University of New South Wales Law Journal Student Series
THE APPLICATION OF MILITARY OBJECTIVE TO WARFARE IN THE MODERN URBAN ENVIRONMENT
This paper examines the differing interpretations given to the concept of ‘military objective’ against the background of the development of Additional Protocol 1. As Jividen has noted, “‘military objective’ (is) a term whose contours are not definitely or equally defined by states under international law.” The concept, I contend, is central to targeting, particularly amongst Western states, but the restrictions imposed by Additional Protocol 1, Article 52 have not been adopted or adhered to in a range of recent conflicts. The paper will examine the tensions created by the concept against the developing nature of war fighting in the twenty first century.
World War II was perhaps the starkest modern example of unrestrained armed conflict with both sides engaging in a range of excesses that left cities across Europe decimated, with extraordinary suffering exacted on civilian populations. As Roscini intimates, this war was frequently fought without regard to the principles of proportionality or distinction.
Whilst it is easy to portray these excesses as matters of the past, more recent conflicts demonstrate the frequency with which wars are fought without. For example, the Russian approach to fighting in the First Chechen War, and particularly in the Battle for Grozny, demonstrated the dangers of fighting in an urban environment and a lack of regard for the principles of proportionality and distinction. When armoured columns moved into Grozny on 31 December 1994, an intense aerial and artillery bombardment proceeded the attack creating immense damage to the city, ‘some of the worst urban destruction since WWII.’ This is despite (the former Soviet Union) having signed the 1949 Geneva Conventions and Protocols 1 and 2.
Similarly, in the Iran-Iraq War, attacks upon Iranian cities demonstrated a deliberate strategy of targeting civilian objects, sometimes to undermine the economic capacity of Iran, and at other times as punishment or retribution. Likewise, the Persian Gulf War and the Iraq War, attacks engaged in by Western forces raise serious questions about the scope of operations and the appropriateness of some of the targets. Even more recently, in the current war in Syria, the siege warfare, including bombardments, of cities including Aleppo and more recently in Ghouta, demonstrate little or no regard for the Laws of Armed Conflict. Meron presciently observed that civil wars (such as in Syria) have ‘tragic consequences for the civilian populations, including the killing, displacement and starvation of innocent victims, as well as the serious problems of humanitarian assistance’. In the case of the Syrian conflict, the use of barrel bombs, cluster munitions, gas and seemingly unrestrained land and aerial bombardment of built-up areas calls into question the commitment of some state and non-state actors to abide by what some would argue are accepted norms under the Law of Armed Conflict.
II HISTORICAL DEVELOPMENT: FROM BALTHAZAR TO ADDITIONAL PROTOCOL 1
The history of the development and use in international law of the concept of ‘military objective’ has been a long one indeed. As noted by Myer, the ‘most basic principle’ underpinning the Law of Armed Conflict has been the principle of distinction. This principle predates the treaties of the 19th and 20th centuries. For instance, in 1582, Balthazar de Ayala, a judge advocate of the Spanish army of the Netherlands stated that the ‘intentional killing of innocent persons, for example women and children is not allowable in war.’ This concept was later articulated in the Leiber Code, adopted by the United States Union Army as Union Army General Order No 100. Article 22 of that Code provided (in part), ‘the unarmed citizen is to be spared in person, in property, and honour as much as the exigencies of war will admit.’ It can be demonstrated therefore that the principle of distinction was accepted in international law well before, at least by Western nations, the start of the twentieth century.
In this respect, the Hague Regulations of 1899/1907 reflect the basic tenet of the Law of Armed Conflict that the object of an attack must be a ‘military object’. Parks, for instance, observes that the 1907 Convention was the first codification of the significance of targeting, rather than whether the city, town or village was defended. This is reflected in Article 23(g) of the Regulations which provided that it was impermissible to ‘destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war’. Kalshoven notes that, ‘logically ... it is not just “unless” but “to the extent” that the destruction or seizure is demanded.’ I contend, that whilst this observation is correct, the word ‘unless’ must also be read in conjunction with the word ‘imperatively’. I suggest this established an onerous standard for the launching of an attack. As will be demonstrated this ‘high bar’ appears to have been a point of contention in more recent treaties, and has never been accepted by some state actors.
There is another limitation that has been accepted by some (but certainly not all) state actors, and this is reflected in the language of the Preamble of the Declaration of St Petersburg of 1868 which states: ‘the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy; ... for this purpose it is sufficient to disable the greatest possible number of men.’ It is important to recognise the implications of this preamble. Whilst some argue that ‘indeterminate, non-military advantages’ such as the weakening of civilian morale is a legitimate objective (the alleged success of the Linebacker II raids on North Vietnam between 18 and 29 December 1972 are an example of this), the wording of the Preamble demonstrates an attempt to limit the range of appropriate objectives.
Roscini points to the further development of the concept of ‘military objective’, with the development of the 1923 Rules of Air Warfare. Article 24(1) provides that ‘[a]erial bombardment is legitimate only when directed at a military objective, that is to say, an object of which the destruction or injury would constitute a distinct military advantage to the belligerent.’
Parks however observes that the Rules were an immediate and total failure, ‘suffering an ignominious death, doomed from the outset by language that established rules for black and white situations in a combat environment permeated by shades of grey.’ It is worth noting that the lack of support for the adoption of the Rules may have had its genesis in the basic disagreement between at least two of the principle delegations to the Commission of Jurists convened to develop the treaty. Parks points out that the British delegation placed emphasis upon developing rules that governed attacks on ‘military objectives’, whereas the U.S. delegation sought to identify specific targets categories which could be attacked, without using the terms ‘military target’ or ‘military objective’. This tends to suggest that U.S. military jurisprudence, and U.S. state practice, has resisted attempts to (in their view, overly) limit the possible targets that could be attacked.
