Military objectives

The operational effectiveness of the contemporary international law of armed conflict is predicated on one of the most fundamental principles of the modern law: namely, the principle of distinction, which the ICJ has labelled the first of the ‘cardinal principles’ of international humanitarian law, because it is ‘aimed at the protection of the civilian population and civilian objects and establishes the distinction between combatants and non-combatants; States must never make civilians the object of attack’.¹ The principle of distinction has been implicit in the enunciation of earlier, more generalised, rules of LOAC: ‘The right of belligerents to adopt means of injuring the enemy is not unlimited’;² ‘The attack or bombardment, by whatever means, of towns, villages, dwellings or buildings which are undefended is prohibited’.³ As such, the principle of distinction operates both as an essential component of the legal protection afforded to the civilian population and to individual civilians, and as a crucial element in the legal regulation of the conduct of hostilities; it is enshrined both in treaty provision⁴ and as a norm of customary international law.⁵ The universally accepted contemporary formulation appears in Article 48 of Additional Protocol I, which reads as follows:

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.

The wording makes it evident that, insofar as inanimate objects are concerned,⁶ it is necessary to give effect to the rule by distinguishing military objectives from civilian objects; since the law 140does not define civilian objects other than in negative terms, the definition of military objectives per se assumes a critical importance. What precisely, therefore, is a military objective?⁷ With the demise of the doctrines of ‘total war’ since the end of the Second World War, it is no longer permissible to be as blithely cynical in answering this question as in an earlier era, as evinced by the following exchange in the British House of Commons, during a debate on aerial bombardments in the Spanish Civil War: THE PRIME MINISTER

The difficulty [with military objectives] arises when one of the forces engaged in aerial warfare, being accused of deliberate bombing of civilians, deny that they were bombing civilians or that it was deliberate, and allege that they were in pursuit of military objectives. Again, what is a military objective? Surely these are not matters which can be passed over as if they were of no importance. Suppose a church is used as the headquarters of a division. Is that a military objective or is it not?

MR S O DAVIES

It depends upon what side it is on.⁸

The advent of the modern rules on targeting operations with the adoption of Additional Protocol I in 1977, as interpreted in practice in contemporary armed conflicts since the First Gulf War in 1991, has resulted in the development of a modern legal concept of the military objective – a concept that in its general parameters is reasonably clear and very widely agreed. This is mostly true even of states, like the US and Israel, which have refused to become parties to the Protocol as a whole. The concept has acquired general applicability across the spectrum of armed conflict and in all the known domains of warfare. This chapter will outline the development of the concept and the formulation of the definition in law, along with its interpretation and selected problems that have arisen in practice in recent military operations and are likely to be relevant to future operations. The discussion will be necessarily limited by the requirements of time and space but the scope will seek to provide a reasonably comprehensive overview of this crucial area of modern operational law and practice.