Reversibility - Can military advantage serve as a basis for using force?

The last issue I would like to discuss, and possibly the most interesting, is the ability to use military advantage as a basis for using force rather than as a limitation of some sort.

A good place to start is the Gotovina Trial Judgment of the International Criminal Tribunal for the former Yugoslavia (ICTY), which contains a very interesting statement. According to the Tribunal, and due to the position of Martić in the armed forces of the Republic of Serbian Krajina, ‘the Trial Chamber is satisfied that firing at his residence could disrupt his ability to move, communicate, and command and so offered a definite military advantage, such that his residence constituted a military target’¹. When I read this part of the judgment, it seemed to me that the Tribunal was advocating here – perhaps unconsciously – effect-based target-ing. Most people I consulted agreed with this readtarget-ing. After all, the Tribunal neglected to 1 ICTY, The Prosecutor v. Ante Gotovina, Ivan Cermak, Mladen Markac, paragraph 1899, IT-06-90-T, Trial

Chamber I, Judgment, 15 April 2011, available at <http://www.icty.org/case/gotovina/4>

check whether Martić’s residence had had some effective contribution to military action, and concluded instead that the military advantage offered by the attack – disrupting Martić’s activities – had been enough to render the residence a military objective. If this is indeed what the Tribunal was suggesting, it seems to go against the prevalent interpretation of the definition of military objectives – as far as objects are concerned – contained in Article 52(2) of Additional Protocol I. At the same time, I do think that there is an interesting question to be raised here: is it permissible to launch an attack solely because it will yield a military advantage?

Ground combat provides a few examples which illustrate the pertinence of this issue. Let us start with smoke screens. During ground manoeuvres, various munitions are used to generate smoke screens. These munitions are frequently fired into densely populated areas in order to mask the movement of infantry soldiers, thus attaining an important military advantage. This universal practice may seem, however, at odds with the language of Additional Protocol I. If firing a smoke munition is an ‘attack’ in the sense of Article 49 of Additional Protocol I – and I think many people will say that it is – what ‘specific military objective’ is it ‘directed at’

(Article 51(4)(a))? There is none, because the whole purpose of smoke screens is to mask ground forces where they are – streets, buildings through which they are passing, and so on.

Another good example is room-clearing procedures. When a military takes over a city or a town, its forces move from house to house and gradually ‘clear’ each such house by entering it and making sure that enemy forces are not present. All militaries around the world have procedures in place to regulate this process and, although they are not identical, many of them have things in common: shooting down doors, making holes in walls, and so on. A rep-resentative example for these procedures can be found in a 2002 United States (US) doctrine manual, which reads:

‘When entering buildings, a soldier must minimise the time he is exposed (…) He must avoid using windows and doors, except as a last resort. He should consider the use of demolitions, tank rounds, and other means to make new entrances. If the situation permits, he should pre-cede his entry with a grenade, enter immediately after the grenade explodes, and be covered by one of his buddies’².

Naturally, not every building where this process takes place is a military objective, and the military cannot be reasonably certain that it is. Many of the buildings ‘cleared’ this way, all

2 Headquarters - Department of the U.S. Army, Combined arms operations in urban terrain, Field Manual No. 3-06.11, 3-8, 2002, available at <www.bits.de/NRANEU/others/amd-us-archive/fm3-06.11(02).

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around the world, are assumed to be civilian objects, and they are being entered into in order to verify that they are not being used by the enemy for military purposes. As at least some parts of these procedures fall within the definition of ‘attacks’ in Article 49 of Additional Protocol I, they raise the same question as the one raised by the use of smoke munitions. Is it really reasonable to say that these procedures, as well as the use of smoke munitions, are

‘indiscriminate’ (as Article 51(4) seems to imply)? I seriously doubt that, and I believe that most (if not all) IHL specialists would as well.

Admittedly, I am not sure that this issue should be dealt with within the ambit of ‘military advantage’. In a certain sense, it is much more foundational than that, because it appears to suggest that our understanding of distinction – perhaps the most important rule of IHL – is still incomplete after all those years; it is an understanding that is simply not in line with things that all militaries do, and have been doing, in ground combat for centuries. Perhaps this is an area where conclusions we have treated as axioms should be reconsidered – and restated to conform to our legal intuitions.