Nevertheless, several attempts were subsequently made to further develop the concept of ‘military objective’. The International Committee of the Red Cross (‘ICRC’) Commentary on Article 52 notes that, at least a partial codification of the concept was attempted in the Hague Convention 1954 for the Protection of Cultural Property. Article 8 of the Treaty, when referring to a military objective went on to give examples, such as ‘an aerodrome, broadcasting station, establishment engaged upon work of national defence, a port or railway station of relative importance or a main line of communication’.
Then in 1956, the ICRC developed Draft Rules for the Limitation of Dangers incurred by the Civilian Population in Time of War. Article 7 of the Draft Rules provided:
Only objectives belonging to the categories of objective which, in view of their essential characteristics, are generally acknowledged to be of military importance, may be considered as military objectives. Those categories are listed in an annex to the present rules. However, even if they belong to one of those categories, they cannot be considered as a military objective where their total or partial destruction, in the circumstances ruling at the time, offers no military advantage.
The annexure to the Draft Rules provided an extensive list of ‘military objectives’, which, whilst not exhaustive, was, to say the least comprehensive.
It should be noted that, as with the 1923 Rules of Air Warfare, these Rules were also never adopted. Yves Sandoz, states in his preliminary remarks to the Advisory Opinion of the International Court of Justice on the legality of the threat or use of nuclear weapons states that the Draft Rules failed to win support because the Rules directly addressed the vexed issue of nuclear weapons. Of course, it should also be recognised that these Rules were drafted at a time of heightening tensions as the deep freeze of the Cold War set in.
The 1960s were also marked by the continuing tensions brought about by the Cold War, but also wars in Vietnam, Nigeria, and the Indo/Pakistan conflicts and the ongoing wars and tensions between Israel and its Arab neighbours. Nevertheless, or perhaps because of these conflicts, in 1965 at the 20th meeting of the ICRC, a resolution was passed that:
Solemnly declares that all Governments and other authorities responsible for action in armed conflicts should conform at least to the following principles:
• that the right of the parties to a conflict to adopt means of injuring the enemy is not unlimited;
• that it is prohibited to launch attacks against the civilian population as such;
• that distinction must be made at all times between persons taking part in the hostilities and members of the civilian population to the effect that the latter be spared as much as possible; [and]
• that the general principles of the law of war apply to nuclear and similar weapons.
The first three elements (but not the fourth) of this Resolution were subsequently adopted unanimously by the UN General Assembly as Resolution 2444 in 1968. Gasser has described this resolution as a ‘cornerstone of the new edifice’ (that is Additional Protocol 1). Also importantly, Roscini notes the U.S has acknowledged that Resolution 2444 is declaratory of customary international law.
Of note is that in 1972, in response to correspondence from Senator Edward Kennedy, the General Counsel of the US Department of Defense responded by accepting that the terms of Resolution 2444 was ‘declaratory of customary international law.’
Following this resolution the ICRC was tasked with developing the Additional Protocols. The resulting draft contained Article 47 that provided:
1. Attacks shall be strictly limited to military objectives, namely, to those objectives which are, by their nature, purpose or use, recognized to be of military interest and whose total or partial destruction, in the circumstances ruling at the time, offers a distinct and substantial military advantage.
In the ensuing negotiations the wording of the Article was redrafted. Further discussion of this variation will occur below. Nevertheless, between 1974 and 1977 with the development of Additional Protocol 1 to the Geneva Convention 1949 (and more particularly Articles 48 and 52) the international community saw an attempt to refine the concept of ‘military objective’ and limit those objects that could be targeted. For instance, Article 48 provides:
In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.
Article 52 provides:
1. Civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects which are not military objectives as defined in paragraph 2.
2. Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.
What is notable about these provisions is that Article 48 deals with the principle of distinction, with article 52 addressing the concept of ‘military objective’ and the limitations that should apply to targeting such objectives. More particularly Article 52(2) seeks to define the concept by its capacity to make an ‘effective contribution’ to military action, and whether the destruction etc. of that object offers a ‘definite military advantage’. The words in Article 52(2) bear a similarity to those used in Article 24(1) of the 1923 Rules of Air Warfare. Interestingly, the minutes of meetings leading up to the finalisation of the Additional Protocol reveal an intensity of debate on the precise words to be used. For instance, Article 47 of the Draft Rules developed in 1970–1971 and Article 51 in Additional Protocol 1 both use the terms ‘distinct and concrete military advantage’. Article 52 of the Additional Protocol on the other hand, as a result of the negotiations, no longer uses this term, instead adopting the term ‘definite military advantage’.
The reason for this differing language is perhaps explained by the concerns outlined by the U.S. Representative to the Conference, who stated that:
the United States Government (desires) to increase the protection of innocent victims of armed conflict, but emphasized certain concerns. Key among them was the fact that modem warfare includes civilians in the battlefield, and it has become increasingly difficult to prevent the intermingling of military and civilian activities and to separate and protect civilians.
Additionally, Parks opines that the division of opinion between delegates reflected (at least a perception) that the less developed nations (and perhaps the Soviet Bloc nations) were seeking to negate the airpower advantage held by developed nations. In other words, the development of the Protocol was ‘as much, if not more an arms control angle than a humanitarian interest.’ If this analysis is correct then it is illustrative of difficulties in achieving advances in the Law of Armed Conflict where parties have such differing perceptions, expectations and motivations.
What is notable is that both the developing nations and the Western powers, despite their differing expectations and emphasis pressed ahead with the attempt to develop the Additional Protocols. From the position of the West the emphasis was upon issues relating to recovering of remains, the evacuation of wounded and increased protection for civilians in internal conflicts. For the less developed nations, their concerns related to achieving combatant status for actor in wars of liberation, the limitation of the use of airpower, and the continuing ability to use force against internal dissent.
