Challenges in the Interpretation and Application of the Principle of Distinction During Ground Operations in Urban Areas.
|Special Issue: The Law of Armed Conflict
TABLE OF CONTENTS I. INTRODUCTION 807 II. OPERATIONAL CHALLENGES AND COMMON 811 PRACTICES IN URBAN OPERATIONS A. Masking 815 B. Firing Warning Shots 816 C. Breaching Structures 817 D. Maneuvering with Heavy Machinery 818 III. LEGAL QUESTIONS AND CHALLENGES 819 A. The Notion of "Attack" 820 B. The Definition of "Military Objectives" 822 C. The Prohibition against Indiscriminate 823 Attacks D. The Applicability of Article 23(g) 824 of the Hague Regulations IV. CONCLUSION 825 I. INTRODUCTION
When we talk about military operations and the Law of Armed Conflict (LOAC)--also known as International Humanitarian Law (IHL)--we usually think about targeting, and what we normally have in mind during such discussions are aerial attacks. We put much less focus on ground maneuvers and the methods they involve, although they raise some very interesting legal issues. This is understandable, because the revolution in military affairs, (1) together with the increased use of platforms such as drones and "smart" precision weapons, (2) has led to a major change in the nature of warfare: a modern Western military can nowadays do much of the fighting from afar.
One notable result of this state of affairs has been a change in the focus of international lawyers--the law of targeting has become the main area of interest for scholars and practitioners alike, and questions such as "What is a military objective?"; "What is direct participation in hostilities?"; "What precautions can feasibly be taken before striking a target?"; and "How do we apply the rule of proportionality when conducting attacks?" have largely come to occupy LOAC discourse.
However, ground operations in urban areas, especially when conducted in high-intensity conditions (3) (hereinafter Urban Operations), are becoming increasingly common again for states around the world, and especially so for those fighting in places like Syria, Iraq, Lebanon, Gaza, Afghanistan, Georgia, and across Africa. (4) It is therefore important to revive, revisit, and expand the discussions concerning Urban Operations and the legal challenges they raise.
Urban Operations are certainly different than other types of operations. They require soldiers to maneuver slowly and gradually, relying first and foremost on rifles, grenades, tanks, and artillery. If the maneuvering takes place (as it often does) in areas still controlled by the adversary, those who are maneuvering generally face a significant operational disadvantage: ambushes in close-quarter combat, snipers, booby traps, antitank missiles, explosive ordnances, and a significantly enhanced "fog of war" are just a few of the challenges they must struggle with. (5) Most importantly for lawyers, however, these kinds of operations raise some intriguing questions about the way we understand some of the most basic rules of LOAC.
This Article, based on presentations given at the 11th Annual Minerva/ICRC International Conference on International Humanitarian Law in November 2016, and the 2nd IDF International Conference on LOAC in April 2017, focuses on the application of the principle of distinction. To this end, Part II begins by outlining four examples of military practices common to militaries around the world that are considered essential in Urban Operations: masking, firing warning shots, breaching structures, and maneuvering with heavy machinery. (6) A common feature of all these practices is that their objective is not the destruction of an object or the killing of a person but the achievement of a specific military benefit as an integral part of carrying out the military mission (be it conquering a certain territory, clearing an area of enemy forces, or simply advancing forward). Another common feature of these practices--especially crucial for lawyers--is that they often involve some damage or harm to objects or persons that are not necessarily lawful targets.
Part III then surveys the legal questions raised by the four practices and considers them through several prisms: the meaning of "attack" under LOAC; the notion of "military objective"; the prohibition on indiscriminate attacks; and the prohibition on destroying the enemy's property unless imperatively demanded by the necessities of war. The analysis in this Part uses Additional Protocol I to the Geneva Conventions (7) (hereinafter Additional Protocol I, or API) as a point of reference. As is well known, not all countries are parties to API, (8) and there is significant disagreement regarding the customary nature of some of its provisions. (9) Nevertheless, as the majority of states in the world are party to API, and since its provisions regarding the principle of distinction are often referred to, one should strive to reconcile these provisions with common practices that have been and are still being employed by militaries around the world. Accordingly, Part III proceeds under the assumption that practices which have been universally employed before, during, and after the negotiation of API cannot be unlawful as a matter of customary international law, since custom can only emerge following the accumulation of general practice and opinio juris. (10) Part IV concludes.
