Abstract
This chapter examines the international humanitarian law governing the conduct of “attacks”. In particular, it identifies and analyzes topics in the law of attack that are presently unsettled as a matter of law. Issues addressed include the scope of the term “military objectives”, the meaning of the term “attack”, application of the rule of proportionality, and the precautions in attack requirements. The author offers his own assessment of how best to resolve such matters.
First published in S. Breau and A. Jachec-Neale, eds., Testing the Boundaries of International Humanitarian Law, 277 (British Institute of International and Comparative Law, 2006).
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Notes
- 1.
Protocol Additional (I) to the Geneva Convention of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (12 December 1977) Article 49, 1125 UNTS 3, 16 ILM 1391 (1977) (hereinafter API).
- 2.
Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 8 July 1996, 1996 ICJ Reports, para 78 (hereinafter Nuclear Weapons). The other principle is ‘unnecessary suffering.’
- 3.
Sandoz et al. 1987 para 1863 (hereinafter Commentary).
- 4.
War Department, Adjutant General’s Office, Instructions for the Government of Armies of the US in the Field, General Orders No 100 (Lieber Code) (24 April 1863) Article 22.
- 5.
Convention [No II] with Respect to the Laws and Customs of War on Land, with annex of regulations, Article 22, 29 July 1899, 32 Stat 1803, 1 Bevans 247; Regulations Respecting the Laws and Customs of War on Land, annex to Convention (No IV) Respecting the Laws and Customs of War on Land, 18 Oct 1907, Article 22, 36 Stat 2277, 1 Bevans 631.
- 6.
Trial of the Major War Criminals vol. I 1947, p. 254; Nuclear Weapons, supra n. 2, para 77. See also, Legal Consequences of a Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, General List. No 131 (9 July 2005) para 86; Report of the Secretary General on Aspects of Establishing an International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (3 May 1993), UN Doc S/25704, 32 ILM 1159 (1993). The Security Council approved the report unanimously.
- 7.
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (12 Aug 1949) 75 UNTS 31; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea (12 Aug 1949) 75 UNTS 85; Geneva Convention Relative to the Treatment of Prisoners of War (12 Aug 1949) 75 UNTS 135; and Geneva Convention Relative to the Protection of Civilian Persons in Time of War (12 Aug 1949) 75 UNTS 287.
- 8.
Henckaerts and Doswald-Beck 2005, Rules 1 and 6. See also Rome Statute of the International Criminal Court (17 July 1998) Article 8.2(b)(i), UN Doc A/CONF. 183/9, 37 ILM 1002 (1998), corrected through 16 Jan 2002.
- 9.
Protocols II and III of the Conventional Weapons Convention and the Second Protocol to the Cultural Property Convention, as well as many military manuals and training material (including those of the US), repeat this formula. 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, 1980, 1342 UNTS 137 (1980); Protocol on Prohibitions or Restrictions on the Use of Mines, Booby Traps and Other Devices (Protocol II), 1980, as amended, 1996, Article 2.6, 35 ILM 1206 (1980); Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III), 1980, Article 1.3, 1342 UNTS 171; Second Protocol to the Hague Convention of 1954 for Protection of Cultural Property in Event of Armed Conflict (1996) Article 1(f), 38 ILM 769 (1999); US Navy/Marine Corps/Coast Guard, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14 M, MCWP 5-2.1, COMDTPUB P5800.7, para 8.1.1, 1995, reprinted in its annotated version as vol 73 of the US Naval War College International Law Studies (1999). On the topic generally, see Dinstein 2002; Robertson 1998.
- 10.
Commentary, supra n. 3, paras 2020–2024.
- 11.
API, supra n. 1, Articles 12, 53, 54, 55, and 56, respectively.
- 12.
The US position on API is authoritatively set out in Memorandum for Assistant General Counsel (International), Office of the Secretary of Defense, 1977 Protocols Additional to the Geneva Conventions: Customary International Law Implications 8 May 1986 (on-file with author). See also Matheson 1987.
