Military Objectives
Military objectives are defined by international humanitarian law (IHL) as objects which, by their nature, location, purpose, or use, make an effective contribution to military action, and the total or partial destruction, capture, or neutralisation of which would provide a definite military advantage. This definition is contained in Additional Protocol I of 1977 to the four Geneva Conventions (API, art. 52). It is also recognised in similar terms as a rule of customary international humanitarian law (CIHL) applicable to both international and non-international armed conflicts and binding on all States, including those that have not ratified the Additional Protocols of 1977 (CIHL Rule 8).
The definition of a military objective is an essential part of the IHL principle of distinction, which protects civilians and civilian objects from attack in times of conflict. Indeed, this principle requires that the attack be limited to a purely military objective and that civilian objects may not be the object of attack (API, art. 52(1); CIHL rules 7-9).
The definition of military objectives contains two cumulative conditions that complement each other:
•The nature, the place, the purpose, or the use of the object must make an effective contribution to military action. Therefore, the civilian or military nature of an object depends on the effect this object has on the course of the conflict.
•The destruction of the object —in whole or in part— its capture, or neutralization in the circumstances ruling at the time of the attack, must provide a definite military advantage. Hence, attacks that will result in solely unspecified or potential advantage are prohibited as well as attack affecting object that are not anymore used for military purposes at the time of the attack.
☞ In case of doubt concerning an object that is normally used for civilian purposes—such as a house or other dwelling, a place of worship, or a school—parties to a conflict must assume that the object in question is not being used for military purposes (API, art. 52(3)). In order for the attack to be considered lawful, it must be shown that the object was in fact being used for military purposes at the time of the attack a military, that its destruction provided a definite military advantage, and that and that the possible incidental civilian destruction remains proportionate to the military advantage obtained by the attack.
At all times, IHL requires military commanders to observe a number of precautions in the conduct of military operations, so as to ensure the protection of civilians. These precautions include, for example, prohibiting the excessive use of force and doing “everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects” and in “minimizing incidental loss of civilian life, injury to civilians, and damage to civilian objects”. It also entails the duty to cancel or suspend an attack on a military objective when the incidental civilians’ losses, injury and damages exceed the definite and concrete military advantage anticipated. (API, art. 57, CIHL Rules 15-21).
Attacks which are not directed against a specific military objective are prohibited, as are attacks using methods or means of combat which cannot be directed against a specific military objective or which are designed to indiscriminately attack military objectives and civilians or civilian objects without distinction (API, art. 51(4); CIHL Rules 7 and 12).
As a consequence, the presence or movement of the civilian population may not be used to render certain points or areas immune from military operations and, in particular, to protect military objectives from attack (API, art. 51(7)).
Furthermore, works or installations containing dangerous forces (namely, dams, dikes, and nuclear electricity-generating stations) must not be the target of attacks, even if they are military objectives (API, art. 56; APII, art. 15).
A particular difficulty arises when civilian objects, i.e. infrastructure and buildings (roads, bridges, schools, factories, power plants, telecommunications systems, satellite internet connections), are temporarily used for military purposes or are used for both civilian and military purposes.
This is the case for dual-use objects, which can be considered legitimate military targets if they fulfil the two cumulative conditions mentioned above. The fact that they are also used for civilian purposes has to be taken into account when assessing the condition of proportionality and the obligation to take all feasible precautions to limit loss, injury and damage to civilians.
IHL also provides that civilians and civilian objects may lose their protection under IHL if they participate directly in hostilities or if they are used to commit acts harmful to the enemy. This potential loss of protection also applies to medical personnel and medical facilities that commit, or that are used to commit, acts harmful to the enemy outside of their medical functions. However, the potential loss of protection under IHL does not constitute a licence to attack. Restrictive cumulative conditions imposed by the definition of military objectives and by the duties of proportionality and precaution remain imperative and require an ad hoc legal assessment of each situation.
The key issue related to targeting dual use objectives is to ensure that the attack of the object is directed to its military use, rather than to intended weaken the morale of the population or to spread terror among civilians.
The ad hoc international Criminal Tribunal for the former Yugoslavia (ICTY) set out the principles of international law on this issue when it gave its opinion on the NATO bombing of the Serbian television and radio facilities. It insisted that civilians, civilian objects, and civilian morality as such are not legitimate military targets. It also stressed the fact that while the media may disseminate propaganda, this does not make their facilities a legitimate target. However, where broadcasting facilities were used solely to incite hatred and disseminate propaganda, this may have justified their destruction (ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign against the Federal Republic of Yugoslavia , 8 June 2000, paras. 47, 55, 74, and 76).
➔ Attacks ▸ Duty of commanders ▸ Human shields ▸ Methods (and means) of warfare ▸ Military necessity ▸ Proportionality ▸ Protected objects and property ▸ Terror
Jurisprudence
The assessment of the civilian or military nature of a target requires an ad hoc decision by commanders. In a number of cases, these judgments have been reviewed by judges in international criminal tribunals.
