Targeting

• Author: Michael Bothe
• Pages: 173

T he international legal rules which determine whether certain targets may or may not be lawfully attacked are based on one of the pillars of the international law applicable in armed conflicts, namely the distinction between the civilian population on the one hand and the military effort of the State on the other. The development of this distinction is a historical and cultural achievement of the age of enlightenment. This fact needs to be emphasized when there is a temptation to consider certain consequences of this distinction as too cumbersome for what is supposed to be a necessary military operation.

Distinction In the centuries before the enlightenment, war was often, and then lawfully so, conducted in a way that made the 'civilian' population suffer very drastically.1 It was in particular the philosopher Jean Jacques Rousseau who, in the second half of the 18th century, developed the idea that war did not constitute a confrontation between peoples, but between States and their rulers ('sovereign's war').2 This principle limited both the group of persons entitled to perform acts harmful to the enemy (combatants) and the scope of persons and objects which may be the target of such acts (combatants/military objectives).

In the 18th and early 19th century, this distinction corresponded to the reality of the conflicts of those days. It was possible and practicable to keep 1. Fritz Miinch, War, Laws of, History, in 4 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 1386 et seq. (Rudolf Bemhardt ed., 2000).

2. WILHELM GREWE, THE EPOCHS OF INTERNATIONAL LAW 267 (2000).

   military activities well apart from the day-to-day life of the citizens, unless such unusual things as a levee en masse occurred. It was the technological developments of the late 19th and early 20th century which created the fundamental challenge to this distinction, namely the development of long-range weapons, in particular air warfare. The first rather comprehensive reaction to this challenge was an attempt at international rule making, the so-called Hague Rules of Air Warfare of 1923,3 drafted by a group of experts based on a mandate given by the 1922 Washington Conference on Disarmament. These rules constituted a confirmation of the old distinction and developed its concrete application to the new situation. Rules elaborated by scientific bodies such as the International Law Association were formulated along the same lines.4

   The great practical challenge to the traditional principle of distinction occurred during the Second World War. There were so many violations of the traditional principle that it was quite appropriate to ask the question whether that rule had survived or whether it had become obsolete.5 The biggest challenge to the traditiofial rule of distinction was the development of nuclear weapons. It is, thus, necessary to critically analyze the attitude which States and other relevant actors adopted after the war in relation to that rule.

   State practice immediately following the Second World War was somewhat puzzled and puzzling. The definition of war crimes in the Statute of the International Military Tribunal is based on the assumption that the rule of distinction was applicable ('wanton destruction of cities, towns or villages, or devastation not justified by military necessity'). But neither the judgment of the International Military Tribunal nor the judgments of the American military courts really address the principle of distinction as a limitation on the choice of targets for bombardments.6 Furthermore, there was a kind of resounding silence of States in relation to that rule. The Geneva Conventions of 1949, which in many ways clarify and develop the law taking into account the experience of the Second World War, do not address the question, yet most 3. DOCUMENTS ON THE LAWS OF WAR 139 (Adam Roberts and Richard Guelffeds., 3d. ed.

   2000).

4. Draft Convention for the Protection of the Civilian Population Against New Engines of War, adopted by the 40th Conference of the International Law Association, Amsterdam 1938. THE LAW OF ARMED CONFLICTS: A COLLECTION OF CONVENTIONS, RESOLUTIONS AND OTHER DOCUMENTS 223 (Dietrich Schindler &Jiri Toman eds., 3d ed. 1988).

   5; For a brief analysis of the practice, see ERIK CASTREN, THE PRESENT LAW OF WAR AND NEUTRALITY 402 et seq (1954).

6. COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949, ~ 1828 (Yves Sandoz et al. eds., 1987).

   writers were loath to accept that the bombing practices of the war had changed the law.7

   In 1956, the International Committee of the Red Cross (ICRC) made an attempt to have the question of the validity of the principle of distinction clarified by what was meant to become the Delhi Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War.8 This attempt was based on the assumption that the traditional rule of distinction was still valid, but it failed. It became, so to say, the victim of the development of nuclear weapons or, more precisely, of a dispute concerning their legality. The military establishment of the day, it appears, remained completely outside the legal discourse concerning the legality of those nuclear weapons, of which the resolution of the Institut de Droit International of 19699 concerning the prohibition of weapons of mass destruction is a lively testimony.

   That insulation of the legal discourse disappeared when the issue of the reaffirmation and development of international humanitarian law came on the political agenda as a consequence of the debate about the conduct of the Vietnam War and the issue of 'human rights in occupied territory.'10 In 1968, the United Nations General Assembly reaffirmed the traditional principle in its resolution 'Respect for Human Rights in Armed Conflicts,' which declared: 'That it is prohibited to launch attacks against the civilian population as such; That distinction must be made at all times between persons taking part in the hostilities and members of the civilian population....'1

   The negotiations from 1974 to 1977 that led to the Additional Protocol I to the 1949 Geneva Conventions12 and the reactions of States, including major military powers, after the adoption of the Protocol in 1977 are clearly based on the assumption that the basic content of the rule of distinction is part of customary international law. This is, in particular, reflected in the formulation of the declarations made by the United States and the United Kingdom on the occasion of the signature of the Protocol. In respect of so-called 7. CASTREN, supra note 5, at 200 et seq.

8. THE LAW OF ARMED CONFLICTS, supra note 4, at 251.

9. The Distinction between Military Objectives and Non-Military Objects in General and particularly the Problems Associated with Weapons of Mass Destruction, Resolution adopted by the Institut de Droit International at its session at Edinburg on September 9, 1969. Id. at 265.

10. Michael Bothe in MICHAEL BOTHE, KARL PARTSCH AND WALDEMAR SOLF, NEW RULES FOR VICTIMS OF ARMED CONFLICTS 2 (1982).

11. G.A. Res. 2444, U.N. GAOR, 23rd Sess., Supp. No. 18, at 50, U.N. Doc. A/7128 (1969).

12. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflict, June 8, 1977, 1125 U.N.T.S. 3,

    DOCUMENTS ON THE LAWS OF WAR, supra note 3, at 422 [hereinafter Protocol I].

    non-conventional weapons, they deny that the 'new rules' of the Protocol apply to those weapons, the clear implication being that the 'old,' i.e., customary law rules do apply. It is made clear that the principle of distinction figures among these old rules.'3

    In addition, a legal discourse developed which now included military lawyers dealing with practical implications of this rule. Military lawyers explained and continued to explain that major bombing campaigns like those during the Vietnam14 and 1991 Persian Gulf15 wars were indeed conducted on the basis of these rules. Thus, it can safely be concluded that the rule has survived all major challenges; that it is...