- 13.
NWP 1–14M, supra n. 9, para 8.1.1. This assertion is labelled a ‘statement of customary international law.’ The Handbook cites General Counsel, Department of Defense, Letter of September 22, 1972, reprinted in (1973) 67 American Journal of International Law 123, as the basis for this characterization.
- 14.
US joint doctrine reinforces this approach by providing that ‘[c]ivilian objects consist of all civilian property and activities other than those used to support or sustain the adversary’s warfighting capability.’ Joint Chiefs of Staff, Joint Doctrine for Targeting, Joint Publication 3-60, 17 Jan 2002 A-2. The term ‘war sustaining’ also appears in the Instructions for the US Military Commission at Guantanamo. Department of Defense, Military Commission Instruction No 2, Crimes and Elements for Trials by Military Commission (30 April) 2003 para 5D.
- 15.
Commentary, supra n. 3, para 2014.
- 16.
Dinstein 2004, pp. 87–88.
- 17.
Bankovic and Others v. Belgium, the Czech Republic, Denmark, France, Germany, Greece, Hungary, Iceland, Italy, Luxembourg, the Netherlands, Norway, Poland, Portugal, Spain, Turkey and the UK (12 December 2001) Eur Ct Hum Rts App No 52207/99.
- 18.
Office of the Prosecutor, International Criminal Tribunal for the Former Yugoslavia, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia (13 June 2000) paras 71–79, reprinted in (2000) 39 ILM 1257. On 2 June 2000, the Prosecutor announced her decision not to proceed to the Security Council. UN Doc S/PV.4150.
- 19.
Albeit not intentionally in every case.
- 20.
A fact illustrated by inclusion of broadcasting and television stations in an illustrative list of military objectives proffered by APV Rogers, who nevertheless also cites ‘dangers in widening the definition of military objectives’. Rogers 2004, p. 81, 84. The ICRC included such facilities in a proposed list of military objectives it offered in 1956. Draft Rules for the Limitation of the Dangers incurred by the Civilian Population in Time of War, Annex (1956). The list is reprinted in Report to the Prosecutor, supra n. 18, para 39. For a analysis arguing that they are not legitimate military objectives, see Dougherty and Quenivet 2004, pp. 190–192.
- 21.
- 22.
Effects-Based Operations focuses not on the object destroyed, but rather on the effects generated through destruction of the object. On Effects-Based Operations and law, see Schmitt 2004b.
- 23.
Dinstein 2004, p. 88.
- 24.
Final Report to the Prosecutor, supra n. 18, para 37.
- 25.
‘Economy of force is the judicious employment and distribution of forces. It is the measured allocation of available combat power to such tasks as limited attacks, defense, delays, deception, or even retrograde operations in order to achieve mass elsewhere at the decisive point and time,’ Joint Chiefs of Staff, Joint Warfare of the United States, Joint Publication 1 (14 November 2000) B-1.
- 26.
Whitney 1999, A1.
- 27.
Michael Short ‘Operation Allied Force from the Perspective of the NATO Air Commander’ in Wall 2002, 29.
- 28.
Woodward 2004, Chap. 35.
- 29.
Van Voorst 1990, 55.
- 30.
- 31.
Human Rights Watch 2003, 20.
- 32.
1907 Hague Regulations, supra n. 5, Article 23(b).
- 33.
- 34.
GCIII, supra n. 7, Article 4A(1)and(2); API, supra n. 1, Article 43.1.
- 35.
Except medical and religious personnel. API, supra n. 1, Article 43.2.
- 36.
A levée en masse consists of ‘inhabitants of a non-occupied territory, who on approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units’ GCIII, supra n. 7, Article 4A(6).
- 37.
API, supra n. 1, Article 43.3.
- 38.