OPERATIONAL CHALLENGES AND COMMON PRACTICES IN URBAN OPERATIONS
More than 2,500 years ago, the famous Chinese general Sun Tzu declared that "the worst policy is to attack cities. Attack cities only when there is no alternative." (11) The same advice is reflected in the doctrine of numerous armies and in the theories of military strategists. (12) The reason is obvious: the urban battlefield generally consists of man-made constructions intertwined with a high population density, which gives the defending force--that is well-acquainted with the area and able to thoroughly prepare for the arrival of the attacking force--a decisive military advantage. (13)
Buildings, for example, can provide cover and concealment, limit the fields of observation and fire, and make it harder for the attacking force to utilize mechanized or armored forces. Fighting in the urban terrain also means that there are multiple surface areas from which the enemy may direct attacks: for the infantry soldier moving through an urban neighborhood, adversaries may attack from within and from on top of buildings, as well as from subterranean positions. (14) Urban infrastructure, moreover, allows the defending forces to predict, or even intentionally channel, the movement of advancing forces, since the options for movement may be restricted to pre-existing roads and other routes. For instance, adversaries may lay mines, improvised explosive devices, and other explosives, as well as prepare ambushes, on the expected routes of travel. Additionally, conventional air-strikes, close-air support, and the use of certain weapons are of limited effectiveness in Urban Operations. (15) It is therefore not surprising that Urban Operations regularly involve higher casualty rates to the attacking force, (16) heavy damage to the surroundings, (17) and high civilian casualties. (18)
Despite entreaties to avoid Urban Operations, it appears that the number of armed conflicts being fought in urban terrain is on the rise (19) and that armies are increasing their preparation and training for such fights. (20) Furthermore, several researchers have concluded that current military doctrines are simply insufficient for dealing with current Urban Operations (21) and have recommended developing new doctrines and capabilities for dealing with their varying conditions. (22) Consequently, it is becoming exceedingly crucial to discuss the legal aspects involving such operations in order to aid in finding solutions to current challenges in accordance with the LOAC. As a way of exemplifying these challenges, four military practices prevalent in Urban Operations will now be discussed.
Throughout history, militaries have used masking tactics to confuse and deceive their enemies, (23) providing commanders with additional means to meet the imperatives of the battle. Such tactics were used to degrade the enemy's ability to identify the movement of forces, conceal friendly forces, deceive the enemy into thinking forces were in a different location, and degrade or outright defeat infrared and laser systems used to designate targets or identify tanks. (24)
The use of masking tactics is especially crucial during Urban Operations, when there is no alternative but to cross "kill zones," such as streets, alleys, and parks, which are natural spaces to be exploited by the enemy. In such cases, the area must be crossed as quickly as possible, usually only after specific actions have been applied, including deploying smoke screens from hand grenades or from shells fired from mortars or artillery platforms. (25)
While masking means are not typically directed at civilians or civilian structures, using them in urban terrain likely entails some damage to the surroundings or to persons in the area. While effects vary in accordance with the weapon and munitions used, it is common for them to cause some harm to nearby persons, as a result of their kinetic effects; to cause illness or temporary difficulties with breathing, especially if the person exposed to the smoke is near the source of emission or if the smoke penetrates relatively closed structures; and even to produce embers or ash that may cause burns upon contact. Masking therefore is an activity that may cause damage to objects or persons not defined as lawful targets.
Firing Warning Shots
Warning shots are shots fired with the intent of warning someone of a future action and bringing them to act in a certain way, without directly harming them. (26) In Urban Operations, the use of warning shots can be instrumental in saving civilian lives. (27)
A common scenario where warning shots are employed is one where a military force has established a roadblock in a city in order to control unidentified traffic, and an unknown...
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