Unscrambling intertwined notions

Let us first sort out several key concepts. I wish to shed some light on the following distinc-tions:

i. Attack v. destruction

The first distinction concerns the act of ‘attacking’ an object v. the act of ‘destroying’ an object.

Article 49(1) of Additional Protocol I defines ‘attacks’ as ‘acts of violence against the adver-sary, whether in offence or in defence.’ In contrast, there is no formal definition of ‘destruction’

under IHL.

You would agree that the two notions are clearly interrelated. In active combat, the destruc-tion of an object typically takes the form of an attack against it, or an attack against some other objects located in its vicinity. Similarly, when an object becomes the target of an attack, this attack often results in that object being totally or partially destroyed.

This, however, does not mean that attack entails destruction, or vice versa. The truth is quite the contrary. To begin with, not every attack necessarily involves the destruction of its target.

The use of graphite filaments over electrical power stations during the 1999 Kosovo campaign, and the reported use of electromagnetic pulse as a weapon against Iraq’s satellite TV network in 2003, are among the examples. To this, one may also add certain types of cyber-attacks that disrupt and disable services.

Even if the attacker intends to destroy an object, the attack does not always cause its destruc-tion or damage. Thus, for instance, the ordnance may simply fail to detonate; the target may move sufficiently away from the area of impact to escape or withstand the blast; an undersup-plied mortar battery may exhaust its rounds without hitting the target. Plainly, if an attack is launched against an object, and if the object survives the attack, this does not mean that no attack has taken place at all.

In this connection, Article 8(2)(b), sub-paragraphs (ii) and (iv), of the Rome Statute may be briefly mentioned. They respectively designate as war crimes ‘intentionally directing attacks’

against civilian objects, and ‘intentionally launching an attack in the knowledge’ of clearly

excessive incidental damage. Significantly, neither the Statute itself nor its accompanying Elements of Crimes document requires any particular consequence to follow the attack. The International Criminal Tribunal for the former Yugoslavia (ICTY) dealt with unlawful attack charges very differently. In Galić and Milošević (Dragomir, that is), the tribunal ruled that the war crime of unlawful attacks on civilian persons requires showing that the attacks caused death or serious injury.

Nor, for that matter, does destroying an object always mean attacking it. Let me give you an example. In 1944, the port city of Brest in Bretagne experienced fierce urban fighting between German occupiers and Allied forces. Allied combat engineers blew holes in the walls of adja-cent buildings to enable infantry units to advance without exposing themselves to enemy fire on the street. One might say that Allied soldiers ‘destroyed’ French property, but it would be odd to call it an ‘attack.’

Perhaps we may rephrase the difference between the two notions as follows: ‘destruction’ re-fers strictly to the act itself, i.e., what one does to the object; ‘attack,’ on the other hand, not only refers to the act itself, but also points to the existence of an entity that it is intended to harm in some direct way.

For the most part, the entity at issue is one’s adversary, as Article 49(1) of Additional Protocol I suggests. This is not true in some cases, e.g. where the attacker deliberately targets civilians or civilian objects as such. The International Committee of the Red Cross (ICRC)’s 2009 Inter-pretive Guidance on the Notion of Direct Participation in Hostilities also speaks of ‘inflict[ing]

death, injury, or destruction on persons or objects protected against direct attack.’

ii. Military objective v. military advantage v. military necessity

The second group of notions in need of disentanglement is a threesome, as it were. They are:

military objective, military advantage, and military necessity.

It should not be too hard for us to distinguish between military objective and military neces-sity. In essence, military objective pertains to objects, whereas military necessity pertains to conduct. Simple as it sounds, this distinction is something that several ICTY judgments (Strugar, Brđanin) and some international criminal lawyers have missed.

Let us look at Article 52(2) of Additional Protocol I. It gives us perhaps the most widely ac-cepted, two-prong definition of a military objective. Besides the plain text, we should take note of two things. One is that there is nothing in the definition that requires an object to belong to the attacker’s adversary. As will be seen below, it is not inconceivable for a party

to attack its ‘own’ object, as long as it constitutes a military objective at the time. The other thing is what it means for an object to constitute a military objective: the object’s status as a military objective justifies attacks being directed against it.

Now, compare this with the notion of military necessity. Look at Article 23(g) of the Hague Regulations. According to this provision, as well as several others, an object’s destruction is justified if it – the destruction, not the object – is imperatively demanded by military neces-sity. There are also various kinds of conduct that one can justify under IHL if required by military necessity.

I have argued elsewhere that, in positive IHL, military necessity functions as an exception that releases an act from specific rules prescribing contrary action, to the extent that the act is required for the attainment of a military purpose and otherwise in conformity with IHL. This definition contains four cumulative elements.

First, the act must be made primarily for some specific military purpose. Second, the act must be required for the purpose’s attainment. Third, the purpose must be in conformity with IHL.

Fourth, the act itself must otherwise be in conformity with IHL.

The second element – that of ‘requirement’ – can be further divided into three parts: (1) the act must be materially relevant to the purpose’s attainment; (2) of those materially relevant and reasonably available courses of action, the act in question must be the least injurious;

and (3) the harm caused by the act must not be disproportionate to the gain achieved by it.

If not, or no longer, in fulfilment of these elements and requirements, an act becomes militar-ily unnecessary. The principal rule now governs this militarmilitar-ily unnecessary act. And it is this principal rule that renders the act unlawful.

Telling military advantage and military necessity apart is hard. It has sometimes been sug-gested that the difference is one of degrees. Thus, military necessity involves the act being

‘indispensable,’ whereas military advantage encompasses indispensability as well as mere gain, superiority, or expediency. Personally, I am not convinced by this line of reasoning. I do not think that conditio sine qua non, also known as ‘but-for’ causation, really characterises mili-tary necessity.

Could it be that military advantage compares the belligerent’s position vis-à-vis that of its adversary, but military necessity does not? Here, too, I am not entirely sure that military ad-vantage can be understood without reference to comparisons between the parties.

In my view, the clearest difference between the two notions lies in what they do as legal con-cepts. Unlike Article 23(g) of the Hague Regulations and others that specifically admit military necessity as an exception, no rule of positive IHL admits military advantage or convenience as an exception. Rather, military advantage is part of the definition of military objectives, and a component of the proportionality requirement in attacks.