The second component of the text provided for in Article 52(2) establishes that even an object that makes an effective contribution to military action may nevertheless fail to qualify as a military objective if, in the circumstances, its “destruction, capture or neutralization” would not offer a definite military advantage. The argument here is that, this requirement is a priori satisfied in the case of objects that are military objectives by
79 . Customary IHL, Vol. 1 supra note 29 at 36
80 . Prosecutor V. Galic, IT – 98-29-T, Judgement of December, 2003 at para 51.
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virtue of their nature. That is to say that, a piece of artillery, to take an obvious example, would always constitute a legitimate military objective because there is a presumption that its destruction, capture or neutralization offers the attacking party a definite military advantage. To assert to the contrary appears counter- intuitive to the extent that the law is concerned with limiting damage to civilians and civilian objects. Imposing where a target is clearly part of the enemy‟s arsenal diminishes the importance of this burden in cases where the status of the target is debatable. A definite military advantage could be seen as
“concrete and perceptible” rather than “hypothetical and speculative81.
This wording is similar to what is found in the provisions codifying the principle of proportionality, where the military advantage anticipated from an attack is weighted against the likelihood of civilian losses and damage. The proportionality formulation refers to collateral damage that “would be excessive in relation to the concrete and direct military advantage anticipated.82 This latter wording appears to introduce an additional element of specificity. There is no indication in the documents of the CDDH as to why different expressions were chosen.83 It can nonetheless be posited that at the stage of target selection, it is sufficient for an attacking party to determine that the object is capable of yielding a definite military advantage; whereas in the context of assessing proportionally, the military advantage anticipated must be established with more certainty and is also then qualified in relation to potential collateral damage. But either way („definite‟ or „concrete and direct‟), the standard remains high and removed from something that is hypothetical. In practical terms, it requires the responsible commander
81 . Solf, Article 52 in Bothe et al Op cit.
82 . API Article 51 (5)(b) and API Article 57 (2)(a)(iii)
83 . ICRC Commentary on API op cit p. 13 at 2027.
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to be able to clearly articulate the nature of the military advantage expected from the attack and to produce evidence supporting this expectation.
Conversely, with respect to the second prong of the Article 52 (2) test, one of the issues that arises in attempting to define what constitute a „definite military advantage‟ is whether it must accrue from a single attack. That is to say, must an attacking party demonstrate that destroying, capturing or neutralizing the targeted object will provide it with a definite military advantage or is it sufficient for it to show that attacking the object will contribute to obtaining a definite military advantage? The First Additional Protocol relies on a fairly specific concept of „attack‟ at Article 49(1). If the advantage has to result from the specific military operation that constitutes the „attack‟, this suggests a rather narrow understanding of „definite military advantage.84
During the CDDH negotiations, several states indicated that they will consider the military advantage to be anticipated from a attack as a whole and not from parts thereof.85 Although legal standard in the provisions dealing with the rule on proportionality, it is logical to conclude that it also applies to the wording in Article 52(2). But this interpretation is not unanimously agreed upon and remains a point of controversy.
The danger in adhering to the view that the term „attack‟ can encompass a series of actions is that it will become so broad as to dilute the concept of definite military advantage and the obligations deriving from this concept. In order for the requirement that an attack provide a definite military object retain any meaning at all, it must correspond to a concrete situation on the ground.
84 . According to API Article 49(1) „Attacks‟ means acts of violence against the adversary, whether in offence or in defence‟.
85 . K Dormann, Elements of War Crimes under the Rome Statute of the International Criminal Court, Sources and Commentary, (Cambridge; Cambridge University Press, 2003),171.
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Any civilian object can become a legitimate military target. This is by virtue of the criteria of location, purpose or use, together with the tactical and strategic goals that evolve throughout the duration of an armed conflict. The status of an object is therefore dynamic. This means that a target list must constantly be updated in order to accurately reflect changes in the legitimacy of military objectives. Recent conflicts raise the question of the extent to which belligerents consider the two-prong test of effective contribution to military action and definite military advantage in drawing up their target list. Civilian objects are making their way into the category of military objectives with little in the way of justification. This could be a function of advances in technology enabling precision attacks and limiting the risk of collateral injury.
Whatever the reason, the result is a potential for widening the category of objects that can be targeted and therefore, an increased level of risk of civilians and civilian property. In order to address this trend while at the same time exploring avenues for adapting the legal regime to new battlefield realities, some contentious targets that have so far only been alluded to deserve attention. These illustrate the penumbra of doubt in the definition of military objectives – the current state of debate about the edge of Article 52(2).