The Principle of Distinction in Transnational Asymmetric Warfare: Targeting of Objects
“IN CASE OF DOUBT”: PRESUMPTION OF CIVILIAN OR MILITARY USE
A final question regarding objects is one of presumption: whether, in cases of doubt, an object is presumed to be a military objective or not. For a significant category of objects, API is clear: the presumption is that an object is civilian.
“In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used.”86 The Commentaries note that the provision was controversial even during the negotiations of the protocol. The ICRC had not included the provision in its draft, and the original version proposed to the diplomatic conference was more restrictive. That version would have carved out an exception under which the “presumption of civilian use for objects would not apply in contact areas when the security of the armed forces made such an exception necessary.”87 For example, were fighting taking place in a residential neighborhood and troops coming under fire, the proposed provision might have allowed a military to presume that apartment buildings are military objectives.
These circumstances, of course, occur frequently in transnational asymmetric conflict, and so the debate over this provision demonstrates the relevance of this issue. Even for more conventional conflicts, the differences matter: As some states’ delegations argued, “infantry soldiers could not be expected to place their lives in great risk because of such a presumption and [...] in fact, civilian buildings which happen to be in the front lines usually are used as part of the defensive works.”88
The disagreement over the language at the diplomatic conference also demonstrates why the provision is not viewed as constituting customary law. The US Department of Defense took this view in 1992, explaining that API’s provision on the presumption is “not a codification of the customary practice of nations.”89 The report went on to argue that the provision
causes several things to occur that are contrary to the traditional law of war. It shifts the burden for determining the precise use 86 API art. 52(3).
87 aPi coMMenTary, supra note 23, ¶ 2031.
88 Id. ¶ 2032.
89 Persian Gulf War Report, supra note 83, at 703.
of an object from the party controlling that object (and therefore in possession of the facts as to its use) to the party lacking such control and facts, i.e., from defender to attacker. This imbalance ignores the realities of war in demanding a degree of certainty of an attacker that seldom exists in combat. It also encourages a defender to ignore its obligation to separate the civilian population, individual civilians and civilian objects from military objectives, as the Government of Iraq illustrated during the Persian Gulf War.90
For its part, according to the ICRC, Israel has taken a more moderate tack, accepting the presumption but limiting it, as it “only applies when the field commander considers that there is a ‘significant’ doubt and not if there is merely a slight possibility of being mistaken.”91
Citing US and Israeli state practice, the ICRC notes that the presumption in full does not constitute customary law. Rather, the expectations under customary law are more modest: “[I]n case of doubt, a careful assessment has to be made under the conditions and restraints governing a particular situation as to whether there are sufficient indications to warrant an attack.
It cannot automatically be assumed that any object that appears dubious may be subject to lawful attack.”92 The customary standard, then, is a test of “sufficient indications to warrant an attack” and not of mere “doubt.”
Interestingly, the Tallinn Manual sidesteps the question of certainty, noting only that “a determination that [the object is being used to make an effective contribution to military action] may only be made following a careful assessment.”93
90 Id.
91 See icrc cuSToMary law, supra note 4, R.10 (citing the Report on the Practice of Israel from 1997).
92 Id. But see Tallinn Manual, supra note 5, R. 40 cmt. 4 (explaining that the majority in the experts group interpreted the ICRC Customary Law Study as “seem[ing]
to support the position that Article 52(3), especially in light of its reaffirmation in Article 8(3)(a) of the Amended Mines Protocol, is customary international law).
93 See id. R. 40. Note that the rule applies only to the criterion of “use” (i.e., not
“nature,” “location,” or “purpose”) and to the element of “effective contribution to military action,” not other elements of the determination of whether an object is a military objective. See id. R. 40 cmt. 3.
CONCLUSION
As discussed through the course of this chapter, issues of targeting civilian objects arise in an array of contexts in transnational asymmetric conflicts.
The basic principle, as outlined in API Articles 48 and 52(2), is a matter of consensus and considered customary law. Still, questions about distinction among objects arise, often in contexts relevant to transnational asymmetric conflict.
For dual-use objects, those that have both civilian and military functions, the object is considered a “military objective” if it meets the relevant criteria—
whatever other civilian uses or purposes it may have. That said, in such cases questions of proportionality arise frequently. In applying the proportionality, a question particularly relevant to dual-use infrastructure is whether and in what way the attacking party must consider reverberating effects—those not directly caused by the physical damage to the site—when measuring incidental damage.
Distinction questions likewise arise in the controversies over “war-sustaining economic objects” and political or psychological objects. The US initiative to broaden the definition of “military objective” to include “war-sustaining economic objects” has gained little traction, even among other militaries. The law is also moving toward a narrow definition of “definite military advantage” with regard to political or psychological objects, where the law is best developed regarding the targeting of broadcasting facilities.
Importantly, in all attacks on objects, the attacking party must not only satisfy the principle of distinction but also of proportionality. Especially for dual-use objects, proportionality emphasis is extremely relevant. To that principle of proportionality, we now turn.