This places the States with the most sophisticated military might at an advantage to the extent that they are the ones who have the know-how and the technology to carry out attacks against works and installations containing dangerous forces without causing severe civilian casualties. Such an advantage comes at a price: this is the price of having to employ means and methods that are costly and perhaps even of having to commit to restoring the capacity of a destroyed facility at the end of hostilities in order to limit the damage to the civilian population and the environment, in time and in space.307 Article 56 of the First Additional Protocol has the merit of focusing the attention of belligerents on the immense harm that can be caused by attacks against certain works and installations. Unfortunately, it is somewhat arbitrarily limited in its scope of application, it is not adhered to by the United States among others, and it continues to be the subject of important reservations by some of the leading military powers. This suggests that future negotiations regarding the protection of this category of objects should emphasize ways in which to exclude long-term damage and mechanisms for ensuring accountability for such damage, as well as address the modalities of the special protection. V. Natural environment In times of armed conflicts, it is challenging to hold belligerents to their peacetime obligations toward the environment despite circumstances that call for heightened care. The laws of war have a limited ability to fill the gap left by warring Parties if only because the scientific reality of environmental damage is vastly complex and not easily translated into language that can be clearly and readily applied to the battlefield. The consequences of behaviour that is harmful to the environment can often only be measured over a long period of time, making it all the more difficult to establish what was foreseeable at the time of an attack. Yet, at a basic level, the severe damage or destruction of a natural area – regardless of the time or space needed to assess the extent of the harm – hampers the implementation of elementary measures protecting victims of warfare (the wounded, the sick, prisoners of war and civilians).308 In an often quoted passage of the 1996 Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons, the International Court of Justice confirmed this inextricable link between human beings and the natural environment when it wrote: “the environment is not an

307 During the 1990-1991 Persian Gulf War, the Coalition forces adopted “a policy of attacking switching stations rather than generating stations, to enable repair of the electricity system after the war.” (Rogers, Law on the Battlefield, supra note 48 at 45). Two Iraqi nuclear power stations were attacked during the course of the Gulf War hostilities with no direct collateral casualties ensuing because the attacking forces successfully prevented radiation from escaping. (Greenwood, “Customary International Law and the First Geneva Protocol of 1977 in the Gulf Conflict”, supra note 145 at 82). 308 A. Bouvier, “Protection of the Natural Environment in Time of Armed Conflict” (1991) No. 285 International Review of the Red Cross 567 at 570.

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abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn.”309 Much has been done in the past thirty years to ensure that the environment receives special protection in times of armed conflict and to avert catastrophes of the type witnessed in Vietnam and in Kuwait.310 Since the 1970s, the natural environment benefits from direct protection through international treaties that specifically address the question of the environment in wartime. Though the resulting legal regime focuses primarily on protecting the environment as a means of protecting persons, it also now encapsulates the notion that preserving the environment is an end in itself.311 Moreover, there is extensive State practice indicating the need to protect the environment during armed conflict, which is expressed in terms that are not limited to the specific prohibitions contained in the laws of war.312 An ongoing debate exists as to the extent to which the wide variety of treaties that deal with the protection of the environment in times of peace apply during armed conflicts.313 In its Advisory Opinion in the Nuclear Weapons case, the International Court of Justice avoided addressing the issue directly, stating the following instead:

existing international law relating to the protection and safeguarding of the environment […] indicates important environmental factors that are properly