The result has been that 174 nations have executed Additional Protocol although the US, Israel, Iran, Pakistan and Turkey are amongst the countries that have failed to ratify it. The result therefore is that two of the nation’s most likely to be engaged in armed conflict, the US and Israel, fall outside the provisions of the Protocol, although both accept they are bound under customary international law to comply with the concepts of discrimination and necessity. At least in the case of the US, this is evidenced by the observation made by NATO spokesperson, Jamie Shea, during the bombing of the Federal Republic of Yugoslavia in 1999, that combatants ‘at all times distinguish between the civilian population and combatants and shall direct their operations against military objectives’.
This conclusion is reinforced by the Advisory Opinion on the Legality of the Threat of Use of Nuclear Weapons, The Internationals Court of Justice, that ‘the principles of distinction and unnecessary suffering (are) the two “cardinal principles” of international humanitarian law’ and that if ‘one is to target only “lawful” targets, and incidental injury to non-combatants is acceptable only as an indirect and unintended consequence of striking a lawful target, then the definition of what is a lawful target becomes paramount.’ This view is supported by the ruling of the International Criminal Tribunal for Yugoslavia in the decision of Kupreskic where the Court states that ‘it is now a universally recognised principle ... that deliberate attacks on civilians and civilian objects are absolutely prohibited by international humanitarian law.’ Plainly this observation indicates that the principle of distinction is now a settled element of customary international law.
III DEVELOPMENTS IN THE NATURE OF MODERN WARFARE
Whilst there has been a tendency to concentrate on recent technological advances in surveillance and targeting, the development of so-called smart munitions and drones, the nature of modern warfare has had a much longer gestation, arising out of the lessons of the mud and slaughter of the trench warfare of WWI, progressing through significant technical developments that occurred during WWII, and then further developing with the application of computer and related scientific advances. Additionally there have been significant demographic changes that have occurred, particularly since WWII that impact upon modern war fighting. In brief for these developments can be summarised as follows.
A Mobility and Range
These changes reflect the greater capacity and speed with which armies can move (brought on by the greater mobility of land forces since the invention of motorised transport and armoured vehicles, tanks, and aircraft) and the greater reach of offensive forces, principally through the development of the aircraft, but also because of modern artillery and missile technology. Whilst Kolb places emphasis upon the impact of airpower, I argue that airpower is simply one element of the impact of the mechanisation of modern armed forces. No longer do modern Western armies march into battle; they arrive in mechanised transport, aircraft and helicopters. This has meant that civilian areas, principally cities and towns that were once beyond the range of attacking armies are now easily subject to attack. Warfare, particularly for Western developed nations, has moved from largely static or slow moving forces to forces that seek to engage in dynamic manoeuvre. This speed and dynamism means that the opportunity for civilians to evacuate an area is substantially reduced; as HG Wells said: ‘No place is safe – no place is at peace. There is nowhere a woman and her daughter can hide and be at peace.’
Zehfuss makes a similar point, observing that ‘cities and those that lived in them had become more exposed; for aircraft could go far beyond enemy lines ... Cities were targeted because it was possible to do so”. Likewise, Williams refers to the observation of Viscount Grey who said: ‘War is the same word as it was a century ago, but it is no longer the same thing. It used to imply a contest between armies; it will henceforth, by common consent mean the destruction ... of the crowded centers of population; it will mean physical, moral, and economic ruin’. Of course, this lack of an ability to ‘hide’ is not just restricted to women and children. For opposing forces (such as less developed nations and non-state actors) that do not possess control of the skies, it means combatants are liable to lethal attack with or no warning at any time, and almost anywhere.
This greatly increased mobility and coordination of modern armed forces was demonstrated in May 1940, when German invaded the Low Countries, and again in 1944 when US forces broke out of Normandy during Operation Cobra. It was again demonstrated in such conflicts as the 1967 Six Day War and the 1973 Yom Kippur War, the Persian Gulf War and the Iraq War when the control of the skies, coupled with highly manoeuvrable ground forces, led to a rapid destruction of the opposing forces. As O’Neill and Kass observed, ‘Without air cover, an army in the desert is easy prey. Rommel learned that fighting Montgomery in North Africa; the Israelis revalidated this principle in 1967 and again in 1973.’
Coupled with this increased mobility and reach available to parties to an armed conflict is however a limiting factor. In the past centuries advancing, and defending, armies largely ‘lived off the land’. Whether it be Napoleon advancing towards Moscow or Sherman undertaking his March to the Sea during the US Civil War, both armies relied heavily upon rations scavenged from the areas through which the armies passed. Modern vehicles on the other hand, create vastly greater demands for fuel and other materials. This means that armies must maintain extensive lines of supply. These lines of supply, the storage facilities along the route and the sources of those supplies, whether they be factories, sources of raw materials of the power supplies that power the factories, or ports are all make highly attractive targets for the opposing forces. As we will discuss elsewhere, such conflicts as the Iran-Iraq War and the Persian Gulf War demonstrate how attractive targeting civilian objects which contribute, even indirectly to the a party’s war effort has become.
These factors of mobility, reach and dependence upon supplies, combine to mean in modern warfare civilians, and civilian infrastructure, are now far more attractive targets for any force seeking to gain an advantage on (what is now) a much broader battlefield.
Combat in urban areas is not a recent phenomenon. Whilst the destruction of Grozny, Aleppo and Raqqa are vivid and recent memories, the destruction of Carthage in 146 BC, through to the battles for Leningrad and Stalingrad demonstrate the potentiality for warfare to take place in urban environment. Rosenau argues that ‘professional military officers, at least in the West, have held that cities are places where battles should not be fought.’ Indeed, the history from WWII to the present demonstrates this very fact. Starting in June 1944, the Battle for Caen was a bloody encounter that sapped the strength of British and Canadian troops and slowed the advance of allied forces following the successful landing at Normandy. For the British, it may be argued that the first use of urban warfare, to their advantage occurred at Arnhem, when following the landings as part of Operation Market Garden, lightly armed British forces held off vastly superior German forces for a considerable time. For the British, this battle was not of their choosing but rather demonstrated that, faced with a numerically superior and more heavily equipped adversary, the urban landscape provided distinct advantages to a desperate defender.