In 2000, the ICTY reviewed the legality of the NATO bombing campaign against the Federal Republic of Yugoslavia in 1999 and considered the definition of the concept of military objectives in comparison with other concepts (ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign against the Federal Republic of Yugoslavia , 8 June 2000, paras. 45, 55, 74, and 76). The ICTY decided that the generally accepted definition was that contained in article 52 of Additional Protocol I of 1977 to the Geneva Conventions. This definition has two elements: (1) the nature, location, purpose or use of the goods must make an effective contribution to military action; and (2) its total or partial destruction, capture, or neutralisation must, in the circumstances prevailing at the time, provide a definite military advantage. This definition should enable informed and impartial observers —as well as decision-makers in times of armed conflicts—to decide whether an object is properly described as military. This may be easy to do in straightforward situations. However, it may be controversial in situations where goods are used for both civilian and potentially military purposes (e.g., communications technology, transport goods, petrochemicals items, and some types of factories). Similarly, the application of the definition may vary according to the scope and the objectives of a conflict —while those scope and objectives may themselves change during the conflict. The ICTY explained the notion of dual-use objects and whether attacks on such objects were lawful (case of NATO bombing of Serbian radio and television). It confirmed that civilian morale as such is not a legitimate military objective. If the media are used to incite crimes, as in Rwanda, they can become legitimate military targets. However, if the effect is merely to promote support for the war effort, the media are not legitimate military objectives. The ICTY added that while definition of military objective in the Additional Protocol I is not beyond criticism, it provides the contemporary standard to be applied when attempting to determine the lawfulness of particular attacks. The definition is generally accepted as part of customary law and applies even to States that have not ratified Additional Protocol I (paras. 36-37 and 42).
In the Blaškić case, the Trial Chamber of the ICTY rejected the Defence claim that civilian buildings destroyed during the attack on the town of Vitez were used for military purposes and were therefore legitimate military targets. Looking at the overall situation and the result of the attack, the Trial Chamber found that it was impossible to ascertain any strategic or military reasons for the attack on Vitez and Stari Vitez on 16 April 1993. Even if there had been, the devastation inflicted on the town disproportionate to the military necessity. On the contrary, the attack was intended to implement a plan of expulsion, if necessary, by killing Muslim civilians and destroying their property (para. 509) The Court further held that there is no doubt that the attacks carried out by the HVO in April and June 1993 were not justified on strictly military grounds, but also targeted Muslim civilians and their property (para. 627). ( Blaškić , Case No. IT-95-14-T, Judgment , 3 March 2000, paras. 509-627). Further, in this same Blaškić case, the Trial Chamber (paras. 401 and 509-510) also stated that although armed persons resisting armed attacks were present among the civilian population, this population continued to enjoy protection as civilians and their village could therefore not be considered as being a military objective.
In the Galić case, the ICTY Trial Chamber ruled that the Prosecution must prove that the perpetrator knew or should have known of the civilian status of the persons attacked. If there is any doubt as to the status of the person, that person is presumed to be a civilian. In such cases, however, the Prosecutor must prove that, in the circumstances, a reasonable person could not have believed that the person, he or she attacked, was a combatant ( Prosecutor v. Stanislav Galić , Case No. IT-98-29-T, Judgment , 5 December 2003, para. 55). The Trial Chamber also made a specific assessment as to whether, in the circumstances prevailing at the time, the destruction, capture or neutralisation of the object provided a clear military advantage ( Galić, Judgment, paras. 51 and 55).
In the Kordić case, the ICTY Appeals Chamber clarified the scope of the civilian presumption applicable to objects and persons in case of doubt as to their military status. It held that “the imperative ‘in case of doubt’ [presumption provided by IHL] is limited to the expected conduct of a member of the military. However, when the latter’s criminal responsibility is at issue, the burden of proof as to whether an object is a civilian one rests on the Prosecution”. (P rosecutor v. Dario Kordić and Mario Čerkez , Case No. IT-95-14/2-A, Judgment , 17 December 2004, para. 53).
In the Katanga case, the ICC Trial Chamber II, has provided some clarification on the determination of a legitimate military objective. The Chamber ruled that when commanders wish to target a civilian object whose nature is unclear, they must determine the military advantage for each object targeted. This advantage must be “definite and cannot in any way be indeterminate or potential”. ( Prosecutor v. Germain Katanga , Case No. ICC-01/04-01/07, Judgment pursuant to article 74 of the Statute , March 7, 2014, para. 893).
In its judgment of 14 January 2000 in the Kupreškić case, the international Criminal Tribunal for the former Yugoslavia (ICTY) had to rule in particular on the Croatian defence argument that its attack on the Muslim population of the Lasva valley was a legitimate retaliation for attacks allegedly committed by Muslims against the Croatian population. It also challenged the civilian nature of the population because of their mixing with combatants. In its decision, the Trial Chamber considered that “even if it can be proved that the Muslim population of Ahmici was not entirely civilian but comprised some armed elements, still no justification would exist for widespread and indiscriminate attacks against civilians” (para. 513). The Court recalled the prohibition of deliberate attack on civilians and the general principle prescribing that reasonable care must be taken in attacking military objective to avoid causing unnecessary injury to civilians through carelessness (paras. 521-524). The Court also ruled that reprisals against civilians are expressly prohibited under conventional and customary international law as long as civilians are in the hands of the adversary. It also recalled that reprisals against civilians and civilian objects in a combat zone are prohibited by article 51(6) and 52(1) of Additional Protocol I of 1977 (para. 527). It affirmed that under the pressure exerted by the requirement of humanity and the dictates of public conscience, a customary international rule has emerged in this regard (para. 531). The Court found that these conventional provisions were largely reflected in the CIHL rules applicable to non-international and international armed conflicts (paras. 527-536). The Court therefore concluded about the emergence of a customary prohibition of reprisals against civilians in the hands of the enemy as well as for those in the combat zone. This prohibition should apply to all parties to both international and non-international armed conflicts.
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