309 Nuclear Weapons Advisory Opinion, supra note 25 at 241 para. 29. 310 During the Vietnam War, the United States used defoliants to remove vegetation and expose enemy positions in heavily forested areas. Tests were also carried out on rain seeding in an attempt to trigger downpours to impede and bog down enemy movements on the supply routes. More recently, during the 1990-1991 Persian Gulf War, Iraqi troops deliberately sabotaged oil installations, severely polluting the desert and the waters of the Gulf region. 311 In its interpretation of API article 35(3), the ICRC summarizes this broad approach to the protection of the environment in the following terms: “Thus this is a matter not only of protecting the natural environment against the use of weapons or techniques deliberately directed against it, nor merely of protecting the population and the combatants of the countries at war against any of these effects, but also one of protecting the natural environment itself, taking into account the inevitable overflow effect inherent in these incidents and the resulting ‘transnational’ aspect of this problem.” (ICRC Commentary API, supra note 13 at para. 1441). 312 See inter alia, Principles 5 and 20 of the World Charter for Nature (reprinted in (1983) 22:2 International Legal Materials 455); Principle 24 of the Rio Declaration on Environment and Development (annexed to Report of the United Nations Conference on Environment and Development of 12 August 1992, UN Doc. A/CONF.151/26 (Vol. I), reprinted in (1992) 31:4 International Legal Materials 874 at 880); Article 11 of the ICRC compiled Guidelines for military manuals and instructions on the protection of the environment in times of armed conflict (annexed to United Nations Decade of International Law: Report of the Secretary-General of 19 August 1994, UN Doc. A/49/323); paragraphs 35 and 44 of the San Remo Manual on International Law Applicable to Armed Conflicts at Sea (L. Doswald-Beck, ed., Cambridge, Cambridge University Press, 1995 [hereinafter San Remo Manual], reprinted in Roberts & Guelff, supra note 3 at 573). 313 The ICRC contends that in addition to the rules of law pertaining to warfare, general peacetime provisions on the protection of the environment may continue to be applicable. This position was codified in Article 5 of the Guidelines for military manuals and instructions on the protection of the environment in times of armed conflict: “International environmental agreements and relevant rules of customary law may continue to be applicable in times of armed conflict to the extent that they are not inconsistent with the applicable law of armed conflict” (ibid.). In 1994, the United Nations General Assembly adopted a Resolution by consensus, which invited all States to “disseminate [the Guidelines] widely” and to “give due consideration to the possibility of incorporating them into (...) [the] instructions addressed to their military personnel” (United Nations Decade of International Law, UN Doc. A/RES/49/50 of 17 February 1995, paragraph 11).

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to be taken into account in the context of the implementation of the principles and rules of the law applicable in armed conflict.314

Setting aside the obligations that States might have toward the environment in times of peace, what is therefore left is a general rule, which states that in the context of armed conflict, Parties must “take environmental considerations into account”. What exactly does this entail? In the context of the legal regime applicable to targeting, “taking environmental considerations into account” means avoiding causing unnecessary damage to the environment as well as damage that breaches the proportionality rule. In other words, a decision to target a military objective is expected to include an evaluation of potential harm to the environment qua environment – even if no civilians are in danger of being hurt – and a planned attack “may have to be called off if the harm to the environment is expected to be excessive in relation to the military advantage anticipated.”315 The Rome Statute attaches individual criminal responsibility to attacks that are intentionally launched in the knowledge that they will cause widespread, long-term and severe damage to the natural environment, which would be clearly excessive in relation to concrete and direct overall military advantage anticipated.316 The problem, of course, is that the proportionality rule does not indicate what kind of environmental damage will be considered ‘excessive’ or ‘clearly excessive’, for that matter. In a – cautious – effort to circumscribe the standard, the Final Report of the ICTY Review Committee, states the following:

[I]n order to satisfy the requirement of proportionality, attacks against military targets which are known or can reasonably be assumed to cause grave environmental harm may need to confer a very substantial military advantage in order to be considered legitimate. At a minimum, actions resulting in massive environmental destruction, especially where they do not serve a clear and important military purpose, would be questionable [emphasis added].317

The principle of proportionality also applies to direct attacks against parts of the environment that have become military objectives. While it may be counterintuitive to think that the environment itself can, in certain circumstances, become a valid military objective, the possibility exists, as evidenced by Article 2(4) of the Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons, which reads:

It is prohibited to make forests or other kinds of plant cover the object of attack by incendiary weapons except when such natural elements are used to

314 Nuclear Weapons Advisory Opinion, supra note 25 at 242 para. 33. 315 Dinstein, supra note 35 at 177. See also, L. Doswald-Beck, “International Humanitarian Law and the Advisory Opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons” (1997) No. 316 International Review of the Red Cross 35 at 52. 316 Rome Statute art. 8(2)(b)(iv). The use of the word ‘clearly’ combined with the requirement that the attacking Party have the intention to cause harm, ensures that criminal responsibility only ensues where the excessiveness of the damage to the environment is both willed and obvious (W.J. Fenrick, “Article 8(2)(b)(iv)” in O. Triffterer, ed., Commentary on the Rome Statute of the International Court: Observer’s Notes, Article by Article, Nomos Verlagsgesellschaft, Baden-Baden, 1999, 197). 317 ICTY Final Report, supra note 31 at para. 22. The Report goes on to say that the “targeting by NATO of Serbian petro-chemical industries may well have served a clear and important military purpose.”