The Rome Statute specifically makes them subject to prosecution, another indication that humanitarian law carves out no special regime for heads of State. Rome Statute, supra n. 8, Article 27. On targeting heads of States, see also Wingfield 1999; Weinberger 2001, at 21; Turner 2003; Canestaro 2003; Beres 2003.
- 39.
US Constitution, Article II, s 2, cl 1.
- 40.
The ICRC’s Customary International Humanitarian Law Study cites this principle as customary. Henckaerts and Doswald-Beck 2005, Rule 6.
- 41.
Commentary, supra n. 3, para 1678.
- 42.
Ibid., para 1942.
- 43.
- 44.
The Department of Defense’s Dictionary of Military and Associated Terms offers the following definitions for the levels of war:
Strategic Level of War: The level of war at which a nation, often as a member of a group of nations, determines, national or multinational (alliance or coalition) security objectives and guidance, and develops and uses national resources to accomplish these objectives. Activities at this level establish national and multinational military objectives; sequence initiatives; define limits and assess risks for the use of military and other instruments of national power; develop global plans or theater war plans to achieve these objectives; and provide military forces and other capabilities in accordance with strategic plans.
Operational Level of War: The level of war at which campaigns and major operations are planned, conducted, and sustained to accomplish strategic objectives within theaters or other operational areas. Activities at this level link tactics and strategy by establishing operational objectives needed to accomplish the strategic objectives, sequencing events to achieve the operational objectives, initiating actions, and applying resources to bring about and sustain these events. These activities imply a broader dimension of time or space than do tactics; they ensure the logistic and administrative support of tactical forces, and provide the means by which tactical successes are exploited to achieve strategic objectives.
Tactical Level of War: The level of war at which battles and engagements are planned and executed to accomplish military objectives assigned to tactical units or task forces. Activities at this level focus on the ordered arrangement and maneuver of combat elements in relation to each other and to the enemy to achieve combat objectives.
Department of Defense Dictionary of Military and Associated Terms, Joint Publication 1-02, as amended through May 9, 2005 http://www.dtic.mil/doctrine/jel/doddict/.
- 45.
The case-by-case approach is adopted in NWP 1-14M, supra n. 9, para 11.3. The International Criminal Tribunal for the Former Yugoslavia came to the same conclusion:
It is unnecessary to define exactly the line dividing those taking an active part in hostilities and those who are not so involved. It is sufficient to examine the relevant facts of each victim and to ascertain whether, in each individual’s circumstances, that person was actively involved in hostilities at the relevant time.
Prosecutor v Tadic Case No IT-94-1-T, (ICTY 1997) para 616. The issue was crimes against persons taking no direct part in hostilities.
- 46.
API, supra n. 1, Articles 51.2, 52.1, 51.4, and 52.1.
- 47.
Commentary, supra n. 3, para 1875.
- 48.
It is reasonable to include human suffering in the meaning based on the fact that API prohibits causing terror, also a mental condition. API, supra n. 1, Article 51.2.
- 49.
Ibid., Articles 51.5(b); 57.2(a)(iii); 57.2(b).
- 50.
Ibid., Articles 35.3 and 55.1.
- 51.
Ibid., Article 56.1.
- 52.
Dörmann 2004, at 4.
- 53.
API, supra n. 1, Articles 51.5(b), 57.2(a)(iii), 57.2(b). The Conventional Weapons Convention (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) cites proportionality in relation to the indiscriminate placement of weapons in both the original 1980 Protocol II on the Use of Mines, Booby Traps and Other Devices [Article 3.3(c)] and in the 1996 Amended Protocol II on the same subjects [Article 3.8(c)]. Along the same lines, Article 7(c) of the 1999 Second Hague Protocol for the Protection of Cultural Property in the Event of Armed Conflict forbids attacks that may cause incidental damage to cultural property protected under the Convention that would be ‘excessive in relation to the concrete and direct military advantage anticipated’.
- 54.
Nuclear Weapons, supra n. 2, at 587 (dissenting on unrelated grounds); Henckaerts and Doswald-Beck 2005, Rule 14. See also inclusion by US in NWP 1-14M, supra n. 9, para 8.1.2.1.
