FREE CHAPTER from ‘A Practical Guide to the Law of Armed Conflict’ by Jo Morris & Libby Anderson

CHAPTER THREE
LEGITIMATE TARGETS

The fundamental tenet of LOAC is that only certain things and people are legitimate targets. It is expected that belligerents distinguish between civilians and combatants. Combatants are those who are directly involved in the fighting. Members of the civilian population are deemed to be non-combatants and enjoy protection from attack under the law of armed conflict. However this distinction is not so clear cut on the ground. If a civilian is directly participating in hostilities they are also a legitimate target. Anything that is in military use may be a legitimate target. However, proportionality would demand that the military gain be balanced against the harm caused to civilians.

Convention definition of combatant

Combatants are clearly defined by Article 4A of the Geneva Convention III:

  1. Members of the armed forces or volunteer corps of any belligerent party to the conflict.

  2. Other militia such as resistance groups as long as they satisfy the following conditions:

    1. they are commanded by a person responsible for his subordinates

    2. they have a distinctive emblem

    3. they carry arms openly

    4. they operate within the law and customs of war.

  1. Members of regular armed forces of a government not recognised by the detaining power.

  2. Civilians of an unoccupied country who take up arms to resist the approach of the enemy.

Troops

The members of the belligerent armed forces on either side of a conflict are combatants and have the right to directly participate in the conflict, that is, to attack the opposition and to defend themselves from attack by lawful methods. They are also lawful targets. The exceptions to this are medical personnel and the military chaplaincy. Any unsurrendered enemy combatant can be targeted at all times although any strike would need to be proportionate.

It is a misconception to say that troops that are in disarray having failed in battle cannot be attacked further. Today’s defeated soldier will regroup and emerge as tomorrow’s threat. A retreating force is a legitimate target of attack unless they actually lay down arms and surrender, thereby rendering themselves hors de combat.

Similarly, there is no requirement for hands to be shown. A lawful attack can be carried out by sniper fire or an ambush, the launch of a missile or an air strike.

Non-state belligerent forces

In an age where asymmetric conflict between state actors and insurgencies are increasingly prevalent, due consideration must be given to the status of belligerent non-state actors.

Belligerent non-state actors may be harder to identify as combatants as they are not necessarily recognisable uniformed organisations, using standard kit and equipment. Taking this further, some belligerents may seek to disguise their members as non-combatants in order to avoid attack. Opposition tactics, techniques and procedures may involve modus operandi such as wearing civilian dress to blend in with the local population, and caching weapons which can be retrieved from a known location and immediately discarded after use, to assist with disguise as a non-combatant.

Representatives or emanations of the state

Assassinations of political leaders, regardless of their merits, are not lawful unless they are combatants or directly participating in hostilities. Otherwise they are civilians and therefore protected. They may well be prosecuted for war crimes but they cannot be the subject of a targeting killed without due process of law.

Sometimes the political leadership consists of serving members of the armed forces, and so are clearly combatants. Equally it will be possible to argue that a political figure is a legitimate target even when not a serving member of the armed forces because he is part of the military chain of command. Most Ministers of Defence issue orders to the armed forces sufficient to render themselves legitimate targets of attack. The assessment should be on the basis of actual power. The Queen, even when she is in uniform, should not be a legitimate target because her powers are ceremonial only.

Objects

Article 52 of the Additional Protocol 1 to the Geneva Conventions considers the protection of civilian objects. Article 52.1 is clear – “Civilian objects shall not be the object of attack or reprisal.” Looting and other acts of wanton destruction are a war crime. Article 52.2 sets down:

Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objects are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose partial or total destruction, capture or neutralisation, in the circumstances ruling at the time, offers a definite military advantage.”

Some buildings are military by their nature. For instance, the Ministry of Defence. Many other Government offices would not be, for example the Department for Education has no military function. Such offices could be used to plan military operations or prepare or broadcast war propaganda. This would render them legitimate targets as long as the military tasks were underway at the time of attack.

In fact, buildings of dual use are legitimate targets. Article 52.3 does make clear that “in cases of doubt whether an object […] is being used to make an effective contribution to military action, it shall be presumed not to be so used.” Further, the principle of proportionality would have to be considered. The civilian population must not suffer excessive collateral damage to secure a small military advantage.

Nevertheless, the fact of dual use does not disqualify an object. Most buildings and objects had a peaceful purpose until hostility broke out. Sources of raw minerals and resources service both the military and the civilian population. Strikes against the electricity grid or cyber infrastructure may gain a worthy military advantage but also have an impact upon the civilian population. That does not render them illegitimate. It just means a proportionality calculation must be done.

Similarly, manufacturing sites rarely have a purely civilian purpose. The commercial market can give way to military need. During the two World Wars the entire civilian industry supported the war effort almost exclusively. Car manufacturers can manufacture tanks. Arms dealers can supply the military. Petroleum companies can supply petrol to the military to power tanks and aircraft.

Airports and harbours are usually legitimate targets. They have a civilian purpose but are usually turned over to military use during wartime. Sometimes civilian use continues to a degree, but is severely curtailed. In the case of rogue states, continued civilian use could hide a sinister military operation. Although they are dual-purpose objects, the proportionality calculation is not likely to conclude there is a hide risk to civilians.

Classifying means of inland transport is more complex. Clearly roads and railways are dual-purpose. However, the issue of proportionality would be a stumbling block. Civilians commonly carry on with their daily lives during wartime. Mostly transport is used by civilians to perform basic functions such as going shopping or travelling to work. Trains and buses may be used by both military and civilians, but the cost to civilians is likely to be disproportionately high. Unless compelling evidence existed of military use, this is likely to be a target that carries too great a risk.

Although Article 8.1(a) does refer to “any broadcasting station” when considering a military objective, broadcasting stations and newspapers generally do have a civilian purpose. In peacetime, broadcasting would be their primary purpose and therefore such entities would not be a legitimate target. That may change if they were used during wartime for military purposes. During conflict a broadcasting station could be used for propaganda and as a call to arms. In any event, even if complete military control had been established and the only communication were for military purposes, a proportionality calculation would need to be made.

Defended localities are legitimate targets if the purpose is to strike against resistance or eliminate military objectives. Whole villages can never be a proper target whether it is believed that combatants are hiding somewhere within or not. Bombardment is only permissible if it could achieve a military purpose under Article 52, para 2, Additional Protocol I. Of course, collateral damage will be inevitable but there must be efforts to reduce this and the damage must not be disproportionate.

Further, Article 57 Additional Protocol I requires that an attacking force should give advance warning of any strike in order to give the enemy a chance to evacuate civilians from the area. The only exception is where the success of the onslaught depends almost entirely upon the advantage of surprise. Then the principle of military necessity would recognise that a warning is counter productive and so unnecessary.

This creates thorny problems for a lawful fighting force if a rogue state uses its civilian population as a screen for military activities. Article 51, paragraph 8 Additional Protocol I expressly confirms that the conduct of a rogue state does not excuse an attacker from his legal obligations under international law. This does cause a lawful fighting force extreme difficulties as he faces an adversary who uses LOAC against him whilst being willing to breach it himself.

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