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cover, conceal or camouflage combatants or other military objectives, or are themselves military objectives [emphasis added].318

The customary rules and principles that treat the natural environment as a ‘civilian object’ and prevent belligerents from causing it disproportionate damage are supplemented by environment-specific treaty law. The two most notable texts in this respect are the 1977 First Additional Protocol to the Geneva Conventions and the 1976 Convention on the Prohibition of Military and any other Hostile Use of Environmental Modification Techniques319. The first establishes an absolute ceiling beyond which environmental damage is unacceptable, regardless of proportionality calculations and arguments of military necessity (A), while the second set out rules prohibiting the use of the environment as a weapon (B). A. Widespread, severe and long-term damage Once a part of the natural environment has become a military objective or a decision has been made to target a military objective in a manner or with a weapon that will impact the natural environment, whatever damage is inflicted must not be widespread, severe and long-term. This rule, codified in Article 35(3) and Article 55(1) of the First Additional Protocol, cannot be waived for reasons of military necessity or arguments invoking proportional collateral damage.320 Much like the prohibition against targeting works and installations containing dangerous forces that would cause severe losses among the civilian population, the rule against causing damage to the environment is concerned with the potential for incalculable harm that extends beyond the borders of a particular State. But as was discussed above in the section dealing with such objects, the military contribution of many works and installations makes them ineligible for absolute protection.321 That said, in an extreme case of environmental catastrophe caused by an attack against a chemical plant or a dam, the rules protecting the natural environment may partly compensate for what is not captured by Article 56 of the First Additional Protocol. While some commentators allege that the underlying norm contained in these provisions has achieved the status of customary international law, this view still appears contentious.322

318 Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (1980 Protocol III), 10 October 1980, reprinted in Roberts & Guelff, supra note 3 at 533. 319 United Nations Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, 2 September 1976 [hereinafter ENMOD Convention], reprinted in Roberts & Guelff, ibid. at 407. 320 API art. 35(3): “It is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.” API art. 55(1): “Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. This protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby prejudice the health or survival of the population.” 321 See above, Section IV. Works and installations containing dangerous forces. 322 Writing in the early 1990s, G.H. Aldrich states: “While these provisions of Articles 35 and 55 are clearly new law […] I would not be surprised to see them quickly accepted as part of customary international law insofar as non-nuclear warfare is concerned” (“Prospects for United States Ratification of Additional Protocol I to the 1949 Geneva Conventions” 85 American Journal of International Law (1991) 1 at 14.) See also, W.A. Solf, “Protection of Civilians Against the Effects of Hostilities Under Customary International Law and Under Protocol I” (1986) 1 The American University Journal of International Law and Policy 117 at 134: “Although

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Nevertheless, if one looks at the States that oppose the customary nature of the norm, namely France, the United Kingdom and the United States, one finds that these States generally accept the rule provided that it applies to conventional weapons and not to nuclear weapons. This may explain why the International Court of Justice, in the context of its pronouncement on the legality of nuclear weapons, chose not to conclude that the provisions of the First Additional Protocol relating to the natural environment were applicable to non-signatory States.323 The terms ‘widespread, severe and long-term’ are nowhere defined. The only specification that was given by the drafters of the First Additional Protocol was that ‘long-term’ damage would need to be measured in years rather than months. Once the requirement that the damage last for a period of decades is combined with the fact that the three factors are cumulative, i.e. environmental damage that is widespread and long-term but not considered severe is permissible, the threshold of application of the environmental provisions in the First Additional Protocol is high. The laws of war recognise that damage to the environment during warfare is unfortunately inevitable and, therefore, what is prohibited is targeting that will foreseeably result in damage over a large area lasting for decades. This goes beyond normal battlefield damage caused by conventional warfare,324 and is without prejudice to the application of the rules of general international law in cases where the damage affects States other than those engaged in hostilities. Article 55(1) differs from Article 35(3) in two respects. First, it includes a sentence requiring that Parties to a conflict take care to protect the natural environment from damage. Second, it specifies that the widespread, severe and long-term damage that is prohibited is one that prejudices the “health and survival of the population”. The explanation for the difference comes in great part from the different purpose that each provision serves. Article 35(3) illustrates the principle of ‘limited warfare’ and therefore approaches the protection of the environment from the perspective of unnecessary injury, including transnational damage. Article 55 is featured in a Chapter of the First Additional Protocol entitled ‘Civilian Objects’, which puts the reference to human health and survival in context, and articulates “a prescriptive standard measured by impact on human beings.”325 It is interesting to note that the word ‘civilian’ does not appear in the provision. This omission was deliberate with a view to emphasizing the fact that damage caused to the environment and lasting for decades will affect the whole population – combatants, civilians, born and unborn – without any distinction.326

the formulation is new, and the protections granted by Protocol I are greater, this prohibition is so basic that it must be construed as being inherent to a general principle of law and thus, general international law.” For a contrary view, see Dinstein, supra note 35 at 185. For a mitigated view, see ICTY Final Report, supra note 31 at 492 para. 15: “Neither the USA nor France has ratified Additional Protocol I. Article 55 may, nevertheless, reflect customary law”. 323 In referring to the obligations contained in articles 35 and 55, the Court states: “These are powerful constraints for all the States having subscribed to these provisions” (Nuclear Weapons Advisory Opinion, supra note 25 at 242 para. 31, emphasis added). 324 ICRC Commentary API, supra note 13 at para. 1454. 325 Richards & Schmitt, supra note 210 at 1063. 326 ICRC Commentary API, supra note 13 at para. 2134.

