Targeting State and Political Leadership in Armed Conflicts.
Author | Jachec-Neale, Agnieszka |
Position | Special Issue: The Law of Armed Conflict |
TABLE OF CONTENTS I. INTRODUCTION 932 II. TARGETING LEADERSHIP 935 A. Commanders-in-Chief 937 B. Ministers of Defense/Defense Secretaries 943 C. Members of the Government 944 D. Political Party Leaders 945 III. TARGETING INFRASTRUCTURE ASSOCIATED WITH 947 LEADERSHIP A. Requirements of the Definition of 947 Military Objectives B. Functions of the Buildings: Ministry 950 of Defense C. Use/Purpose: Objects Used or 952 Intended to Be Used by CiCs, Defense Secretaries, Other Members of the Government, or Members of Political Parties D. General Affiliation of the Objects 954 IV. CONCLUSIONS 955 I. INTRODUCTION
Whilst much research and debate in the law of armed conflict has, in recent years, concentrated on the issue of when and how people may be subject to lawful attack, (1) far less consideration has been given to the question of if, and if so, when, physical objects associated with certain human activity can be regarded as lawful military objectives. (2) It may partly be due to the fact that we have a well-established rule in the law of armed conflict which stipulates that an occurrence of human activity described as "military use" is likely to render such physical objects as legitimate targets in the given circumstances. (3) Quintessential in such an assessment is an identification of the qualifying "use" and the required temporal scope of such a use.
However, in relation to some objects, such an assessment will prove to be far more challenging. These targets include places and infrastructure associated with the direction of the conduct of armed conflict including the control over armed forces by the civilian political leadership. The assessment of such objects raises some fundamental questions about the way in which they satisfy the criteria attached to the definition of military objectives and specifically its first element of "effective contribution to military action" by "use" or other criteria. (4) Such objects may satisfy the definition of military objectives if they are used by combatants or by other individuals for military purposes. In case of the objects used by non-combatants, the activity-centered analysis that is an evaluation of activity undertaken in given locations and buildings will determine the object's satisfaction of the first element of the definition. (5) The question then becomes relevant as to what are the boundaries of activity of civilian political leadership that can be deemed as having military purposes. Similarly, when the objects are used by the combatants for activities related to the conduct of hostilities, such targets are likely to be legitimate. There is also an argument that a use of objects by combatants irrespective of the specific military purposes would equally and in all circumstances render them lawful targets. The question arises, though, whether a similar association of buildings or places with a non-combatant politician, on account of their war-fighting powers or functions, may be considered sufficient to satisfy the requirements of the test.
Recent conflicts provide a plentitude of examples in which targets, namely those associated with leadership exercising command and control over armed forces and other functions or powers vital to the conduct of military operations, have been attacked.
Facilities associated with Saddam Hussein and the Ba'ath Party in Iraq were frequently attacked both in 1991 and in 2003. In 1991, they included a variety of leadership-related national level facilities such as the Ministry of Justice, the Iraqi Central Bank, and the Ministries of Industry, of Planning, and of Information. (6) In addition to these, in 2003, the Internal Security Agency, the Ba'ath Party headquarters, Presidential Secretariat, Presidential Bunker, Dora Farm, and Baghdad Emergency Forces, as well as offices and living quarters of Hussein's guards, were engaged. (7) During the 1999 NATO intervention in Kosovo, Slobodan Milosevic's residence and the Serbian Socialist Party headquarters were subjected to direct and indirect attacks. (8) In April 2011, United Nations (UN) forces fired at the presidential palace believed to be housing Cote D'lvoire's president, Laurent Gbagbo. (9)
Unprecedented interest in targeting leadership facilities could be, in part, explained by progressive developments in military doctrine in recent years. Enemy leadership and associated infrastructure have become regarded as one of the strategic and operational centers of gravity. (10) This trend in military thinking has been transplanted into operational targeting, with numerous targets being attacked during the past few conflicts, as mentioned above. Whilst the targeting and attacking of such objects progressively increase, the uncertainties regarding their qualification as military objectives remain.
This Article addresses some of the issues pertinent in the consideration of persons and objects used or associated with state and political leadership as lawful targets. The Article begins by examining the status of state leadership on various levels of authority, both in their individual capacity and as a part of collective bodies, in light of their position within the government and the functions allocated to them. Following from there, consideration will be given to the determination of the status of the members of political parties from the perspective of the application of the principle of distinction. This will complete the first Part of the text.
The following Part will focus on physical objects associated with the state and political party leaderships. Here it will be necessary to introduce the constituent requirements of the definition of military objectives first. This is due to the fact that, while both persons and objects can be deemed military objectives, the definition of military objective will only apply to objects such as infrastructure, buildings, places, equipment, and so on. In this Part, consideration will be given to such objects from the perspective of their relationship to figures of authority in a broader sense of affiliation and in the more concrete aspect of actual use by these individuals. This Part explores intricate aspects of the relationship between the position or functions of the persons in leadership positions and the determination of lawfulness of the targets associated with the individuals. However, this will only be possible after looking at the parameters of the lawfulness of targeting persons in positions of leadership both in the governmental structures and in the highest ranks of political parties.
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TARGETING LEADERSHIP (11)
In predominantly democratic political systems, the executive, judiciary, and legislative organs tend to be vested with various competencies of control over armed forces. Civil control over armed forces is usually seen as an attribute of stable democracy, but it is certainly not confined to such a system. There is no single model of such a setup and the degrees of control vary, as well. The ultimate constitutional arrangement defining an adopted approach will depend on the political system of the individual state as well as its historical and cultural context.
Civil control over armed forces can take the form of direct or indirect management, command, and supervision by state organs. Direct control may involve decisions that are distinctively "military" in character or functions related to or affecting the prosecution of armed conflicts. Examples of such competencies may include the decision about deployment and re-deployment of armed forces into theater, decisions about belligerent reprisals, and targeting decisions requiring the highest level of authorization. Democratic control and political direction, which are linked to the prosecution of hostilities during armed conflicts, can be undertaken by a President, a Prime Minister, a whole cabinet of ministers, or even whole parliaments. The position of decision-makers involved in such decisions in the military-oriented political structure as well as how directly and effectively they are involved in making decisions about the prosecution of armed conflicts may define the degree to which they are regarded as legitimate targets during armed conflicts. In other words, the position of the the decision-maker vested with the relevant function as well as the scope of the associated function are two key factors subject to this consideration.
The determination of whether a leader can be seen as a lawful target rests on the application of the fundamental principle of distinction. (12) In line with its precepts, distinction will always have to be made between military objectives and civilians or civilian objects. "Military objectives" may include both human beings and physical objects recognized as lawful targets. In international armed conflicts, combatants and civilians directly participating in hostilities constitute two categories of persons who would be classed as military objectives. (13) In other words, the designation of these categories could be respectively status- and conduct-based. In non-international armed conflicts, "combatancy" does not arise, but the members of either the state's armed forces or organized armed groups are considered legitimate targets.
In addition, a determination of the scope of the individual's engagement in hostilities needs to be undertaken. The notion of "direct participation in hostilities," which is inherently difficult to interpret and apply in the context of either type of armed conflict, has received more attention and elaboration in recent years. In 2009, the International Committee of the Red Cross (ICRC) published the Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (Guidance), which hugely assisted in clarifying several aspects of this notion. (14) While the Guidance does not contain any specific findings with respect to state and political party leaders, it may prove...
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