- 55.
See Schmitt 1997.
- 56.
Rome Statute, supra n. 8, Article 8.2(b)(iv).
- 57.
For a discussion of this tendency, see Schmitt 2003.
- 58.
Actual collateral damage and incidental injury, as well as actual military advantage, may assist an ex post facto assessment (e.g. by a tribunal) to infer what it was that the individual making the proportionality determination anticipated (or should have anticipated).
- 59.
Commentary, supra n. 3, para 1980.
- 60.
Ibid., para 2206, which discusses proportionality in the context of API, Article 57.
- 61.
Specifically, the Court opined that it could not ‘conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake.’ Nuclear Weapons, supra n. 2, para 105E. The present writer finds the decision flawed in its assessment of the proportionality rule, but even accepting the opinion leads to the conclusion that very extensive collateral damage and incidental injury are justified in some cases. See Schmitt 1998.
- 62.
Commentary, supra n. 3, para 2209.
- 63.
UK, Statement Made on Ratification of Additional Protocol I (28 Jan 1998) reprinted in Documents on the Laws of War (Adam Roberts and Richard Guelff (eds) (3rd edn OUP Oxford 2000) 511.
- 64.
Rome Statute, supra n. 8, Article 8.2(b)(iv).
- 65.
Human Rights Watch 2000.
- 66.
Report to the Prosecutor, supra n. 18, para 70.
- 67.
Commentary, supra n. 3, para 2218.
- 68.
API, supra n. 1, Article 57.2(a)(ii).
- 69.
- 70.
This prescription tracks that found in the 1949 Fourth Geneva Convention, Article 28: ‘The presence of a protected person may not be used to render certain points or areas immune from military operations.’ The prohibition only applies vis-à-vis those who ‘find themselves… in the hands of a Party, to the conflict or Occupying Party of which they are not nationals’. It would not apply to Iraqi forces using Iraqis as shields. GCIV, supra n. 7, Article 4.
- 71.
Henckaerts and Doswald-Beck 2005, Rule 97. See also NWP 1-14M, supra n. 9, para 11.2; Rome Statute, supra n. 8, Article 8.2(b)(xxiii).
- 72.
The UN General Assembly condemned Iraq’s use of human shields during the first Gulf War as a ‘most grave and blatant violation of Iraq’s obligations under international law’. UNGA Res. 46/134 (17 Dec 1991). In May 1995, Bosnian Serbs seized United Nations Protection Force (UNPROFOR) peacekeepers and used them as human shields against NATO airstrikes. The UN Security Council condemned this action, demanded release, and authorized the creation of a rapid reaction force to handle such situations. UNSC Res 998 (16 June 1995).
- 73.
See, e.g. Human Rights Watch 2002.
- 74.
The distinction is embraced by the United States. See, e.g. a Pentagon briefing on the subject.
And then, the other target category that is a challenge for us is where the human shields that we’ve talked of before might be used. And you really have two types of human shields. You have people who volunteer to go and stand on a bridge or a power plant or a water works facility, and you have people that are placed in those areas not of their own free will. In the case of some of the previous use of human shields in Iraq, Saddam placed hostages, if you will, on sensitive sites in order to show that these were human shields, but, in fact, they were not there of their own free will. Two separate problems to deal with, and it requires that we work very carefully with the intelligence community to determine what that situation might be at a particular location.
Department of Defense, Background Briefing on Targeting, 5 March 2003 http://www.defenselink.mil/news/Mar2003/t03052003_t305targ.html.
- 75.
Recall API, 51.3. The Rome Statute adopts this standard by making it a war crime to intentionally attack civilians unless they are ‘taking direct part in hostilities’. supra n. 8, Article 8 2(b)(i).
- 76.
Ibid., Article 31.1(d).
- 77.
Dinstein 2004, p. 131.
- 78.
Ibid., The author cites in support Parks 1990, pp. 162–163.
