Advanced technologies
3. The issue of indiscriminate weapons
Concerning the weapons that might be forbidden per se because they are indiscriminate, notably in densely populated areas, one of the participants mentioned the precedent of incen-diary weapons, whose use is forbidden in some specific areas. Yet, he noted that this is not something you can decide solely on the basis of an experts’ evaluation, because in the end you will always need to have a governmental decision to ensure that one particular weapon will be limited or prohibited per se.
One of the panellists shared the same opinion, saying that State Parties are making the deci-sion, as opposed to commanders. On the one hand, it is very difficult for a commander to make a decision about a per se illegality, but on the other hand, it is very easy for a commander to make a decision about it in the specific circumstances.
According to another panellist, it is very difficult to claim that the law explicitly considers that some weapons are per se indiscriminate in populated areas, but when you discuss Article 51(4) (b) and you refer to the fact that this concerns the use of indiscriminate means and methods of combat per se, he reads it otherwise: indeed, this article concerns attacks which employ a method or means of combat, and it is all about the circumstances. In practice, there are cir-cumstances in which the use of a weapon, which is not per se indiscriminate, will make its use indiscriminate in those circumstances. What makes it problematic is the generalised
assess-ment of individual attacks in those circumstances. In the Gotovina case, the Tribunal criticised the fact that it was an ex post facto damage based on the impact rather than the expected precision. In the panellist’s view, this is a fair approach because the decision has to be made on the basis of what is expected by the commander and not on what occurs. Somehow, the question is whether you have a 200-meter line, or any other line, in terms of what is expected and it is interesting to see that while the Appeal Court dismissed the conviction in the Go-tovina case, in the Martić appeal judgment there was a discussion on the expected dispersion area and the Appeals Chamber concluded that ‘a dispersion pattern of such proportion would hardly make the finding of the Trial Chamber that the weapon used was incapable of hitting specific targets unreasonable’. Basically, it means that it is not unreasonable to consider such dispersion patterns as being an indiscriminate attack.
Another panellist mentioned that he agrees with Schmitt’s position, but when we talk about artillery and other types of technologies, we always assume that we are talking about ‘target-ing’. With respect to artillery specifically, you are using force that rises to the level of an attack and you are not really doing it in the context of ‘targeting’ because you are trying to achieve something else. And the assumption according to which you could use artillery in urban areas when you are not trying to target a specific structure is problematic.
One of the participants referred back to one of the panellists’ presentation regarding force protection as a factor in proportionality evaluation. Although agreeing with the examples presented, he stressed that it is not the force protection of the attacking forces that is the feasibility factor, while obviously, if you protect other forces through the attack, this is indeed a military advantage to keep those forces you want to protect alive. If it was about your own forces, you could simply keep them at home. When it comes to military advantage, because these rules, as we all assume, also apply in non-international armed conflicts, they are also binding on non-state armed groups. In asymmetric warfare especially, it becomes much more difficult to apply the panellist’s analysis, including the concept of ‘aggregation’, because, for example, if you are in a perfectly lawful armed conflict against the USA, what is the advantage of killing a small number of US soldiers – although they constitute legitimate targets? Realisti-cally, you will not be able to really weaken the military potential of the USA in such a way that the USA no longer has enough soldiers. Or do we consider that the asymmetric enemy will no longer be able to kill soldiers, and perhaps the USA will withdraw from the country? This is not a traditional military advantage, as it is rather a psychological one.
The panellist explained that in the literature, some think that you may take the psychological or moral effects or deterrence more generally as part of the military advantage. In his view, this is a very dangerous conclusion, which paves the way for hitting targets which we would
otherwise think are not lawful military objectives or the attack would be disproportionate.
In all the examples he could think of, the attack would not be lawful. Although this was an interesting point, the panellist noted that the law as it currently stands does not favour this kind of conclusion – while it might be taken into account. With regard to aggregation in itself, it does solve some problems: whenever the adversary has more operational capacities, it just requires you to have a larger number of attacks in order to achieve that military advantage.
On the issue of psychological impact and in the context of proportionality, a participant asked whether it should be analysed as cumulative, and what impact it would have on the issue of military advantage.
The panellist recalled that many States assert that the concrete and direct military advantage has to be assessed in view of the attack as a whole. Therefore, the cumulative harm might also need to be assessed. From a theoretical perspective, if you have civilians who have been injured by an attack, and there is a second attack, you expect the civilians to be injured again.
As they were already weakened by the first injury, they would die of the second injury – even if they would not have died from that second injury, if they had not been injured in the first place. In the end, you will have to consider the situation as you know it. So, if you already have psychological harm and you have a new attack, you must take into account the harm existing before and that which your new attack will create. It will not be “recounted”, but it must undoubtedly be taken into consideration.
On the issue of the aggregation of military advantage, a participant asked: what are the boundaries of this approach? How does aggregation of incidental loss of life, injury and dam-age work practically speaking? As to attain the aggregated objective, you will be looking at different types of targets, in more or less densely populated areas, industrialised zones, residential areas, etc.
The panellist explained that there is some kind of tension between the wording of Articles 51 and 57 of the 1977 First Additional Protocol, which deal with indirect military advantage. In the end, the attacks must be interrelated or the value of one attack must depend on the value of another attack to be sufficiently connected and to make the aggregation possible. There may be situations where you may have to take into account many attacks: with regard to the prevention of rocket attacks for example, the more arms depots or rocket launching points the enemy has, the more attacks you will need in order to achieve the military advantage. Sec-ondly, concerning the aggregation of collateral damage, if we are talking about States, jus ad bellum requires to take into account the overall effects of a campaign. In practice, one must not forget that collateral damage assessments are very difficult, and it becomes even more
difficult when you have to aggregate different attacks – although it is not impossible. Many resources would have to be invested in order to aggregate such damages.
Concerning interdiction fires, even if you might not be targeting something specific, you are seeking a military advantage. Hence, how does it work with the issue of incidental loss of life, injury and damage?
The panellist recalled the importance of the principle of proportionality and the need to assess collateral damage in this context.