Abstract
This contribution examines the influence of the ius ad bellum upon the targeting process. Specifically, it will examine how the rules of international law relating to the permissibility of the use of force can and do influence the targeting of both objects and persons which constitute military objectives under international humanitarian law and can, alongside other relevant rules and principles of international law and policy considerations, additionally influence the geographical and temporal scope of the targeting process.
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Notes
- 1.
The distinction between the ius ad bellum and the ius in bello can be traced back as far as late Mediaeval and Renaissance legal scholars and moral philosophers. Vitoria and Grotius, for example, argued that both sides in a conflict could believe they had a just cause and that a just war must also be waged with a degree of moderation. See e.g. de Vitoria 1991, pp. 314–326. By the eighteenth century the ius ad bellum and the ius in bello were viewed as separate bodies of law by such writers as Rousseau and Vattel. Some just war theorists question the morality of the distinction, but by and large most writers (including myself) and treaties accept it as a given. Nevertheless, there are always possible conflations on the basis of either perceived morality or expediency. Examples of such conflation, and in my view misapplication of ad bellum considerations, to justify ignoring in bello limitations include the arguments raised to justify area bombing of cities in WWII, the misapplication of IHL in relation to the treatment of suspected terrorists and the International Court of Justice’s (ICJ’s) controversial statement relating to the possible use of nuclear weapons in cases of ‘extreme self-defence’, after having concluded on the basis of a rather oversimplified reading of IHL that virtually any use of nuclear weapons would be incompatible with IHL. See Advisory Opinion, Legality of the Use by a State of Nuclear Weapons in Armed Conflict, ICJ Reports 1996, 66, pp. 262–263.
- 2.
- 3.
See Greenwood 1989, pp. 275–279, where he lists several of these categories (limitation on the type of target, geographical and temporal limitations) as well as others.
- 4.
- 5.
Additional Protocol I of 1977 [hereinafter API], Article 52(2).
- 6.
See ICRC Commentary to Article 52, p. 637. See also ICRC Customary IHL Database, Rule 8 available at http://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule8.
- 7.
See, e.g. the discussion of targeting of industrial and infrastructure targets in the Desert Storm (Iraq, 1991) and Allied Force (Kosovo, 1999) air campaigns in Rogers 2004, pp. 71–78. For a recent and thorough treatment of targeting within IHL, see Boothby 2012. Dinstein sees certain infrastructure targets such as bridges as military objectives by nature in Dinstein 2004, pp. 92–93. Irrespective of whether one agrees or disagrees with all the positions taken by the authors of any of these works from an IHL perspective, it is worth pointing out (as an observation rather than a criticism) that none of them discuss whether or how ad bellum considerations might impact upon targeting. That illustrates how many authorities tend to view targeting exclusively from the perspective of the law of armed conflict.
- 8.
The ICRC Interpretive Guidance on the Notion of Direct Participation in Hostilities was published by the ICRC in 2009. Melzer 2009. There is a degree of controversy within IHL/LOAC regarding certain positions taken in the ICRC Interpretive Guidance on the Notion of Direct Participation in Hostilities. In particular, the possible restrictions on targeting of individuals on the basis of ‘restrictive military necessity’ and the targeting of members of armed groups in non-international armed conflicts are debated. I take no position here regarding these controversies as they do not directly relate to the question of whether or how ad bellum considerations could impact upon targeting. For examples of critiques, see Watkin 2009–2010, Schmitt 2009–2010, Boothby 2009–2010 and Parks 2009–2010.
- 9.
In both the Desert Storm (1991) and Iraqi Freedom (2003) aerial campaigns, ‘leadership targeting’ was engaged in on a systematic basis. This may well be permissible under IHL/LOAC provided the persons targeted are in fact either members of the armed forces or have a real command function over them. This should not be confused with assassination of persons by means of perfidious or treacherous attack which has long been prohibited under the law of armed conflict. See Boothby 2012, pp. 528–529. However, as pointed out above, it may not be permissible from an ad bellum perspective. Whether it was allowed in the context of those conflicts falls outside the scope of this contribution and is a determination I leave to the reader to make on the basis of the general considerations put forward here.
- 10.
Crossing a border, armistice line or other international demarcation can constitute a violation of the prohibition to use force and forcible attempts to expel the existing administering Power are also generally seen as armed attacks. See UNGA Res, 2625 (XXV) Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, 24/10/1970: Principle 1 relating to the duty to refrain from the threat or use of force. This was the reason why the forcible attempts to resolve territorial claims by Argentina vis à vis the Falklands/Malvinas , by Iraq, with regard to the invasion of Iran and later of Kuwait, and between Ethiopia and Eritrea have consistently been seen as violations of this prohibition and as providing a basis for the exercise of self-defence. See Eritrea-Ethiopia Claims Commission, Partial Award, jus ad bellum-Ethiopia’s Claims 1–8 (19 December 2005). For a critical appraisal, see Ponti 2009 p. 267.
- 11.
For a treatment of the various views of the legality of rescue of nationals, either within the context of self-defence, or on other possible grounds, see Gill and Ducheine 2010, pp. 217–219 and accompanying notes.
- 12.
Greenwood 1989, pp. 276–278.
- 13.
