“DEFINITE MILITARY ADVANTAGE”

The concept of distinction among objects is rooted in customary law that evolved over the past two centuries.¹ It also has been codified in Additional Protocol I, whose Articles 48 and 52 limit targeting to military objectives only.² The basic principle of distinction is set out in API Article 48: “In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”³ This is recognized as customary law.⁴

By consensus, the definition of “military objective” in API Article 52(2) is also regarded as expressing customary law.⁵ According to the Protocol, military objectives are defined as 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.”⁶ A “civilian object,” in turn, is any object other than a “military objective.”⁷ This dichotomy—between

“military objectives” and “civilian objects”—is the fundamental concept.

As for the definition of “military objective,” the provisos of “effective contribution to military action” and “definite military advantage” (part of

1 Horace B. Robertson, Jr., The Principle of the Military Objective in the Law of Armed Conflict, 8 u.S. a^ir f^orce a^cad. J. l^eGal S^Tud. 35, 42-46 (1997).

2 API arts. 48, 52.

3 API art. 48.

4 See, e.g., inTernaTional huManiTarian l^aw, Rul e 7 (Jean-Mar ie Henckaert s &

Louise Doswald-Beck eds., 2005) [hereinafter ICRC c^uSToMary l^aw S^Tudy].

5 T^allinn M^anualonThe inTernaTional l^aw a^PPlicaBleTo c^yBer w^arfare R.

38 cmt. 1 (Michael N. Schmitt, ed., 2013) [hereinafter T^allinn M^anual]; Israel Ministry of Foreign Affairs, “Responding to Hizbullah Attacks from Lebanon:

Issues of Proportionality (July 25, 2006) (“The generally accepted definition of

“military objective” is that set out in Article 52(2) Additional Protocol I of the Geneva Conventions.”); Michael N. Schmitt, The Principle of Discrimination in 21st Century Warfare, 2 y^ale h.r. & d^ev. l.J. 143, 148 (1999).

6 API art. 52(2).

7 Id. art. 52(1); see also T^allinn M^anual, supra note 5, R. 38; Gabriella Blum, The Dispensable Lives of Soldiers, 2 J. l^eGal a^nalySiS 115, 130 (2010) (“Specifically, the Protocol makes no distinction between ‘military objects’ and dual-use objects…;

instead, it treats all objects as potentially dual-use.”).

the definition above) limit the objectives that may be sought. In principle, these two phrases set separate standards that must each be met; in practice, meeting one standard in most cases implies meeting the other.⁸ Consistent with other aspects of IHL, a party may not target an object merely because it contributes to civilian morale or because its destruction would achieve a political objective, a topic discussed more in depth in this chapter’s section on psychological objects.⁹ A related question, to what extent deterrence constitutes a legitimate military advantage, is discussed in Chapter 4. Rather, the “effective contribution” and “definite military advantage” language underline the nexus that must exist with overcoming the adversary’s military.

(Some view “war-sustaining economic objects” as military objectives, as noted below. For these commentators, the nexus is that which must exist with the wider strategic aims of the party in the armed conflict, not only overcoming the adversary’s military).

Examples may help to illustrate the point. Scholars disagree on whether an indirect military contribution—such as a storage depot far from the battlefield or some transportation infrastructure—is sufficient to be considered “effective.”¹⁰ A hypothetical future “contribution” does not qualify as “effective”; a civilian airfield incapable of launching military aircraft cannot be targeted because it might one day be transformed for military use. On the other hand, if there is evidence of intent to so transform it in the future, then the airfield might qualify as a military objective.¹¹ As for the second prong, the adjective

“definite” describes the military objective in order to exclude objectives that may be speculative only.¹² A further limitation is the language in API about 8 See Alexandra Bolvin, The Legal Regime Applicable to Targeting Military Objectives in the Context of Contemporary Warfare 15-16 (2006), available at http://www.

geneva-academy.ch/docs/publications/collection-research-projects/CTR_objectif_

militaire.pdf. While the report advocates testing the two standards separately, its reasoning makes clear that satisfying one standard nonetheless means, in most cases, satisfying the other standard.

9 T^allinn M^anual, supra note 5, R. 38 cmt. 23; Marco Sassòli, Legitimate Targets of Attacks Under International Humanitarian Law 3 (2003). For a more in-depth discussion of the concept of “military advantage,” see Chapter 4.

10 See id. at 2-3; hPcr M^anualon inTernaTional l^aw a^PPlicaBleTo a^irand M^iSSile w^arfare R. 24(1) (2009), available at http://ihlresearch.org/amw/HPCR%20 Manual.pdf [hereinafter hPcr aMw M^anual].

11 hPcr aMw M^anual, supra note 10, R. 24(3).

12 See T^allinn M^anual, supra note 5, R. 38 cmt. 20; Sassòli, supra note 9, at 3.

Chapter 5 will introduce the type of military advantage evaluated for purposes of

“the circumstances ruling at the time.” For example, “a civilian air traffic control system used for military purposes while a damaged military system is being repaired qualifies as a military objective.”¹³ Nonetheless, “once the military system is restored and the civilian system is returned to exclusively civilian use, it no longer qualifies as a military objective (absent apparently reliable information that allows the attacker to reasonably conclude that the enemy will use it again in the future for military purposes).”¹⁴

This concept of distinguishing among objects is, of course, often hard to implement. Discerning whether an object is “military objective” or

“civilian object” is often not straightforward. This is particularly true for

“dual-use” targets—which often include power plants, bridges, and other infrastructure, but can also include any objects—that meet the criteria for a “military objective” but also have a civilian function.¹⁵ Some claim it is likewise true for “war-sustaining economic objects” (that generate funds used to sustain a war effort) and for political and psychological objects (that, while not directly part of providing arms for the fight, can affect the likelihood of a party’s success in armed conflict). Finally, parties to an armed conflict confront the question of certainty: how certain a party must be of an object’s military nature in order for its targeting to be permissible.

All of these areas have implications for all states involved in conflicts with non-state actors across their borders. The targeting of objects is often one of the most hotly contested arenas for debating the military strategies of regular armies in asymmetric warfare. Increasingly, non-state actors have the trappings of governments, complete with factories and ports (“war-sustaining economic objects”) and broadcasting facilities (political and psychological objects). In no area are the actions of regular armies more contested, though, than on the question of dual-use objects, infrastructure that serves both

the standard of proportionality. That military advantage is “concrete and direct,” as opposed to the “definite” military advantage test for civilian objects. For the most part, the two are viewed as synonymous. Some claim that the “definite” military advantage standard is broader, permitting an advantage to be considered a military advantage even if it requires “other intervening variables, such as the anticipated success of another military operation which is being conducted elsewhere.” Bolvin, supra note 8, at 43.

13 T^allinn M^anual, supra note 5, R. 38 cmt. 21.

14 Id.

15 It should be emphasized that “dual-use” is not a legal term but a functional one.

military and civilian needs. For that reason, an understanding of the law and how its logic operates is key.

These questions (of dual-use objects; war-sustaining economic objects;

political and psychological objects; potential military objectives, and the presumption of an object when in doubt) are addressed in the pages that follow.