– IDENTIFYING MILITARY OBJECTIVES IN CITIES

Following these three presentations, the audience raised questions on the following main is-sues:

1. The targeting of overground and underground infrastructures in ur-ban areas

A participant shared two comments with regard to urban targeting. In his opinion, when an entire building may be taken down, the attack is not only affected by the uncertainty regard-ing where the military action is takregard-ing place in the construction, notably in circumstances where there are several places or flats in the same building used for military purposes. Con-cerning the example given by the panellist, several floors were used and it was impossible to target them without making the whole building collapse. In such circumstances, the damage to civilian property inside the building must be systematically taken into account because such an action may not be proportionate in some circumstances. Secondly, in the case where a house above a tunnel may be attacked, but the latter has no entry or exit inside the house itself, the house is not regarded as a target but only the tunnel beneath. If one finds out where the tunnel is going and a place where there is no house above it, that particular place will be targeted. Nonetheless, in many cases, you simply do not know and there is the option of going through the house to reach the tunnel. In any case, the military objective in such a context is the tunnel itself and not the house above it.

In respect of tunnels and houses overground, the panellist stressed that if the military objec-tive is actually the tunnel, then perhaps, one could consider using different methods than going through the house and bombing it to destroy the tunnel. For example, using radar de-vices to identify entrances and exits of tunnel structures, as well as filling the entrances and, therefore, sealing off access to it, might be conceivable options.

2. The destruction of military objectives

A participant raised a question as to whether it is possible to destroy an object under Article 23(g) of the Hague Regulations without that object being a military objective under Article 52(2) of the 1977 First Additional Protocol. And in such cases, would the panellist say that it is indiscriminate?

The panellist explained that it could be destroyed under Article 23(g) only if it is imperatively required by military necessity. Subject to that provision, he considered that it is not incon-ceivable that the destruction might be lawful.

Another participant asked whether the panellist would agree that something cannot be a military objective if it is under your control. Then, only Article 23 and Article 53 of the Fourth Geneva Convention are the important rules in that case, because if it is only under your control and it is not on your territory then, in the participant’s view, it is necessarily in an occupied territory.

The panellist totally agreed with the participant on the fact that if an object is under your control, as for example in the context of an occupied territory, that object is clearly not a military objective. Therefore, the Fourth Geneva Convention’s prohibition of destroying prop-erty on occupied territories, ‘except where such destruction is rendered absolutely necessary by military operations’, would apply.

3. Military necessity, economy of force and International Humanitarian Law

A participant agreed with the fact that a widely accepted definition of ‘military necessity’

covers not only the minimum suffering, but also the minimum use of force. On this point, N.

Dunbar mentioned once that there is an implicit principle of economy of force behind military necessity. But he wondered if economy of force is actually what International Humanitarian Law (IHL) requires the armed forces to pursue. Surely, the purpose of IHL is not to make sure that armies fight efficiently or to maximise the prospect of victory. Surely, it is not a viola-tion of IHL that one fights poorly, in the sense of resources. Yet, fighting “wastefully” would be a violation of IHL if, but only if, that somehow affects the interests protected under IHL.

The participant explained that in a way, he always finds perplexing that military necessity, under IHL, seems to require armed forces to fight competently. It seems to be well understood anyway by the military and, of course, it is in their interest to save munitions and not waste other resources on things that are not important to them. That is what we might colloquially understand as military necessity, but he was not sure that it is part of the principle of military necessity as it is understood under IHL.

In the view of the panellist, there are two different meanings or purposes to the same phrase.

But in the end, they will have the same effect, which is rather useful for a military legal advi-sor. Indeed, the reality in military operations is that there is no infinite number of resources.

This is why things have to be prioritised in order to achieve the campaign aims. That may not be the IHL definition of ‘military necessity’, but it is rather a useful one in terms of advising commanders.

Another participant understood the panellist’s point on self-defence, but would the panellist agree that for IHL it constitutes a separate situation, although the rules are exactly the same?

Obviously, the ‘feasibility’ includes force protection and therefore, if somebody is under fire, the feasibility changes. Yet, from an international law point of view, do we really need this concept of self-defence, which can be confusing?

The panellist agreed that this can be confusing, and that it is very difficult, notably in terms of training soldiers when they are to apply the law of self-defence, and then flick into apply-ing the law of armed conflict and the rules of engagement. But they have the inherent right of self-defence at all times and throughout all operations. That right cannot be taken away from them and it should not be. So, you do end up with a kind of conflation, although things need to be pretty clear for soldiers. Afghanistan is an excellent example of that: there were attempts to say that above a certain line the law of armed conflict did apply and, below that certain line, the rules of self-defence did apply. But it does not make any sense at all, because it has to be determined by the specific circumstances in which individuals find themselves at a specific time. So yes, it can be confusing, but it exists and the fundamental objective is to teach soldiers as clearly as possible how to apply these rules.

A participant shared a comment on the issue of cultural property: whereas the panellists have been dealing with civilian objects in general, he stressed that for specific categories of civilian properties, notably cultural property, the 1954 Hague Convention only covers cultural property of ‘great importance to the cultural heritage of every people’. That Convention explicitly pro-vides that cultural property can only be attacked in case of ‘imperative military necessity’. The participant further underlined that the situations are described with more details in the 1999 Second Protocol to the 1954 Hague Convention, which was adopted more than twenty years later than the 1977 Additional Protocols to the 1949 Geneva Conventions. He was aware that it complicates the life of soldiers in the field when it comes to rules of engagement but, none-theless, the participant recalled that specific precautions must be taken in the attack (Article 7 of the 1999 Second Protocol) to ensure the protection of that particular kind of property.

Session 2