In more recent times, during the Tet offensive, the experience of US Marines and South Vietnamese forces in Hue, was ultimately successful, came at great cost. These experiences explain the observation on the first page of FM 90-10 Military Operations in Urbanised Terrain (MOUT): ‘Tactical doctrine stresses that urban combat operations are conducted only when required and that built-up areas are isolated and by-passed rather than risking a costly, time-consuming operation in a built up area.’ The US Department of Defense in its report to Congress, ‘Conduct of the Persian Gulf War’, stated that urban warfare is ‘a form of fighting that is costly to attacker, defender, innocent civilians and civilian objects’. Davis expands on this saying, the ‘interaction between military and non-military forces and non-combatants are “far greater ... than in any other environment” ... non-combatants within urban areas suffer greatly at the hands of opposing forces, usually due to mistaken identity, targeting miscalculation, or simply being in the wrong place at the wrong time.’ It is this interaction between military and civilian objects that we will return later in this paper.
Whilst urban warfare may not be a new phenomenon, I argue that the likelihood of conflict occurring within the urban setting is in fact increasing.
Firstly, the propensity for humans to live in urban environment, particularly since WWII, is an important development. John-Hopkins points to research undertaken by the United Nations Department of Economic and Social Affairs which demonstrates increasing urbanisation in both developed and developing nations. For instance, ‘in 1950 only 86 cities had a population of more than one million, whereas by 2002 their number had risen to approximately 400.’ Roseau also make the point that the emphasis upon urban growth is particularly marked in the developing world with a five hundred percent growth over the past fifty years with the urban population in developing countries representing two thirds of the total population by 2025.
Secondly, some authors argue, quite persuasively, that modern warfare, involving militarily strong armed forces from developed nations opposing militarily weaker, less technologically advanced opponents — that is asymmetric forces — necessarily encourages those weaker forces to engage in alternative forms of combat such as guerrilla warfare or urban warfare in areas containing large civilian populations, in order to ‘re-balance’ the military inequality. Put another way, the very nature of modern warfare increases the chance state actors with modern and relatively militarily equal forces at the commencement of a conflict may be forced into urban warfare as the conflict proceeds as factors such as the loss of control of the skies prevents movement of military forces. It goes without saying, that in the case of non-state actors, the temptation to operate within the urban environment is even greater. In this respect Shkolnik notes that Hamas has engaged in practices of using civilian objects ‘converting civilian structures, including schools and hospitals, into military bases of operations, admitting that the IDF is forced to restrain its firepower in an effort to minimize innocent casualties.’
This trend towards warfare in urban areas brings with it serious implication for LOAC. Urban environments bring with them a concentration of high value (and attractive) military objectives. These objectives are, however, interspersed with an even greater number of civilian objects.
D Targeting and Accuracy
There is no doubt that throughout the twentieth century and into the twenty first century, there have been exponential improvements in target identification and the accuracy of strike upon specified objectives. Zehfuss observes that ‘[d]uring World War II, the Circular Error Probable, or (CEP) of bombs would have been around 1000 metres, whereas today it is more in the region of 10 metres. This means that the area at risk around the target has been reduced by a factor of 10,000’. This marked improvement in the accuracy of objects targeted has lead the US to develop their concept of precision engagement. The Joint Chiefs of Staff, in their publication Joint Vision 2010 assert that in implementing the concept it:
will consist of a system of systems that enables our forces to locate the objective or target, provide responsive command and control, generate the desired effect, assess our level of success, and retain the flexibility to reengage with precision when required.
As Schmitt explains this concept, when combined with highly manoeuvrable forces, means a ‘fast paced, mobile, and highly lethal’ warfare which will combine a range of information gathering technologies which will provide greater situational awareness and the opportunity to strike (one might think hopefully) ‘surgically’.
The combination of the capacity to locate a greater number of targets and the ability to (apparently) deliver munitions quite accurately has resulted in the proliferation of potential targets in a modern conflict, for instance, Schmitt observes that ‘through 1943 the US Eighth Air Force attacked fifty strategic targets in German. By contrast, in 1991 (in the First Iraq War) Coalition air assets struck 150 strategic targets on the first day of the war alone’.
Whilst this improvement in accuracy should be a blessing, it brings with it a potential downside. As I discuss in Part E below, there is a danger that with the capacity (particularly of Western nations) to identify potential military targets, the availability of weapons that can hit these targets (such as precision guided weapons) and domestic political considerations to bring conflicts quickly to an end with minimal casualties, will all combine to result in a permissive targeting strategy. Put another way, if political considerations combine with a belief in capacity to effect surgical strikes on military objects, the danger exists of excessive collateral damage, particularly in urban environments.
E Immediacy of Media and the Politics of the Body Bag
The nature of modern communications and media have the potential to impact not only upon the political environment but also the military leaders planning and executing an operation. No longer can the news of an operation be sanitised and successes and failures ‘massaged’. O’Neill and Kass make this point well in analysing factors affecting the planning and execution of Operations Desert Shield and Desert Storm in the Persian Gulf War:
Within the domestic context, the twin imperatives of minimizing casualties and avoiding a prolonged, Vietnam-style imbroglio, were key... this dictated that overwhelming force be employed early to produce an almost instantaneous paralysis of Iraq’s warfighting capability.
