Legitimate military targets in the ongoing Ukraine/Russia conflict
The recent events that have occurred in Ukraine raise the issue of legitimate military targets. One should be aware that the conduct of hostilities is framed by rules and principles established by International Humanitarian Law (IHL). IHL aims at minimizing human suffering during armed conflicts by reaching a careful balance between the foundational principles of humanity and military necessity. The principle of humanity protects those who are not or no longer actively participate in hostilities. And as a limiting principle, military necessity restrains the lawful use of force to what is needed to achieve a military goal and prohibits excessive violence to achieve this aim. From these, the principle of distinction draws a strict line between civilian and military targets. Both parties of the ongoing Ukraine/Russia conflict are required not to deliberately target civilians and lead indiscriminate attacks[1].
Who may be lawfully targeted?
The principle of distinction places on the Parties to a conflict the obligation to distinguish at all times between civilians and combatants and civilian objects and military objects. It explicitly states that attacks must not be directed at civilians and civilian objects, but may only be directed against combatants or military objectives.
Combatants may be defined as those who do not enjoy the protection against attacks accorded to civilians. However, all civilians are not always protected by IHL, or may lose their status; civilians who directly participate in the hostilities may be legitimately targeted. ” To determine whether there is direct participation , the ICRC[2] provided 3 cumulative criteria: threshold of material harm, direct causation between the act and the harm, link to the armed conflict. In other words, persons participate directly in hostilities when they carry out acts, which aim to support one party to the conflict by directly causing harm to another party, either directly inflicting death, injury or destruction, or by directly harming the enemy’s military operations or capacity. For example, a civilian engaged in military operations (planification, deployment, intelligence collection) will lose its protection status; while a civilian working for the government or transporting non-military materials to any party is still protected. In case of doubt, the presumption of civilian status prevails. Moreover, this participation must be on a voluntary basis. In case of forced participation, such as human shields hiding fighters, civilians remain civilians.
Civilian objects are defined in opposition to military objects, as objects which are protected against attack[3]. State practice revealed by national military manuals help to have a better understanding of what could be considered as civilian objects. The following non-exhaustive list provide some examples: towns, cities, villages, residential areas, dwellings, buildings and houses and schools, civilian means of transportation, hospitals, medical establishments and medical units, historic monuments, places of worship and cultural property, and the natural environment.
However, a civilian object may be targeted under exceptional circumstances.
A civilian object may lose its protected status if and for such time as it becomes a military objective. A clear definition of military objective is the following: an object or institution has a military dimension as long as by its nature, location, purpose or use makes an effective contribution to military action. And its destruction at that time offers a concrete military advantage. For example, a bridge may well be used for tactical defence purposes.In case of doubt, the presumption of civilian status prevails. IHL grants some objects special protection either because of their particular importance for the protection of victims (medical units and transports[4]), civilians[5] or mankind (cultural property[6]and natural environment[7]). These can however still be targeted under exceptional circumstances. Only works and installations containing dangerous forces[8] (such as nuclear plants) must not be attacked in all circumstances.
Having said that, IHL still allows for civilian casualties and some destruction of civilian objects, as collateral damages. According to the principle of proportionality[9], they must not be “excessive in relation to the concrete and direct military advantage anticipated”[10]. This contextual assessment remains difficult to apply, as it is inevitably dependent on subjective value judgements. But when this principle is respected (a military objective is targeted but civilians or civilian objects may be affected), precautionary measures must be taken[11], such as in the choice of weapons, method of attack and giving advance warning.
Based on IHL, International Criminal Law established a repressive system to prohibit indiscriminate military attacks. Under the Statute of the International Criminal Court, both “intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities”[12] and “againstcivilian objects, that is, objects which are not military objectives” [13], constitute a war crime in international armed conflicts. However, establishing concrete evidence to hold perpetrators accountable for such violations would be particularly difficult, as there is still a need of an amendment to list “weapons, projectiles and material and methods of warfare (…) which are inherently indiscriminate in violation of the international law of armed conflict”[14]. And “attack directed against any civilian population” may even amount to a crime against humanity[15]. However, the threshold here is higher, as the attack must involve “multiple commission of acts (…) pursuant to or in furtherance of a State or organizational policy”[16].
To conclude, the definition of legitimate military targets prohibits indiscriminate attacks and deliberate targeting on civilians or civilian objects. Protecting civilians and civilian objects should not only rely upon the enforcement of sanctions, but rather on the irrevocable obligation to respect the principle of distinction, proportionality and precaution by the Parties to the conflict. More the States recognize to be bound by international settled rules, more international humanitarian law will be strength.
[1] Articles 48, 51(2) and 52(2) of Additional Protocol I of the Geneva Conventions
[2] https://www.icrc.org/en/doc/assets/files/other/icrc-002-0990.pdf
[3] [CIHL, Rule 9]
[4] GC I, Arts 19(1) and 36(1); GC II, Arts 22, 24-27, and 39(1); GC IV, Arts 18-19 and 21-22, P I, Arts 20 and 21-31; P II, Art. 11
[5] P I, Art. 54 [CIHL, Rules 53 and 54]
[6] P I, Art. 53; [CIHL, Rules 38-40]
[7] P I, Arts 35(3) and 55 [CIHL, Rules 44 and 45]
[8] P I, Art. 56 [CIHL, Rule 42]
[9] P I, Art. 51(5)(b) [CIHL, Rule 14]
[10] PI, Art. 51(5)(b)
[11] HR, Arts 26 and 27; GC IV, Art. 19 (concerning hospitals); P I, Art. 57(2)
[12] ICC Statute, Article 8(2)(b)(i)
[13] ICC Statute, Article 8(2)(b)(ii)
[14] ICC Statute, Article 8(2)(b)(xx)
[15] ICC Statute, Article 7(2)(a)
[16] Ibid
