JURIST Contributing Editor Geoffrey S. Corn
, Lt. Col. US Army (Ret.) and former Special Assistant to the Judge Advocate General for Law of War Matters, now a professor at South Texas College of Law, says that use of force in Lebanon and other conflict zones is legally governed by fundamental "targeting principles" that must be applied in good faith based on what is known before an attack is ordered....
he ongoing conflict between Hezbollah and Israel taking place primarily in Lebanon and the resulting media images of the devastating effects of modern weaponry have triggered a number of timely and excellent legal commentaries on the principles of the law of armed conflict and potential criminal responsibility for violations of this law harming civilians and other non-combatants. Several of these have already been published on JURIST. As reflected in these commentaries, it is clear that the use of force during this conflict must be regulated by fundamental legal principles.
Most military legal advisers are well versed in these rules, often referred to within the military community as “targeting principles”. This characterization reflects the legal framework they provide for assessing the legality of employing military force to achieve a given military objective (traditionally understood as bringing to submission your military opponent). While much commentary to date has focused on the principle of proportionality, assessment of whether a contemplated application of combat power violates that principle is only one of several steps in this target analysis process. Outlining the overall target analysis framework aids in placing the principle of proportionality as it is applied in contemporary military operations into a broader and more comprehensive perspective.
Before discussing this framework, however, it is important to note that the analysis military lawyers and commanders are taught to conduct is prospective in nature. With all the discussion related to whether the conduct in this conflict will provide a basis for individual criminal responsibility, it seems important to emphasize this basic aspect of the target analysis process. There is certainly no question that individuals who violate this law are subject to such criminal responsibility. But focusing on the question of liability has potential to distort the functional application of this law. Commanders bear an obligation to assess target legality based on the best information available, applying the law in good faith. Ultimately, any assessment of criminal responsibility must be based on the facts available to the military decision-maker when the attack was ordered.
The effectiveness of this framework is absolutely contingent on the two elements mentioned above: seeking out and considering all available information related to the potential target; and applying the legal standard in good faith. Ignoring either of these components will severely compromise the utility of this law. In United States practice (and that of several other nations), the participation of legal advisers in the targeting process is intended to help ensure such compromise does not occur. In fact, one lesson learned by the U.S. armed forces has been that establishing an effective process for target selection is a critical aspect of ensuring compliance with the law. While the extent of this process will certainly vary between levels of command and types of operations, this basis target legality assessment is integral to the effective command of combat power.
All targeting decisions begin with the initial application of the rule of military objective. This rule is intended to effectuate the principle of distinction by ensuring that the destructive effects of combat power are applied only against those people, places, and things whose destruction or neutralization offer a definite military advantage. This rule of military objective is understood as a binding norm of customary international law. For this United States, this conclusion is reflected by the fact that one year prior to the rule appearing in Article 52(2) of the 1977 Additional Protocol I to the Geneva Conventions, it was included in a change to Field Manual 27-10, the U.S. military’s statement of the law of land warfare. According to that change:
Military objectives— i.e., combatants, and those objects which by their nature, location, purpose, or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage—are permissible objects of attack (including bombardment).
While a detailed discussion of this rule is beyond the scope of this commentary, it is important to point out two critical aspects. First, is the emphasis on “circumstances ruling at the time”. This is understood as a clear mandate to military decision-makers that speculative advantage does not justify treating something as a military objective. In addition, the term “definite” in relation to military advantage is also understood to limit speculation in this process.
In practice, these decisions are often made in the extremis of combat. But such reality was well understood by the drafters of Additional Protocol I, which contains the authoritative statement of the rule. In a normal targeting process, the staff intelligence officer plays a critical role in aiding the commander to assess the potential value of a target. In many cases, this determination is made at higher levels of command – with designated target “sets” provided to tactical commanders. However, it is an inherently flexible process, and even at the lowest levels of command application of the rule relies fundamentally on the judgment of military commanders based on the best information available. The targeting process is therefore designed to rapidly inform the decision-maker of the purported value of target destruction; the means available to achieve such destruction; the potential collateral consequences of such destruction; and the alternatives to target engagement.