Neutrality law is still valid under the UN Charter, albeit with certain modifications in relation to the duty of neutrals to not violate sanctions imposed under Article 41 of the Charter, and has been systematically relied upon by States since the Charter came into force, both in relation to military action mandated under the Charter to restore international peace and security and in relation to uses of force under the guise of self-defence. Other principles of general international law relating to territorial inviolability, exclusive jurisdiction over a State’s territory and non-intervention likewise do not cease to be operative in relation to third States which are not directly involved in an unlawful use of force. For a treatment of neutrality law, see Bothe 2013, p. 549.
- 14.
See Kleffner 2013, pp. 56–59.
- 15.
This duty has been stressed in numerous arbitral awards and judicial decisions including the Island of Palmas arbitral award, PCA, 4 April 1928, RIAA, Vol. II, p. 829 at 839; the Corfu Channel case, ICJ Rep. 1949, 4, at 32. Necessity as part of self-defence relates to the question whether the State possessing sovereignty over territory where an organized armed group is operating from autonomously in fact possesses the will and means to enforce this duty to preclude its territory being used as a base of operations to conduct attacks upon other States. Only if it fails to uphold this duty, does a necessity of self-defence potentially arise.
- 16.
Ducheine and Pouw 2012 p. 40.
- 17.
Kleffner 2013, pp. 60–70.
- 18.
- 19.
Gill et al. 2013.
- 20.
See Boddens Hosang on the influence of ROE upon targeting, Chap. 8 in this volume.
- 21.
This led to General Mac Arthur being relieved of his command by President Truman. For an account, see Manchester 1978, p. 751.
References
Boothby WH (2012) The law of targeting. Oxford University Press, Oxford
Boothby WH (2009–2010) And for such time as: the time dimension to direct participation in hostilities. New York Univ J Int Law Policy 42:741–768
Bothe M (2013) The law of neutrality. In: Fleck D (ed) The handbook of international humanitarian law, 3rd edn. Oxford University Press, Oxford
Dinstein Y (2004) The conduct of hostilities under the law of international armed conflict. Cambridge University Press, Cambridge
Dinstein Y (2011) War, aggression and self-defence, 5th edn. Cambridge University Press, Cambridge
Ducheine PAL, Pouw EH (2012) Legitimizing the use of force: legal bases for Operation Enduring Freedom and ISAF. In: van der Meulen J, Vogelaar A, Beeres R, Soeters J (eds) Mission Uruzgan: collaborating in multiple coalitions for Afghanistan. Amsterdam University Press, Amsterdam, Chap. 3, pp. 33–46
Gill T (2010) Legal basis of the right of self-defence under the UN Charter and under customary international law. In: Gill T, Fleck D (eds) The handbook of the international law of military operations. Oxford University Press, Oxford
Gill T (2015) When does self-defence end? In: Weller M, Solomou A (eds) The Oxford handbook of the use of force in international law. Oxford University Press, Oxford
Gill T, Ducheine P (2010) Rescue of nationals. In: Gill T, Fleck D (eds) The handbook of the international law of military operations. Oxford University Press, Oxford
Gill TD, Ducheine PAL, F.H. Boddens Hosang JFH, Marchand C (2013) Report on the role of self-defence in multinational operations. In: Horvat S, Benatar M (eds) Recueil international society for military law and the law of war, Congress proceedings of the 19th international congress on the ‘Legal Interoperability and Ensuring Observance of the Law Applicable in Multinational Deployments’, Brussels, pp. 121–171
Greenwood C (1983) The relationship of the ius ad bellum and the ius in bello. Rev Int Stud 9:221–234
Greenwood C (1989) Self-defence and the conduct of international armed conflict. In: Dinstein Y (ed) International law at a time of perplexity: essays in honour of Shabtai Rosenne. Martinus Nijhoff Publishers, The Hague
Kleffner J (2013) Scope of application of international humanitarian law. In: Fleck D (ed) The handbook of international humanitarian law, 3rd edn. Oxford University Press, Oxford
Manchester W (1978) American Caesar: Douglas Mac Arthur 1880–1964. Dell Publishers, paperback edn
Melzer N (2009) Interpretive guidance on the notion of direct participation in hostilities under international humanitarian law, ICRC, Geneva. http://www.icrc.org/eng/assets/files/other/icrc-002-0990.pdf. Accessed 27 Jan 2014
Parks H (2009–2010) Part IX of the ICRC direct participation in hostilities study: no mandate, no expertise, and legally incorrect. New York Univ J Int Law Policy 42:769–830
Ponti C (2009) The Eritrea-Ethiopia Claims Commission on the threat or use of force and individual self-defence. In: de Guttry A, Post HHG, Venturini G (eds) The 1998–2000 war between Eritrea and Ethiopia: an international legal perspective. T.M.C. Asser Press, The Hague, pp 267–276
Rogers APV (2004) Law on the battlefield, 2nd edn. Manchester University Press, Manchester
Schmitt N (2009–2010) Deconstructing direct participation in hostilities: the constitutive elements. New York Univ J Int Law Policy 42:697–740
de Vitoria F (1991). De Jure Belli Reprinted. In: Pagden A, Lawrence J (eds) Vitoria political writings. Cambridge University Press, Cambridge
Watkin K (2009–2010) Opportunity lost: organized armed groups and the ICRC direct participation in hostilities interpretive guidance. New York Univ J Int Law Policy 42:641–696
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Gill, T.D. (2016). Some Considerations Concerning the Role of the Ius ad Bellum in Targeting. In: Ducheine, P., Schmitt, M., Osinga, F. (eds) Targeting: The Challenges of Modern Warfare. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-072-5_5
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