It is reasonable to conclude that the use of ‘overwhelming force’ in this context is being applied not simply to achieve a military objective, rather it is intermingled with satisfying a domestic political one as well. Arguably, the changed media environment impacts on western political and military leaders and negatively affects the selection of appropriate targets for attack. Thus whilst the ‘minimisation of casualties’ is the objective, the overwhelming desire is reducing casualties amongst one’s own troops. Zehfuss refers to this as the transference of risk, and that ‘the deciding ethical standard is force protection rather than non-combatant immunity.’ 
Of course, the impact of media and the politics of Western democracies is not lost on non-state actors. Hamas’ actions in 2014, in its confrontation with Israel in the Gaza Strip are an example of this. Robinson notes that ‘in the classic logic of guerrilla warfare, Hamas won the war simply by surviving and showing it could inflict damage on Israel, even while absorbing significantly more damage inside Gaza.’ One should also note the approach of Al Qaeda and ISIS in their terrorist strikes in the West. In both cases, their targeting of civilians and civilian objects was designed to influence Western opinions and opinion makers, not to achieve a military advantage.
F Infantryman Lethality
In Part III(C) above, I argued that, particularly in the case of asymmetric warfare, weaker opposing forces will tend to engage in guerrilla or urban warfare in an attempt to negate the military advantage held by the stronger, more technologically equipped opponent. This consequently means a shortening of distance between the rival forces and more reliance upon individual soldiers.
It would therefore be remiss not to acknowledge the evolution, particularly commencing during WWII of the lethality of the individual foot soldier, particularly at shorter distances. Just one example of this increased lethality is demonstrated by the firearms carried by infantrymen. Ehrhart has noted that the US infantryman in WWI was generally equipped with a bolt-action rifle, being a Springfield M1902 or later the M1907. As Ehrhart observes, this style of rifle was useful for engaging the enemy at longer distances using volley fire. The rifles were not however effective for assaulting enemy positions where automatic rifles, automatic pistols grenades and other weapons were more effective. The inter-war years, and particularly WWII saw the development of a wide range of automatic and semi-automatic infantry weapons. On the German side, the most significant of these was the StG44 ‘Sturmgewehre’ assault rifle, which was later adopted by the Soviet Union, becoming the (now ubiquitous) AK47 Kalashnikov. The West similarly saw the development and greater use of a range of semi-automatic weapons by the end of WWII, a trend that continued through to the Vietnam War by which stage the US had adopted the Armalite produce M14 semi-automatic and other Western forces adopted this, or similar European designs.
This adoption of semi-automatic weapons has produced a considerable increase, I argue, in the lethality of the individual soldier when engaging at shorter distances. The consequence of this increase in lethality is illustrated by the events that occurred in the Iraqi city of Haditha on 19 November 2005 involving a US Marine squad lead by Staff Sargent Frank Wuterich. During one of the incidents that day the following description was given of at least two marines entering a room where a number of women and children were sheltering:
At some point, at least two Marines entered the back bedroom and began shooting “as fast as they could pull the trigger while maintaining accuracy,” according to Maloney. “There was no evidence of burst mode.” The shots were precise and efficient, aimed squarely at heads and chests.
This narrative illustrates the destructive capacity now placed in the individual soldier’s hands. No longer is the soldier required, as with a bolt action rifle, to pull the trigger, draw back the bolt, re-aim, and then fire. Instead now, the soldier need only point, fire, and whilst keeping a bead on the target, fire again, and again.
The impact of this greater lethality impacts on both ‘military on military’ well as ‘military on civilian’ engagements. In the context of urban warfare, the combination of increased lethality and the greatly constricted combat zone (resulting from the very nature of the physical environment) soldiers find themselves in an urban environment, means soldiers have less time to react and less time to consider the appropriateness of any potential target, if they are to avoid injury or death themselves, as well as to others. It therefore creates a greater tendency (if not imperative) for soldiers to ‘shoot first and ask questions later’. Lineham, in his analysis of the events at Haditha observes:
Under the rules of engagement, an American service member can declare a target hostile just by shooting at it. This leeway is intended to prevent hesitation and ensure mutual support in situations where one soldier sees a threat that other members of his team don’t. Synchronisation is a core concept of small unit tactics.
This raises significant issues as to just who, in a chain of command is responsible for events such as occurred at Haditha on 19 November 2005. Is it the individual soldier who fired at targets (including women and children)? Or is it those further up the chain of command that implement a training regime that ignores or minimises international obligations for distinction? I argue that it is unreasonable to assert that events, such as that occurring at Haditha, were caused by the training regimes applied, revenge and reprisal were at the heart of this incident. Nevertheless, it is worth remembering the words of Marshall Vasily Chuikov who once famously said: ‘in street fighting a soldier is on occasion his own general’. I contend that training regimes that minimise the responsibility individual soldiers to question the appropriateness of the target contributes to the potential for the death or injury of civilians.
IV THE APPLICATION OF THE CONCEPT OF MILITARY OBJECTIVE
At the heart of military operations is the use of military force to achieve an outcome. Clausewitz suggests that the outcome is the destruction, or perhaps more appropriately, incapacitation, of the opponent’s military force. In modern times, it can be argued that the emphasis should not be upon destruction but rather the achievement of a ‘positive military outcome. Force should be seen as a mechanism by which control is achieved rather than a means of effecting destruction.’
Goodman has noted that most (if not all) states agree that objects which make a direct contribution to an opponent’s military actions is a legitimate military objective. As noted by Dinstein and others, however, the question of what constitutes a legitimate military objective is subject to debate. As he states, ‘the Devil is in the detail.’