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Another reason for what some may perceive as a discrepancy between Article 35(3) and Article 55(1) is ascribed to divergent views among the framers of the First Additional Protocol. There appears to have been some disagreement over whether the protection of the environment in armed conflict is an end in itself or whether the protection is only designed to guarantee the survival or health of human beings.327 In the end, a workable comprise was achieved: by explicitly referring to the health or survival of the population, Article 55(1) gives pre-eminence to this concern without reducing its scope of application to environmental damage that will prejudice the population. For instance, if a part of the natural environment located in an area with little or no civilian population becomes a military objective, Article 35(3) might stand in the way of it being targeted where the foreseeable damage is widespread, severe and long-lasting. The texts do not indicate which provision sets the standard for which situation. This ambiguity combined with the lack of agreement surrounding the normative meaning of the words ‘widespread’, ‘severe’ and ‘long-term’ opens the door to confusion, interpretative variances and inconsistency of application, which raises the question of the extent to which the provisions of the First Additional Protocol can be applied in practice.328 B. Using the environment as a weapon Making military or any other hostile use of environmental modification techniques329 having widespread, long lasting or severe effects on the environment is prohibited.330 This rule against using the environment as a weapon was first codified in 1977, in the ENMOD Convention, a treaty that was drawn up by the Conference of the Committee on Disarmament (CCD) and adopted by the UN General Assembly. The motivation for drafting a treaty that would prohibit geophysical warfare came from the experience of war in Vietnam where defoliants were used by the Americans with severe consequences on large parts of the Vietnamese landscape as well as on the population. In submitting the text of the treaty to the General Assembly, the CCD transmitted a set of understandings relating to some of the provisions in the Convention. The first of these understandings set forth an interpretation of the expression widespread, long lasting or severe and, in doing so, specified that its interpretation was “not intended to prejudice the interpretation of the same or similar terms if used in connexion with any other international agreement”.331 This point was made in light of the virtually identical words used in the First

327 Dinstein, supra note 35 at 182; W.A. Solf, “Article 55” in Bothe et al., supra note 29 at 345 para. 2.1.3, cites the following excerpt from the records of the Conference: “Some delegates were of the view that the protection of the environment in time of war is an end in itself, while others considered that the protection of the environment has as its purpose the continued survival of the civilian population… The first approach points toward the inclusion of a provision on the environment in Article [35] which already contains provisions with respect to… certain methods and means of warfare. The second looks to the inclusion of an article in Chapter III of Part IV dealing with protection of civilian objects.” 328 The U.S. opposes Article 55 on the ground that it is too broad and too ambiguous for effective use in military operations, see M.J. Matheson, “The United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions” (1987) 2:2 The American University Journal of International Law and Policy 419 at 424. 329 “[A]ny technique for changing – through the deliberate manipulation of natural processes – the dynamics, composition or structure of the Earth, including its biota, lithosphere, hydrosphere and atmosphere, or of outer space” (ENMOD Convention art. 2). 330 See Rule 45, Customary IHL, Vol. I, supra note 29 at 151. 331 Reprinted in Roberts & Guelff, supra note 3 at 407.

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Additional Protocol and the importance of distinguishing the purpose of both instruments: while the Protocol is concerned with damage to the environment, the ENMOD Convention is concerned with destruction, damage or injury to any other State Party. The threshold of application of the latter instrument is lower with the disjunctive ‘or’ separating the three adjectives that qualify the nature of the effects. Moreover, according to the CCD, ‘long lasting’ refers to damage lasting for a period of several months, or approximately a season, which is a considerably shorter period of time than what is provided for by the First Additional Protocol. The conduct prohibited by the ENMOD Convention must (a) be intentional, which means that mere collateral damage resulting from an attack against a military objective is not included; and (b) cause destruction, damage or injury to another State Party to the Convention. Arguably, both of these requirements illustrate the narrow scope of application of this treaty relative to the legal regime set up by Article 35(3) and Article 55(1) of the First Additional Protocol.332 For the purpose of this study, it is sufficient to note that irrespective of whether the provisions of the ENMOD Convention have achieved the status of customary international law, the general rule that prohibits the deliberate infliction of severe destruction to the environment will capture the most severe damage that the Convention seeks to prevent. If a Party to a conflict uses the environment as an instrument of war and thereby causes damage that is sufficiently widespread, severe and long-term, it seems unlikely that the damage in question will not extend to the environment itself. Furthermore, as mentioned above, there are other provisions in the First Additional Protocol that may cover the damaging conduct. For instance, if a Party not having ratified the ENMOD Convention decided to modify the weather so as to cause a widespread and severe drought that lasted a season, Article 55(1) could not be invoked because the damage is not long-lasting enough but Article 54, which prohibits the targeting of objects indispensable to the survival of the population, might be applicable. The 1990-1991 Persian Gulf War was the theatre of considerable oil-related environmental damage. It was also the occasion to reflect on the extent to which the current legal regime is sufficient to prevent significant environmental harm. While attacks against oil installations were perpetrated by both sides, Iraq’s actions were notable both in their scope333 and in their vindictive nature334. At the time of the war, Iraq was neither a Party to the First Additional