What is clear from this history related to this rule is that international law does not condone characterizing as a military objective anything that might offer some slight advantage to an enemy. The intent of the rule is to limit this designation of military objective to military objects and other non-military objects that directly and meaningfully contribute to the enemy’s military capability. Thus, while the concept of “dual use” targets – targets that are used by both civilians and enemy military forces – can indeed justify designation as a military objective, the value to the military of the target must be more than marginal or speculative. Once again, good faith is essential, for only good faith application of this principle provides a barrier to designating everything in enemy territory as a military objective.
Once it is determined that something is a lawful military objective, the second principle of the targeting process must be applied. This principle, often referred to as the principle of “proportionality”, is intended to prohibit an otherwise lawful application of combat power to essentially become “indiscriminate” as a result of the unintended harmful effects. It is this principle that mandates assessment of potential collateral damage and incidental injury resulting from an attack.
It is important to note, however, that although “proportionality” is often used to characterize this principle, Additional Protocol I, which includes the most authoritative codification of these targeting principles under a section of the treaty developed to protect the civilian population, does not include a rule of proportionality. Instead, the principle is a sub-component of the broader prohibition against launching indiscriminate attacks. Such attacks are clearly prohibited by both treaty and custom. However, “disproportionate” collateral damage is only one type of prohibited indiscriminate attack. Others include using a weapon that is not or cannot be directed to a military objective; using a weapon the effects of which cannot be effectively controlled therefore disabling the ability to distinguish between lawful and unlawful objects of attack; treating as one military objective for purposes of bombardment a group of distinguishable objectives in a civilian populated area (saturation bombing).
What is commonly referred to as “proportionality” is in fact best understood as an “imputed” indiscriminate attack. When an attack on an otherwise lawful military objective inflicts excessive collateral damage or incidental injury, it is treated for purposes of the law of armed conflict as indiscriminate, and therefore prohibited. Note that the key term in this analysis is not disproportionate, but instead excessive. This term is used both in Additional Protocol I, and in Field Manual 27-10, which again predated the Protocol when it was amended to include the following provision:
Unnecessary Killing and Devastation
Particularly in the circumstances referred to in the preceding paragraph (the rule of military objective), loss of life and damage to property incidental to attacks must not be excessive in relation to the concrete and direct military advantage expected to be gained. Those who plan or decide upon an attack, therefore, must take all reasonable steps to ensure not only that the objectives are identified as military objectives or defended places within the meaning of the preceding paragraph but also that these objectives may be attacked without probable losses in lives and damage to property disproportionate to the military advantage anticipated.
This extract reflects the “proportionality” standard that is taught and applied to U.S. military legal advisers, and many others around the world (having studied with several IDF legal advisers, it is my understanding that Israel applies this same standard). It emphasizes that commanders bear an obligation to balance probable loss of civilian and damage to civilian property against concrete and direct expected military advantage. But the assessment is ultimately a question of whether the collateral damage or incidental injury will be excessive, a term used in both the U.S. Army Field Manual and Additional Protocol I.
There are many other principles related to the targeting process. These include qualified warning requirements, and the principle that an enemy does not gain immunity from attack by locating military objectives in the midst of civilians or civilian objects (itself a violation of the law, as pointed out by Professor D’Amato). However, it is the relationship between the principle of military objective and the prohibition against indiscriminate attacks – to include those that are considered indiscriminate by imputation – that form the framework of this process, which is essentially a mechanism to ensure distinction between lawful and unlawful objects of attack. It is this framework that operational legal advisers rely on to assist commanders and other military decision-makers struggling through the challenge of real time decisions related to the application of combat power during armed conflict.
Good faith is the essential foundation of this framework. While the law of war undoubtedly includes a degree of flexibility to address unusual battlefield challenges, good faith must inevitably mandate restraint when a potential target lies at the fringe of reasonableness. Any other interpretation has the potential to set the clock back to the unacceptable notion of “total war”, where distinction between an enemy force and an enemy people became meaningless in the name of military necessity. Geoffrey S. Corn is a Professor at South Texas College of Law in Houston. He is also a retired LTC from the Army JAG Corps. His last assignment was as Special Assistant to The Judge Advocate General for Law of War Matters.