It was this detail that bedevilled participants in the negotiations leading to the development of Additional Protocol 1. Parks observed that the provisions of Article 52 raised particular problem for some participants, particularly Western powers who saw the provisions as an attempt to hobble Western military superiority. He noted that, at least for some participants ‘the language of paragraph 3 (of Article 52) would tend to favour a defender over a military force engaged in offensive operations, and encourage a defender to camouflage military objectives as civilian objects”. He points out that this problem of concealment by defenders within civilian structures was recognised in the course of the Conference and that the Rapporteur recommended amendments to the draft Article to reflect the reality of combat. This recommendation was rejected by a majority of members.
This disparity of views on the appropriateness of Article 52 is particularly demonstrated by the approach taken by the US Goodman notes that whilst the United States acknowledges that attacks should be targeted towards ‘military objectives’, they do not accept that the attacks need be limited to direct contributions to military capacity of the opposing force. Instead the US’s position is that legitimate military targets include targets that make ‘indirect’ contribution to military action. Amongst these targets are targets that add to ‘war fighting’ capabilities, such as petroleum use in military vehicles, and ‘war sustaining’ capabilities such as petroleum used to generate income which in turn is used to fund the armed forces of a state or non-state actor.
To this point emphasis has been placed on the approach taken by the US. This is because the US is the world’s dominant military power and has been involved in more armed conflicts since WWII than any other nation. That said, it is worth noting that a number of other nations have also adopted a similar practice to the US even though they may be signatories to Additional Protocol 1. For instance, in the case of operations against ISIS in Syria and Iraq, France, the UK and Russia have all engaged in operations targeting petroleum installations, used for generating revenue for the ISIS regime. These operations have been aimed at the indirect benefit of degrading the ‘war sustaining’ capacity of ISIS. In other words, the nations participating in these attacks were adopting a targeting regime that is inconsistent with AP 1 Article 52(2).
Similarly, during the Persian Gulf War, Coalition air operations targeted electrical production facilities. The rationale for this targeting was that these facilities supplied energy used in the manufacture of chemical and biological weapons. Likewise, in Afghanistan, NATO forces targeted opium growing operations to deny the Taliban with revenue gained from taxes levied on farmers.
Finally, during the Iran Iraq War, as previously observed, Iraq targeted a range of Iranian civilian facilities, including its oil infrastructure. Iran accepted that these facilities were ‘or military significance, and therefore, a legitimate target’ for attack by Iraq.
Each of these examples of targeting are at odds with the provisions of AP 1 Article 52 which seeks to limit attacks to those ‘military objects’ that have a ‘definite military advantage’. As argued by Byron, this requirement means that there is ‘a concrete and perceptible military advantage rather than a hypothetical and speculative one,’ and yet in each of the examples used, the military advantage is far less ‘concrete and perceptible than the drafters of Article 52 envisaged.
The in practice acceptance of a more permissive interpretation of military objectives by many state actors has practical implications for war fighting in the twenty first century. As outlined earlier in this paper, a number of factors are coalescing to make warfighting potentially more intense and the type and location of targets more extensive. These factors increase the potential for disproportionate collateral damage, and civilian casualties.
For instance the use of precision guided weapons, which had brought about a significant improvement in accuracy has the potential to significantly widen the number of targets that may be attacked. Holland states: ‘if certain decision makers feel they can destroy a civilian object with no or little civilian death or injury, they may be tempted to ignore traditional distinction criteria at least as the doctrine relates to objects ... this development demonstrates a potentially inverse dynamic between military objective and incidental collateral loss.’
Coupled to the increased use of precision guided weapons is the impact of the media has upon political and military decision making. The need to minimise casualties, and particularly casualties amongst a nation’s own troops, is a factor in encouraging the use of weapons fired from a distance, as opposed to attacks occurring at closer distances. This increases the possibility of both intelligence failures (as is demonstrated in the bombing of the Al Firdos bunker on 13 February 1991 during the Persian Gulf War of 1991 or the bombing of the Chinese Embassy in Belgrade during Operation Allied Force) or simply misaimed or malfunctioning munitions (as in the case of attack on the train at Grdelica Gorge during Operation Allied Force).
It should also be recognised that although the CEP of many munitions has improved dramatically since WWII, that does not mean that there is not the potential for significant collateral damage. When speaking of modern GPS guided weapons, with a CEP of 10 to thirteen metres, Zehfuss noted that a thirteen metre radius in an urban area potentially overlaps adjacent buildings and public spaces (potentially such as roads and market places). Thus a munition that falls within the CEP does not necessarily hit the intended target. She also makes the sobering observation that a CEP for any munition means that half the weapons will land (somewhere) outside the expected circled. That is, for every weapon that falls within the CEP, an equal number fall outside that target area likely striking, in an urban environment, civilian objects causing damage, and resulting in death and/or injury to civilians.
Additionally there is the desire, particularly in the West, to see conflict begin and end quickly. This creates the motivation for military leaders to use all assets at their disposal, in an attempt to subjugate the opponent quickly. This not only encourages ‘decapitation strikes’ of not only military but also civilian leaders of an opposing regime, but potentially also attacks on a range of secondary targets which, which but for the availability of precision guided weapons would otherwise have been ignored.
Nevertheless, one should not ignore the role of non-state actors and their approach to the concept of ‘military objective’. Many authors have written on the approach to warfare by non-state actors. Beccaro, for instance, has written on the use of terrorism as a weapon. This weapon, she would argue is used to achieve multiple objectives including to ‘terrorise the population, to harass the enemy, to create insecurity’ and to project power. One can conclude that ‘terrorism’ fails to meet the accepted customary international humanitarian law standards with respect to distinction, or proportionality however, as Beccara notes, ‘[w]hen regular forces extensively outnumber insurgents or the terrain is not favourable for guerrilla warfare, the only tactic that remains is terrorism. The latter is also a useful tool to compel the local population to collaborate with the insurgents, to eradicate the local government from the territory and, consequently, to rule the targeted area.’ In short, the realities of war encourage (if not force) many non-state actors, to eschew concepts such as distinction, or as Le Blanc asserts, to ‘employ guerrilla tactics in densely populated urban areas makes hurting civilians almost unavoidable.’ Particularly when faced by forces possessing superior in numbers, and sophistication of weaponry, the tendency is to resort to methods of fighting that exploit the vulnerabilities of not just their military opponent but also the civilian population in which they are embedded.
