#17206 - International Humanitarian Law Targeting - International Humanitarian Law / Law of Armed Conflict

[IAC+NIAC] Targeting 2

Additional Protocol I, Art. 48 2

Additional Protocol I, Art. 49 2

Additional Protocol I, Art. 51 2

Additional Protocol II, Art. 13 3

Summary Targeting Checklist 3

Military Objectives: Persons 4

Combatants 4

Civilians 4

Civilians Directly Participating in Hostilities 5

Military Objectives: Objects 7

Additional Protocol I, Art. 52 7

Military Objects 7

Civilian Objects 8

Proportionality 9

Precautionary Measures 10

Additional Protocol I, Art. 57 10

Additional Protocol I, Art. 58 10

Precautionary Measures 10

Other Precaution Considerations 11

Note on citations:

For treaties, I have used an abbreviation, followed by a period and the article number. Thus Geneva Convention IV, Article 42 becomes “GC4.42.” Article 2 Common to the Geneva Conventions becomes GC.CA2. The Hague Regulations are HR, and the Protocols Additional to the Geneva Conventions are AP1 & AP2.

Citations in the form “HB000” refer to section numbers in Fleck, The Handbook of International Humanitarian Law (3rd ed.).

I’ve also cited certain academic articles, commentaries and government documents:

ILA-Sydney refers to the International Law Association’s 2018 Sydney Conference Report on the Use of Force.

Sassòli refers to Marco Sassòli’s 2015 article “Combatants” in the Max Planck Encyclopedia of Public International Law.

DoD refers to the US Department of Defense Law of War Manual (Dec. 2016 Update).

ICRC guidance on civilians directly participating in hostilities refers to Nils Melzer (ICRC) Interpretive Guidance (2009).

Lubell refers to Noam Lubell, “Fragmented Wars: Multi-Territorial Military Operations Against Armed Groups” 93 International Legal Studies 215 (2017).

**Principle of distinction is jus cogens, applicable regardless of conflict classification.** This means the targeting, proportionality, and precaution stuff always applies [HB448].

• AP1.48: Attacks may only be directed at a military objective.

  • AP1.49(1): Attack means act of violence against the adversary, whether offense or defense.

  • AP1.49: Applies to any land, air, sea warfare that may affect civilians or civilian objects on land. Otherwise, doesn’t apply to armed conflict at sea or in air.

    • Though air/sea attacks are covered by CIL [HB442].

• (1) Military necessity: Is the attack necessary for military success?

  • There must be a rational justification for why the military is carrying out the attack. This is rarely a practical question. Keep Dinstein’s parallelogram in mind.

• (2) Distinction: Is the target a military objective?

  • If NO, the attack cannot take place. If an attack is indiscriminate, it fails here.

  • Ensure the target is a military objective: combatants or DPH civilians, or military object based on nature, location, purpose or use.

  • Under IHL, civilian lives and civilian objects are equally important.

  • Extra caution for dual use items (used by civilians and military) like transport, energy, communication.

• (3) Collateral effects: Are there anticipated risks to civilians?

  • If NO, go ahead with attack, since proportionality is irrelevant.

  • This only usually happens for attacks in deserts or at sea.

• (4) Proportionality: Is the expected harm to civilians excessive in relation to anticipated military advantage?

  • If excessive, the attack cannot take place.

  • Based on knowledge and mind state of commander at time of attack.

  • Not necessary to consider indirect or knock-on effects.

  • Consider types of munitions and surrounding damage (e.g., attacking building collapses another).

• (5) Precautionary measures: What precautionary measures are available?

  • What should be done to decrease risk of harm to civilians and civilian objects?

  • Can consider risk to own forces under this question, but not under proportionality.

• (6) Means and methods: What means and methods of warfare are appropriate and lawful for the attack?

  • Drone strikes, air strikes, regular munitions etc. are permitted. Cluster munitions etc. are not.

  • Political and military propaganda is permitted.

• Except for hors de combat and parachuting crews, all combatants are targetable at all times [HB443].

• AP1.41: Hors de combat shall not be made the object of attack. Person is hors de combat if:

  • in the power of adverse party;

  • clearly expresses intention to surrender; or

    • [mere appearance of retreat is not enough, e.g., Iraq Highway of Death]

  • rendered unconscious or otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself; and

  • provided that in any of these cases he abstains from any hostile act and does not attempt to escape.

• AP1.42: No attacking persons parachuting in distress, unless they are airborne troops. Must be given chance to surrender upon reaching ground, unless apparently engaging in hostile act.

• AP1.51(2) & AP2.13(2): The civilian population as such, or individual civilians, may not be made the object of attack. Attacks primarily intended to terrorize civilian population are prohibited.

• Human Shields...