332 For a good summary of the conditions of application that need to be met under the ENMOD Convention, see Dinstein, supra note 35 at 178-181. 333 Between seven and nine million barrels of oil were intentionally released into the Gulf; five hundred and ninety oil well heads in Kuwait were deliberately damaged or destroyed; five hundred and eight were set on fire, and eighty-two were damaged so that oil was flowing freely from them (figures taken from Annotated Supplement, supra note 14, Chapter 8: The Law of Targeting at para. 8.1.3 and note 21). 334 “In the days leading up to the Iraqi invasion of Kuwait, Saddam Hussein chaired a joint meeting of the Iraqi Revolution Command Council and regional command of the Arab Socialist Baath Party which a issued a statement that ‘[t]he oil areas in Saudi Arabia and in other parts of the states of the region and all the oil installations will be rendered incapable of responding to the needs of those who came to us as occupiers in order to usurp our sovereignty, dignity and wealth’.” (Partial Text of Statement by Iraq’s Revolution Command Council, Reuter Library Report, September 23, 1990, quoted in Richards & Schmitt, supra note 210 at 1055 note 32).

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Protocol nor to the ENMOD Convention, so the obligations it breached in setting fire to the Kuwaiti oil wells, thereby causing heavy atmospheric pollution in the region, had to be evaluated in light of customary international law.335 Like other civilian objects, oil wells may be considered military objectives and their destruction must respect the proportionality rule, as embedded in the requirement of taking all feasible precautions in attack. If Iraq’s actions were indeed motivated by a desire to inflict wanton destruction, it is pointless to assess the proportionality of the damage. It is enough to invoke the customary rule that “destruction of the environment, not justified by military necessity and carried out wantonly, is clearly contrary to existing international law.”336 Had the environment-specific provisions been applicable in the Persian Gulf War, it is arguable that the damage inflicted would not have met the threshold of ‘long-term’ established in the First Additional Protocol despite it having been without a doubt ‘widespread’ and ‘severe’. As for the ENMOD Convention, its applicability would have depended on the extent to which Iraq’s sabotage of the well-heads, which affected the natural pressure of the crude oil underground and caused changes in the weather pattern in Kuwait, qualified as manipulations of natural forces.337 On balance, it seems rather unlikely that either treaty would have captured the harm done to the environment in the Gulf region. VI. Objects involved in peacekeeping operations One of the new realities of conflict zones today is the presence of large numbers of civilian, police and military actors involved in United Nations operations. Whereas just over a decade ago, peacekeeping was mostly about the military observance of ceasefire agreements and force separation after interstate wars, the picture has evolved rapidly to include: disarming, demobilizing and reintegrating combatants; ensuring the safe return of refugees and internally displaced persons; supporting civil society; monitoring human rights; supervising elections; restoring law and order; as well as administering territories. Clearly, some of these new tasks are better described as ‘peace making’, ‘peace building’ or even ‘state building’ activities, but the current trend in the United Nations is to use ‘peacekeeping’ as an umbrella concept that encompasses an integrated continuum of activities from the early stages of preventive diplomacy all the way to post-conflict peace building. When a situation of armed conflict develops, the laws of war prohibit the targeting of military personnel and objects involved in a peacekeeping mission because they are presumed to be civilians and civilian objects. Because it may seem counterintuitive to treat men and women in uniforms as civilians, this rule requires the clarification of what is meant by ‘peacekeeping mission’ (A) and what actions qualify for loss of protection (B).

335 The damage to the oil wells could also be captured by the rule preventing damage to the enemy’s property (Hague Regulations art. 23(g)) and the rule preventing an Occupying Power from destroying property in an occupied territory (GCIV arts 53 and 147). Iraq could not invoke its right to practice a ‘scorched earth’ policy because the area it attacked was not within its national territory. 336 Protection of the Environment in Times of Armed Conflict, UN General Assembly 47/37 of 9 February 1993. See also, San Remo Manual, supra note 312 at para. 44; Annotated Supplement, supra note 14, Chapter 8: The Law of Targeting at para. 8.1.3 and note 21. 337 For a summary of the arguments put forward by proponents and opponents of the applicability of the ENMOD Convention to attacks such as those perpetrated by Iraq, see Dinstein, supra note 35 at 194-195.

