A recently decided case from the International Criminal Tribunal for the former Yugoslavia ap-pears to have adopted a similar line of reasoning to Schmitt’s. The basic issue in the case was whether Gotovina and his forces were indiscriminate in their attacks during the conflict in the former Yugoslavia. The allegation was that Gotovina’s use of artillery in populated areas such as the city of Knin was indiscriminate.
In the case, the Trial Chamber adopted a post-hoc 200-meter standard when analysing Go-tovina’s use of artillery.17 In the Trial Chamber’s view, any impact that was more than 200 me-ters from a known stationary military objective indicated an attack that was not deliberately targeted at a military objective, and hence, indiscriminate. In his appeal, Gotovina raised numerous issues, including the arbitrary designation of a 200-meter standard, the exclusion of the possibility of striking targets of opportunity including mobile targets, and the more general approach of the Trial Chamber in determining the violation of the law simply based on the post-hoc impact sites.
The Appeals Chamber found that each of these findings by the Trial Chamber was in error and that it required a de novo review by the Appeals Chamber with regard to the evidence. Further, the Appeals Chamber found that ‘after reviewing relevant evidence, the Trial Chamber’s errors with respect to the 200 Meter Standard and targets of opportunity are sufficiently serious that the conclusions of the Impact Analysis cannot be sustained.’18
The appellate decision in Gotovina clearly rejects the arbitrary standard of 200 meters advo-cated by the Trial Chamber, but does not explicitly reject the idea that some rate of error would factor into a decision on discrimination. It can be argued that the issue in Gotovina focused more on Article 51(4)(a), which deals with a commander’s exercise of discretion, but it is also reasonable to argue the same reasoning by analogy when discerning the limits of Article 51(4) (b), particularly when read in combination with Article 51(5)(b).
17 ICTY, Prosecutor v. Gotovina et al., Case No. IT-06-90-T, Trial Judgment, 15 April 2011).
18 ICTY, Prosecutor v. Gotovina et al., Case No. IT-06-90-A, Appeal Judgment, 16 November 2012, para.
67.
Combination of 51(4)(c) and 51(5)(b)
As opposed to both Article 51(4)(a), which is about the exercise of discretion by a commander in his targeting decision, and subsection (b), which is about a commander’s weaponeering decision, subsection (c) is designed to account for weapons that are legal, unless used in a particular way that puts them in violation of the law. Thus, a commander cannot use an oth-erwise lawful means, or select an othoth-erwise lawful weapon, and then employ it in a manner that does not discriminate.
Again, the Commentary provides interesting insight into this provision. In discussing subpara-graph (c), the Commentary notes that there was some intense discussion about this provision and then states:
‘Many but not all of those who commented were of the view that the definition was not intended to mean that there are means or methods of combat whose use would involve an indiscriminate attack in all circumstances. Rather it was intended to take account of the fact that means or methods of combat which can be used perfectly legitimately in some situations could, in other circumstances, have effects that would be contrary to some limitations contained in the Protocol, in which event their use in those circum-stances would involve an indiscriminate attack.’19
Gisel, in his previously mentioned article, provides a very clear discussion of limitations on specific weapons that have been prohibited by various Treaty Parties, such as anti-personnel landmines, booby traps and cluster munitions.20 He argues that these and other similar weap-ons cannot ‘be directed at a specific military objective as required by IHL’.21 Alternatively, subsection (c) focuses on weapons that are not otherwise illegal, but may become so through their specific use. For the purpose of this presentation, the specific use is in urban environ-ments.
Therefore, if we agree that Article 51(4)(c) prohibits otherwise lawful weapons when used indiscriminately, it is now necessary to determine what an indiscriminate use of an otherwise lawful weapon would be. Again from the commentary:
‘(…) the power of the weapons used can have the same consequences [i.e., be indis-criminate]. For example, if a 10-ton bomb is used to destroy a single building, it is
19 Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions, op. cit.
20 Laurent Gisel, The Use of Explosive Weapons in Densely Populated Areas, op.cit.
21 Ibid.
inevitable that the effects will be very extensive and will annihilate or damage neigh-bouring buildings, while a less powerful missile would suffice to destroy the building.’22
This reasoning might also apply to using weapons in urban areas. Insofar as the ICRC com-mentary reflects the intent of the State Parties, it seems clear that they felt that lawful weapons could be indiscriminate in some circumstances. Accordingly, at least one of those contemplated circumstances might include use of a weapon that, while effectively destroying its intended target, did so in a way that necessarily damaged non-targeted buildings around it. There is textual support for this idea in the subsequent paragraph of Article 51.
The example of a non-discriminating attack in Article 51(5)(b) helps us apply this to urban areas. Article 51(5)(b), often quoted as supporting the idea of proportionality and directly referenced to Article 57 in its origin, describes an indiscriminate attack as one that ‘may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.’23
The Commentary adds:
‘In order to comply with the conditions, the attack must be directed against a military objective with means which are not disproportionate in relation to the objective, but are suited to destroying only that objective, and the effects of the attacks must be limited in the way required by the Protocol; moreover, even after those conditions are fulfilled, the incidental civilian losses [p.626] and damages must not be excessive.’24
In other words, in reading Articles 51(4)(c) and 51(5)(b) together, a targeted attack that hits its objective, but still causes excessive incidental injury or death will be considered indiscrimi-nate, despite the otherwise lawful nature of the attack. In urban areas, this, of necessity, acts as a greater constraint than in non-urban areas. A weapon with a circular error probability of 800 feet is more likely to be indiscriminate, due to excessive incidental death or injury, when used in an urban environment than when used in a non-urban environment.
22 Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions, op. cit., paragraph 1963.
23 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), Art. 51.5, opened for signature Dec. 12, 1977, 1125 U.N.T.S. 3.
24 Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions, op. cit., paragraph 1979.
Returning to the original question of whether the law now imposes on an attacker a proscrip-tion on particular weapons in populated areas, even if those weapons would be otherwise legal, the answer must be yes. As to the question whether International Human Rights Law imposes a standard of precision such that certain weapons are indiscriminate per se if used in urban areas, the answer must be no, not per se.
The answer is no, not per se, because the standard imposed by IHL is not a solely objective standard. Consequently, a use of 200 meters or 3,000 feet as the gauge of discriminatory at-tacks is not a matter of conventional or customary law. Rather, it is true as a matter of law that when a commander uses any weapon with any CEP, that commander must be more careful in urban areas than she or he would have to be in non-urban areas, in order to not violate the principles of discrimination.