One is therefore left with an asymmetry not just in the capacity of forces between many state actors and non-state actors. The asymmetry extends, as a result of disparity in military capacity to extend to how the opposing sides identify targets and execute attacks on those targets.
I argue that whilst many state actors adopt a more permissive approach to targeting military objectives than envisaged by Article 52, that approach is more restrictive than that used by non-state actors, such as ISIS, Hamas and Al Qaeda. As Le Blanc has pointed out, non-state actors are far more likely to engage in targeting civilians and civilian objects because of the very different objectives those non-state actors are seeking to achieve.
The diversity of approach to targeting between state and non-state actors is a troubling, and perhaps irreconcilable, outcome of the imbalance of military power between developed nations, particularly in the West and non-state actors, who are principally located within less developed nations. That however does not mean state actors, particularly in the West, should not again reconsider the issue of the appropriateness of current targeting approaches, notwithstanding the difficulty of restraining the targeting practices of non-state actors.
This paper has sought to concentrate on two levels of targeting of military objectives by state actors. The first is the targeting of objects particularly at a distance, and now most commonly from the air. In respect of these ‘distant targets’, any re-evaluation must start by accepting that the restrictive approach contained within Article 52 has failed in practice. A number of Western nations, particularly when acting in concert with the US, have attacked a range of targets that only provide an indirect military advantage. I suggest these permissive targeting practices can only increase with the propensity for conflict to occur within an urban environment. The outcome is for the potential for civilian death and injury to increase. That should cause Western nations to consider reviewing the targeting of ‘war sustaining’ objects at the very least.
The second level of targeting highlighted by this paper relates to the individual soldier. This also arises from the increased potential for combat to take place at close quarters in urban environments. Coupled with this environmental factor is the increased lethality of the weapons employed by individual soldiers. I suggest Western nations must review training procedures which removes of diminishes decision making from individual soldiers. There must be a strengthening of the ethical rules governing the actions of individual service personnel to help avoid a recurrence of the casual targeting of civilians as occurred at Haditha.
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1 David D Jividen, ‘Jus In Bello In The Twenty First Century: Reaping The Benefits and Facing The Challenges of Modern Weaponry And Military Strategy’ (2004) 7 Yearbook of International Humanitarian Law 113, 117.
 Marco Roscini, ‘Targeting and Contemporary Aerial Bombardment’ (2005) 54 International and Comparative Law Quarterly 411.
 Ibid 413.
 Timothy L Thomas, ‘The Caucasus Conflict and Russian Security: The Russian Armed Forces Confront Chechnya III. The Battle for Grozny 1–26 January 1995’ (1997) 10(1) Journal of Slavic Military Studies 50. See also William G Rosenau, ‘Every Room is a New Battle: The Lessons of Modern Urban Warfare’ (1997) 20(4) Studies in Conflict & Terrorism 371.
 Rosenau, above n 4, 382.
 Egle Murauskaite, ‘Saddam’s Use of Violence against Civilians during the Iran-Iraq War’ (2016) 70(1) Middle East Journal 47.
 Ibid 64–5.
 See for instance, Bard E O'Neill and Ilana Kass ‘The Persian Gulf War: A Political-Military Assessment’ (1992) 11(2) Comparative Strategy 213.
 Tom Ruys, ‘The Syrian Civil War and the Achilles' Heel of the Law of Non-International Armed Conflict’ (2014) 50 Stanford Journal of International Law 247.
 Theodor Meron, ‘Remarks, Application of Humanitarian Law in Noninternational Armed Conflicts’ (1991) 85 American Society International Law 83.
 Major Jeanne M Meyer, ‘Tearing Down the Façade: A Critical Look at the Current Law on Targeting The Will of The Enemy and Air Force Doctrine’ (2001) 51 The Airforce Review 146.
 Ibid 148.
 W Hays Parks, ‘Air War and the Law of War’ (1990) 32 The Air Force Law Review 1, 8.
 Oscar Schatchter, ‘Implementing Limitations on the Use of Force: The Doctrine of Proportionality and Necessity’ 86 American Society of International Law 39, 41.
 Such as the US, Israel and others. Schatchter, above n 16.
 See for instance Meyer, above n 12, 166–9. See also Raymond W Leonard, ‘Learning from History: Linebacker II and US Air Force Doctrine’ (1994) 58(2) The Journal of Military History 267.
 Meyer, above n 12, 167.
 Roscini, above n 2, 412; Yoram Dinstein, ‘Legitimate Military Objectives under the Current Jus In Bello’ 78 International Law Studies 140.
 Parks, above n 15, 31. See also Meyer, above n 12, 151–2.
 Parks, above, n 15, 35.
 Parks, above n 15, 27–8.
 Parks, above n 15, 64–7.
 Yves Sandoz, ‘Preliminary Remarks to the Advisory Opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons’ (1996) 313 International Review of the Red Cross 501, 501–2.
 See also Parks, above n 15, 67.
 Hans-Peter Gasser, ‘A Brief Analysis of the 1977 Geneva Protocols’ (1986) 19(4) Akron Law Review 525.
 Ibid 525.
 Roscini, above n 2, 414.
 Ibid. Also see above n 23.
 Parks, above n 15, 70.
 Parks, above n 15.
 Ibid 74.
 Ibid 79–80.
 Roscini, above n 2, 414. See also above n 24.