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A. Distinction between keeping and enforcing peace The legal basis for the establishment of ‘peacekeeping operations’ by the Security Council falls somewhere between Chapter VI of the UN Charter, ‘Pacific Settlement of Disputes’, and Chapter VII of the UN Charter, ‘Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression’, which has led some observers to identify a legal basis informally referred to as Chapter VI ½. By involving a concrete military presence, peacekeeping does not consist of mere recommendations for the settlement of a dispute or the establishment of fact-finding missions as provided for in Article 34 of the UN Charter.338 Nor does peacekeeping involve non-consensual military intervention authorized by the Security Council. Depending on the nature of the mandate, peacekeeping oscillates between Chapter VI and Chapter VII of the UN Charter, with preventive diplomacy and unarmed observer missions coming closest to the former and ‘quasi-enforcement’ operations flirting with the latter. Peace enforcement actions follow a determination by the Security Council that there exists a threat to the peace, a breach of the peace or an act of aggression that requires the military intervention of States on behalf of the international community. Once authorized by the Security Council, a peace enforcement intervention is either led by one or a coalition of willing Member States, under Chapter VII of the UN Charter,339 or by regional forces acting under the aegis of a regional organisation, under Chapter VIII of the UN Charter.340 Either way, the military contingents involved in this type of mission are mandated to engage in combat operations and are therefore considered as combatants under the laws of war with no possibility of benefiting from the protection afforded to civilians. Peacekeeping operations are, in theory, governed by three cardinal principles: their deployment requires the consent of the Parties to the conflict, non-use of force except in self-defence, and impartiality.341 If these principles are respected then it makes sense to afford the same protection to peacekeeping missions as to civilians because the peacekeepers are not parties to the conflict and indeed are acting with the parties’ consent. However, as will be discussed below, while they continue to be heralded as sine qua non conditions of UN-led deployment, the cardinal principles of peacekeeping are facing severe challenges. Perhaps less 338 UN Charter art. 34 states: “The Security Council may investigate any dispute, or any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security.” 339 Chapter VII operations were deployed in: Korea [SC Res. 83 of 27 June 1950 – US command and control]; Iraq [SC Res. 678 of 29 November 1990 – US command and control]; Somalia (UNITAF) [SC Res. 794 of 3 December 1992 – US command and control]; Rwanda (Opération Turquoise) [SC Res. 929 of 22 June 1994 – French command and control]; Haiti [SC Res. 940 of 31 July 1994 – US command and control]; Albania [SC Res. 1101 of 28 March 1997 – Italian command and control]; East Timor (INTERFET) [SC Res.1264 of 15 September 1999 – Australian command and control]; Democratic Republic of Congo [SC Res. 1484 of 30 May 2003 – French command and control]. 340 Chapter VIII operations were deployed in: Liberia (ECOMOG) [SC Res. 813 of 6 March 1993 – ECOWAS command and control]; Sierra Leone [SC Res. 1132 of 8 October 1997 – ECOWAS command and control]; the former-Yugoslavia (IFOR and SFOR) [SC Res. 1031 of 15 December 1995 and SC Res. 1088 of 12 December 1996 – NATO command and control]. 341 First established by the Secretary-General Dag Hammarsköldon the occasion of the first UN-led peacekeeping operation (UNEF I deployed in 1956 in response to the Suez crisis), these ‘bedrock’ principles of peacekeeping were reiterated in the Report of the Panel on United Nations Peace Operations, UN Doc. S/2000/809 of 21 August 2000, at para. 48.

