179 CHAPTER 7
LAWFUL HUMAN TARGETS
The fundamental principle underlying the legal framework applicable to conduct of hostilities is that of distinction. Parties to a conflict must at all times distinguish between civilian objects and military objectives, and between civilians and combatants1. Operations may be directed only against military objective and combatants; it is prohibited to target civilian objects or civilians2. Thus, any targeting operation directed at a civilian object or civilian is prohibited unless the protections have been suspended due to the civilian directly participating in hostilities or the civilian object being used to engage in acts “harmful to the enemy”3.
As has already been noted, civilian objective is defined in contradiction to military objective. Civilian objects are all objects that are not military objectives4. while military objectives are those objects which “by their nature, location, purpose or use make an effective contribution to military action and whose partial or total destruction, capture or neutralization in the circumstances ruling at the time, offers a definite military advantage”
180
(1) Members of the armed forces of a party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.
(2) members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions;
(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance (c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war5.
The definition of a civilian is framed in the negative. Any person that is not a combatant within the above definition is a civilian. If there is any doubt as to a person‟s status, they must be considered a civilian6. While there is frequent reference to “unlawful combatants” by states, contemporary International Humanitarian Law does not recognize any status other than combatants and civilians7. Terrorists that are likely to be targeted for killing do not meet the requirements to be considered combatants. They are not members of the armed forces of a state participating in the conflict. While organized terrorist groups may have a command structure with an individual responsible for his
5 . See Article 43(2) of the 1997 Protocol Additional to the Geneva Conventions of 12 August, 1949, and relating to the protections of victims of International Armed Conflicts (Protocol II)(P1).
6 . Inter-American Commission on Human Rights, Report on Terrorism and Human Rights, OEA/Sevil/V/116 Doc. 5 rev. 1 corr., 22 October 2002, para. 68.
7 . Robert Wagne Gehring, Protection of Civilian Infrastructures (1978) 42:2 Law and Contemporary Problems 86 a6 105-109, with numerous further references to practice and doctrine.
181
subordinates, none of the other requirements are met. There is no fixed distinctive symbol, arms are not carried openly and operations are not conducted in accordance with laws and customs of war. In most instances, terrorist groups strive to achieve the opposite of these requirements.
In international armed conflicts, the term “combatants” denotes the right to participate directly in hostilities8. Inter-American Commission has stated, “the combatants privilege is in essence a license to kill or wound enemy combatants9” and destroy other enemy military objectives. Consequently, combatants cannot be prosecuted for lawful acts of war in the course of military operations even if their behaviour would constitute a serious crime in peace time. They can be prosecuted only for violations of IHL in particular for war crimes.
Once captured, combatants are entitled to prisoner-of-was status and to benefit from the protection of the Third Geneva Convention. Combatants are lawful military targets. Generally speaking, members of the armed forces (other than medical personnel and chaplains) are combatants. Under International Humanitarian Law, there may be no category of “quasi-combatants”, i.e of civilians contributing so fundamentally to the military effort or the war effort (e.g., workers in ammunition factories) that they lose their civilian status although not directly participating in hostilities. If the civilian population shall be protected, only one distinction is practicable. The distinction between those who (may) directly participate in hostilities, on the one hand, and all others, on the other hand, who do not, may not, and cannot hinder the enemy military from obtaining control over
8 . Those specially protected objects, may not be used by those who control them for military action and should therefore never become military objectives. If they are however used for military purposes, even they can under restricted circumstance become military objectives.
9 . APL, Article (2). Hostile acts include not just combatactions but also destroying installations or military equipment
182
their country in the form of a complete military occupation – regardless of whatever their contribution to the war effort may be. To allow attacks on persons other than combatants would violate the principle of necessity, because victory can be achieved by overcoming only the combatants of a country-however efficient its armament producers and however genial its scientists, and politicians may be. The suggestion that some civilians may be targeted because of their fundamental contribution to the war effort, although they do not directly participate in hostilities may be based on a misunderstanding or a failure to distinguish between objectives that may be attacked and persons who may be the target of an attack.
Military objectives, such as armament factories, may be attacked and subject to the principle of proportionality, the attack on military objectives does not become unlawful because of the risk that a civilian who works or is otherwise present in a military objective may be harmed by such an attack.
There is therefore no military necessity that the armament worker or the weapons development scientist might be targeted individually, e.g. through aerial bombardment of the residential area where he lives or by enemy ground forces capturing his factory. In the latter example, the question would furthermore arise as to how he could “surrender. To allow such attacks would further put the rest of the civilian population at risk. Similar thoughts must be expressed concerning politicians, civil servants, scientists and propaganda officials10. In addition, it would be very difficult to draw a line why should, e.g. international law professors who justify the legitimacy of a war (or of violations of International Humanitarian Law) be less legitimate targets than foreign ministry officials
10 . M Bothe, K J Patsch and W A Solf, New Rules for Victims of Armed Conflict: Commentary on the two 1977 Protocols Additional to thr Geneva Conventions of 1949, ( The Hague, Martinus Nishoff Publisher, (1982) 746
183
or TV speakers? In both world wars, German and British men could not have been incorporated so extensively into the armed forces if they had not been replaced by women in their functions essential for the society and the continuation of the war. Now, were those women all quasi-combatants?