 Ibid. See also above n 5 and, for instance: International Court of Justice, Advisory Opinion on the Legality of the Threat of Use of Nuclear Weapons [July 8, 1996] 35 International Legal Materials 809.
 Roscini, above n 2, 415.
 See also statement of Jamie Shea referred to by Roscini, above n 2, 414.
 Robert Kolb, ‘Review Essay: Military Objectives in International Humanitarian Law’ (2015) 28 Leiden Journal of International Law 691, 691–700.
 Roscini, above n 2, 411.
 HG Wells, The War in the Air (George Bell and Sons London, 1908) 240.
 Maja Zehfuss, ‘Targeting: Precision and the Production of Ethics’ 17(3) European Journal of International Relations 543.
 Ibid 545.
 Paul Whitcomb Williams, ‘Legitimate Targets in Aerial Bombardment’ (1929) 23 American Journal of International Law 570, 571. Also see above n 4.
 Anthony Beevor, The Second World War (Weidenfeld & Nicholson, 2012) 79–98.
 Ibid 612–13.
 O'Neill and Kass, above n 8, 226–8.
 Ibid 228.
 Kolb, above n 40, 691.
 Rosenau, above n 4, 372.
 Beevor, above n 46, 596–601.
 Ibid 635.
 Rosenau, above n 4, 372.
 Michael John-Hopkins, ‘Regulating the Conduct of Urban Warfare: Lessons from Contemporary Asymmetric Armed Conflicts’ (June 2010) 92(878) International Review of the Red Cross 469, 471. See also Joerg Le Blanc, ‘The Urban Environment and its Influences on Insurgent Campaigns’ (2013) 25(5) Terrorism and Political Violence 798.
 Stephen D Davis, ‘Controlled Warfare: How Directed-Energy Weapons Will Enable the US Military to Fight Effectively in an Urban Environment While Minimizing Collateral Damage’ 26(1) Small Wars & Insurgencies 49.
 Davis, above n 56, 50.
 John-Hopkins, above n 55, 469.
 Ibid 470.
 Rosenau, above n 4, 373–5.
 Ibid 373.
 John-Hopkins, above n 55, 472. See also Rosenau, above n 4, 374–5.
 John-Hopkins, above n 55, 471.
 Michael Schkolnik, ‘“Mowing the Grass” and Operation Protective Edge: Israel’s Strategy for Protracted Asymmetric Conflict with Hamas’ (2017) 23(2) Canadian Foreign Policy Journal 185.
 Zehfuss, above n 43, 550.
 Joint Chiefs of Staff, ‘Joint Vision 2010’ <http://webapp1.dlib.indiana.edu/virtual_disk_library/index.cgi/4240529/FID378/pdfdocs/2010/Jv2010.pdf> .
 Joint Chiefs of Staff, above n 66, 21.
 Michael N Schmitt, ‘Belum Americanum: The US View of the Twenty-First Century War and its Possible Implications for the Law of Armed Conflict’ (1998) 19 Michigan Journal of International Law 1051. See also Zehfuss, above n 43, 550.
 Schmitt, above n 68, 1570.
 Ibid 1064.
 O’Neill and Kass, above n 8.
 O’Neill and Kass, above n 8, 225.
 Zehfuss, above n 43, 556.
 Glenn E Robinson, ‘A War Examined Gaza 2014: Hamas’ Strategic Calculus’ (2015) 44(4) Parameters: US Army War College 91.
 Ibid 92.
 Thomas P Ehrhart, Increasing Small Arms Lethality in Afghanistan: Taking Back the Infantry Half-Kilometer (Monograph, School of Advanced Military Studies, United States Army Command and General Staff College, 2009).
 Ibid 5.
 Ehrhart, above n 76, 6.
 Ibid 7.
 Ibid 11.
 Ibid 18.
 Adam Lineham, Just Kills: How The Marine Corp Blew the Biggest War Crimes Case Since Vietnam (23 May 2018) Task & Purpose <https://taskandpurpose.com/true-story-marine-corps-blew-biggest-war-crimes-case/>.
 Alan F Williams, ‘Overcoming the Unfortunate Legacy of Haditha, The Stryker Brigade “Kill Team” and Pantano: Establishing More Effective War Crimes Accountability by the United States’ (2013) Kentucky Law Journal 101.
 David A Depula, Effects-Based Operations: Change in the Nature of Warfare (Report, Aerospace Education Foundation, 2001) <https://secure.afa.org/Mitchell/reports/0901ebo.pdf>.
 Ibid 5.
 Ray Goodman, ‘Targeting “War Sustaining” Objects in Non-International Armed Conflict’ (2016) 110 The American Journal of International Law 663.
 Ibid 664.
 Dinstein, above n 3, 172.
 Parks, above n 15, 136–8.
 Ibid 74.
 Ibid 136.
 Ibid 137.
 Goodman, above n 87.
 Ibid 664.
 Ibid 671.
 Ibid 674.
 Ibid 671–2.
 Ibid 676.
 Christine Byron, ‘International Humanitarian Law and Bombing Campaigns: Legitimate Military Objectives and Excessive Collateral Damage’ (2010) 13 Yearbook of International Humanitarian Law 175.
 Ibid 182.
 Joseph Holland, ‘Military Objective and Collateral Damage: Their Relationship and Dynamics’ (2004) 7 Yearbook of International Humanitarian Law 35.
 Ibid 71.
 Roscini, above n 2, 420.
 Jividen, above n 1, 128.
 Ibid 127. See also Zehfuss, above n 43, 549–50.
 Zehfuss, above n 43, 549.
 Roscini, above n 2, 419.
 Andrea Beccaro, ‘Modern Irregular Warfare: The ISIS Case Study’ (2018) 29 Small Wars & Insurgencies 207, 207–28. See also Le Blanc, above n 55.
 Le Blanc, above n 55.