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equivocal is the fact that peacekeeping operations are governed by the principle of unity of command, according to which military contingents volunteered by Member States are subject to the exclusive command and control of the United Nations, as vested in the Secretary-General, under the authority of the Security Council. In recent times, peacekeeping missions deployed on a non-interventionist and non-coercive basis have seen their mandates evolve toward something that looks more like peace enforcement as a result of unforeseen developments in the field.342 This has meant that missions have stayed on the ground despite a withdrawal of consent on the part of the Parties to the conflict, that they have been authorised to use force beyond self-defence, and that they have been instructed to intervene in favour of one Party against the other. In such situations, with the cardinal principles having been compromised, the personnel and objects involved in peacekeeping missions no longer benefit from a blanket protection. Where then should the line be drawn? B. Loss of protection Peacekeeping missions that are deployed according to the cardinal principles mentioned above – consent of the Parties to the conflict, non-use of force except in self-defence, and impartiality – benefit from the protection accorded to civilians and civilian objects, without prejudice to the normal application of the rules on loss of protection.343 That said, the prohibition against targeting objects involved in a ‘peacekeeping’ mission remains contingent upon the mandate of the force. A military contingent that has received the orders from UN Headquarters to engage in combat cannot claim that it is shielded from attacks by virtue of its ‘peacekeeping’ label. What matters is whether or not the current mandate involves combat functions. Neither the Geneva Conventions nor the Additional Protocols mention this rule primarily because the presence of peacekeeping forces in conflict zones is new. The Convention on the Safety of United Nations and Associated Personnel, adopted by the General Assembly and opened for signature on 9 December 1994, makes it a crime to attack “the official premises, the private accommodation or the means of transportation of any United Nations or associated personnel.”344 The Statute of the International Criminal Court broadens the 342 In 1993, the UN-led protection force in Bosnia and Herzegovina saw its mandate enlarged to encompass the authorization to use force in order to protect the Bosnian Muslim population placed in ‘safe areas’ and to ensure compliance with the flight ban [SC Res. 836 of 3 June 1993, SC Res. 844 of 18 June 1993 and SC Res. 816 of 31 March 1993]. The same year, in Somalia, UNOSOM II was created after the failures of UNOSOM I and US-led UNITAF, with an enlarged mandate that involved the authorization to use coercive power in order to respond aggressively to attacks that were being perpetrated against UN troops by some Somali factions [SC Res. 814 of 26 March 1993]. 343 The civilian status of peacekeepers is confirmed by the Karadzic and Mladic case before the ICTY, in which the accused have been charged for taking UN peacekeepers as hostages. Para. 48 of the July 1995 indictment reads: “RADOVAN KARADZIC and RATKO MLADIC, individually and in concert with others planned, instigated, ordered or otherwise aided and abetted in the planning, preparation or execution of the taking of civilians, that is UN peacekeepers, as hostages [emphasis added]” (ICTY, Prosecutor v. Radovan Karadzic and Ratko Mladic, IT-95-5-I, Indictment of 24 July 1995). See also Rule 33, Customary IHL, Vol. 1, supra note 29 at 112. 344 Article 9(1)(b) of the United Nations Convention on the Safety of United Nations and Associated Personnel, 9 December 1994, reprinted in Roberts & Guelff, supra note 3 at 627. The protection afforded by the Convention extends beyond peacekeepers and their property to include members of the police as well as civilian personnel engaged or deployed as part of a UN mission. Under art. 2(2), the Convention does not apply to “enforcement

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category of protected objects mentioned by the 1994 Convention by branding it a war crime to intentionally target any objects involved in a peacekeeping mission. The caveat is that such objects must be “entitled to the protection given to civilians or civilian objects under the international law of armed conflict.”345 The same rule is also included in the Statute of the Special Court for Sierra Leone.346 The entire regime may appear redundant in that if an object is entitled to the protection given civilian objects, it is already protected. Thus the supposedly broadened protection offered by the Rome Statute may not extend anything that was not already there. Its value, however, lies in the increased focus on protecting peacekeepers and objects involved in such missions, and explicitly making attacks against them a war crime. It may be that by singling out peacekeeping operations, such provisions will increasingly be interpreted as affording special protection that is not merely contingent on the objects qualifying for civilian protection. The fact that the protection of peacekeeping missions is now set out in important international treaty instruments, even if the substantive benefit of their provisions is questionable, highlights the contemporary relevance of providing adequate protection to peacekeeping missions. Unfortunately, recent history has shown that peacekeeping forces often struggle with unclear mandates and rapidly changing situations on the ground, which ultimately undermine the possibility of establishing clearly when the troops and their material should be shielded from attack.

action under Chapter VII of the Charter of the United Nations in which any of the personnel are engaged as combatants against organized armed forces and to which the law of international armed conflict applies.” 345 Rome Statute art. 8(2)(b)(iii). 346 Art. 4(b) of the Statute of the Special Court for Sierra Leone, annexed to UN Doc. S/2000/915 (2000), available online: <http://www.sierra-leone.org/specialcourtstatute.html>.