- 79.
E.g. APV Rogers has suggested that:
… a tribunal considering whether a grave breach has been committed [a disproportionate attack] would be able to take into account when considering the rule of proportionality the extent to which the defenders had flouted their obligation to separate military objectives from civilian objects and to take precautions to protect the civilian population… the proportionality approach taken by the tribunals should help to redress the balance which would otherwise be tilted in favour of the unscrupulous.
Rogers 2004, p. 129.
- 80.
See, e.g. API, supra n. 1, Article 13.
- 81.
A provision requiring all feasible precautions to be taken to protect civilians can also be found in Article 3.10 of Amended Protocol II to the Conventional Weapons Convention, which in itself repeats a provision contained in Article 3.4 of its original Protocol II. In addition, a similar provision can be found in relation to cultural property in Article 7(b) of the Second Protocol to the Hague Cultural Property Convention.
- 82.
International Criminal Tribunal for Yugoslavia, Prosecutor v Tadic Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction Appeals Chamber Case IT-94-1 (2 Oct 1995) paras 111–112, citing UN GA Res 2675 (XXV), Basic Principles for the Protection of Civilian Populations in Armed Conflicts (9 Dec 1970). The resolution was adopted with a vote of 109-0, with 18 abstentions/absences.
- 83.
For an assertion these requirements amount to customary law, see Henckaerts and Doswald-Beck 2005, Chap. 5. For implementation in a Protocol Additional I non-Party’s military manual, see NWP 1-14M, supra n. 9) para 8.1.2.1.
- 84.
Recall the mistaken bombing by US aircraft of a marked ICRC facility in Afghanistan (on two separate occasions) during Operation Enduring Freedom. For a discussion of the incidents, see Murphy 2002, p. 247.
- 85.
For instance, the organization criticized the decapitation campaign on this basis without setting forth alternatives to the tactics and weaponry employed by the Coalition. See discussion in Dinstein 2004.
- 86.
Such as by treating ‘as a single military objective a number of clearly separate and distinct military objectives.’ API, supra n. 1, Article 51.5(a).
- 87.
- 88.
Conventional Weapons Convention, Amended Protocol II (n 9) Article 3.10.
- 89.
Commentary, supra n. 3, para 2198.
- 90.
Ibid., para 2195.
- 91.
See discussion in ibid, paras 2029–2038.
- 92.
This was the example used by the Rappoteur of the Working Group responsible for drafting the article. Ibid, para 2032.
- 93.
Marine Expeditionary Force and Multi-National Corps-Iraq, Telling the Fallujah Story to the World, Briefing Slides (20 November 2004) (on file with author).
- 94.
Comparable factors arise in Article 3.10 of Amended Protocol II to the Conventional Weapons Convention, which, when considering the protection of civilians from weapons to which the article applies, refers to ‘the availability and feasibility of using alternatives’.
- 95.
Article 57 of API does not contain an explicit reference to the reasonableness of choices facing the attacker. However, such a condition is implicit in the term ‘feasible’ (practicable or practically possible), which appears twice in Article 57.2. Additionally, a requirement of ‘reasonable precautions’ is contained in Article 57.4 in the context of military operations at sea or in the air.
- 96.
- 97.
See also Henckaerts and Doswald-Beck 2005, Chap. 6.
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Abbreviations
- ICJ
-
International Court of Justice
- ICTY
-
International Criminal Tribunal for the Former Yugoslavia
- LOIAC
-
Law of international armed conflict
- NATO
-
North Atlantic Treaty Organization
- NGO
-
Non-governmental organization
- OAF
-
Operation Allied Force
- OEF
-
Operations Enduring Freedom
- OIF
-
Operation Iraqi Freedom
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Schmitt, M.N. (2011). Fault Lines in the Law of Attack. In: Essays on Law and War at the Fault Lines. T.M.C. Asser Press. https://doi.org/10.1007/978-90-6704-740-1_5
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