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CONCLUSION The legal regime applicable to targeting seeks to advance the aims of distinction between civilian objects and military objectives without which the law governing the conduct of hostilities has no raison d’être. Many of the arguments examined in this study are sophisticated and far removed from the reality of most victims of war. The fear of many civilians is not so much that they may become an incidental casualty of military action; rather the threat they face is of being directly targeted by armed groups that have no consideration for the notion of non-combatant immunity. Yet, in the last decade, the people of Iraq, the former-Yugoslavia, Afghanistan and the Occupied Palestinian Territory have experienced the effects of sophisticated aerial bombing campaigns and missile attacks that have allegedly been planned and carried out in accordance with the laws of war. Regardless of the ultimate outcome, the day-to-day reality of these recent conflicts has involved loss of life and destruction of objects that play a vital role in the lives of ordinary civilians. In any war, this is to be expected. But to what extent? While there are no precise answers, the law provides decision-makers with guidelines in the form of questions that must be asked at every stage of the targeting process: • Does this object make an effective contribution to the enemy’s military action? • Will its destruction provide a military advantage that can both be identified and

qualified? • What available weapon and which method of attack would best be suited to this target

while causing the least feasible collateral damage? • Is the foreseeable collateral damage justified in light of the direct advantage

anticipated? • At the time of attack, does the assessment still hold true? In many cases, evidence that due consideration was given to these questions will be enough to establish that an attacking Party fulfilled its obligation of means and exonerate it from the disciplinary or penal consequences of a violation. The problem with implementing these guidelines, however, is that there is disagreement regarding some of the key concepts, such as ‘effective contribution to military action’, ‘military advantage’, ‘feasibility’ and ‘damage’. This study has sought to clarify these notions while pinpointing the most contentious issues as a starting point for future consultations. By way of conclusion, these issues are briefly summarized. War-Sustaining Capability. The current definition of military objective adhered to by the United States has an unduly wide scope because it includes objects that indirectly but effectively contribute to the enemy’s war-fighting capability. While the United States is not using this formulation to justify targeting schools, hospitals or religious institutions, it may have opened the door to abusive interpretations on the part of its enemies. Democratic societies are particularly vulnerable since the war-sustaining dimension of civilian infrastructure is most likely to affect a government’s will to continue the war.

Military Advantage. The First Additional Protocol defines the military advantage expected or anticipated from a target as ‘definite’ or as ‘concrete and direct’, requiring that the

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advantage correspond to something concrete on the ground. Many States have stated that they will assess the military advantage resulting from ‘an attack as a whole’ and not from parts thereof. There appears to be a need to circumscribe the meaning of this expression in order to ensure that the value of targeting certain objects, and the ensuing admissibility of collateral damage, not be assessed too broadly. Notional Targets. There is an apparent consensus among military and legal analysts that there is no legal basis for targeting civilian objects on the sole grounds that they are tools of propaganda or that their destruction will serve to destroy the legitimacy of the enemy government. In practice, however, attacks against broadcasting facilities and certain government premises have been perpetrated without sufficient proof of their military value and with the actual aim of bringing the war home to the civilian population. Minimum Feasible Damage. The rule of proportionality is only meaningful if it is interpreted in light of minimizing or avoiding loss of civilian life and damage to civilian objects. The point at which an attack becomes disproportionate is necessarily vague. Nonetheless, the means and methods available to technologically-advanced States are such that the less damaging alternatives must be duly considered. In the Kosovo intervention, on one occasion and at the insistence of France, the United States used very precise weaponry to attack electrical grids with minimal resulting damage. This is a prime example of proportionate targeting, whether or not one accepts the electrical grid as a legitimate military objective. Zero-Casualty Warfare. The fact that States seek to limit own-side casualties in choosing means and methods of warfare does not unfairly skew the application of the principle of proportionality. However, humanitarian considerations, namely the obligation to limit collateral damage, require that precautionary measures be fully implemented. A policy of ‘zero-casualty’ warfare – if it indeed exists – should not be carried out at the expense of the civilian population. Dual-Use Targets. The prevalence of attacks against dual-use targets demands that further thought be put into preventing long-term damage to civilians. The provisions limiting attacks against objects necessary to the survival of the population (Article 54 of the First Additional Protocol), works and installations containing dangerous forces (Article 56 of the First Additional Protocol) and the environment (Article 35(3) and 55(1) of the First Additional Protocol) are insufficient to cope with this reality. Creative solutions must be sought to solve the causality question of damage over time and space since it is no longer possible to invoke the unforeseeability of such damage. Effects-Based Targeting. Targeting theories that are currently adhered to by the United States and its NATO allies have the potential of encroaching upon the protection of civilians under the humanitarian pretence of ‘efficient’ warfare. This could be a case of mission creep through an interpretation of the law that favours those states that have the military might and the know-how to exploit the novel and perhaps ambiguous legal reality of contemporary warfare. Strategic theories must integrate humanitarian considerations more honestly lest the ‘disadvantaged’ enemy begins to feel warranted in ignoring the principle of distinction altogether, thereby carrying the war into an arena of non-law where indiscriminate weapons are used, human shields are resorted to, and the civilian population is targeted.

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