Jus ad Bellum and Jus in Bello Targeting
There is a growing tendency to devise a double targeting criterion for attacks: one for jus ad bellum (JAB); and one for jus in bello (JIB), and to require that the conditions for each are met so that an attack or other belligerent action with similar results can be deemed lawful. By this view, according to the targeting requirements for JIB must be directed against a “military objective” in the sense of Article 52(2) of Additional Protocol I of 1977 to the Geneva Conventions of 1949 (AP I), including the targeting of combatants and civilians directly participating in hostilities according to Articles 50 and 51, of AP I.
Additionally, in the sense of JAB, the target must be a “military target,” i.e., it must first be a military objective under JIB, and further, its destruction, capture, or neutralization must be connected with the force to be halted, repelled or prevented in self-defense. In this sense, the defensive purpose and necessity of the attack must be proved. If a military objective in the sense of JIB is attacked, but that objective is not the source or origin of the armed attack to be halted, the targeting requirement of JAB is not satisfied; the defensive action is then not necessary under the international law of self-defense (and, by extension, of the law under other titles, such as Chapter VII authorizations by the UN Security Council).
In short, there is an additional layer of obligations under JAB targeting in contrast to “mere” JIB targeting; JAB requirements do not necessarily need to be fulfilled for JIB. The question posed in this short post is to enquire whether that position can be upheld in an unqualified manner or whether some nuances must be acknowledged.
The Double Standard
The legal basis of this double targeting standard is said to be found in the jurisprudence of the International Court of Justice (ICJ) on self-defense and in State practice. In Islamic Republic of Iran v. United States of America (the Oil Platforms case of 2003), the ICJ posited that it had to be shown that the oil platforms attacked by the United States were, among other things, a legitimate military target according to the rules governing self-defense. In that regard, the Court explained, “The United States must also show that its actions were necessary and proportional to the armed attack made on it, and that the platforms were a legitimate military target open to attack in the exercise of self-defence.” Finding that the oil platforms did not perform a military function, the Court rejected the necessity (as a condition of self-defense) to attack these platforms, noting,
In the case both of the attack on the Sea Isle City and the mining of the USS Samuel B. Roberts, the Court is not satisfied that the attacks on the platforms were necessary to respond to these incidents. In this connection, the Court notes that there is no evidence that the United States complained to Iran of the military activities of the platforms, in the same way as it complained repeatedly of minelaying and attacks on neutral shipping, which does not suggest that the targeting of the platforms was seen as a necessary act (para. 76).
In the context of State practice, incidents like Israel’s strike against Iraq’s Osirak nuclear reactor in 1981 or South African action in neighboring States in 1986, as well as various U.S. and UK actions, amongst others, are mentioned to the same effect.
Intersecting Analyses
The first thing to be done is to distinguish our questions from another one. The point here is to test whether JAB targeting always goes beyond JIB targeting and requires additional conditions to be met, linked to the defensive purpose. That would imply that the law of targeting under JIB is rarely, if not never, standalone, i.e. that a commander cannot only rely on AP I when making targeting decisions. JAB would widely inform his or her decisions, possibly each time.
From this point, another one must be separated, namely, that targeting that falls afoul of JIB conditions can also violate the necessity and proportionality criteria of the law of self-defense. That is, targeting a “non-military objective” will imply also a JAB violation. There is authority for this point in academic legal writing (p. 145), in an advisory opinion of the ICJ (Threat or Use of Nuclear Weapons advisory opinion, para. 42) and in further practice by an international organization (European Union, Independent International Fact-Finding Mission on Georgia, Report, 2009, vol. II, p. 272). Our question turns then on whether JAB influences JIB, whereas the other point looks at whether JIB influences JAB. There seems to be no doubt on the latter point; the only question is the way of construing the precise legal relationship.
There are also some further JAB and JIB imbrications in targeting, which will not be reviewed in depth here. But consider that there is a range of targeting activity that does not fulfil the JAB criteria of necessity of defense. Thus, it would be contrary to JAB. At the same time, it can also be contrary to JIB; indeed, targeting under Article 52(2) of AP I supposes a military advantage for an object to be a military objective whose attack is for this reason allowed. However, if an attack is not defensive, for instance it is on a military installation far remote from some single initial armed attack, there may at once be a violation of JAB targeting (no defensive necessity) and JIB targeting (no military advantage). The two standards are then perfectly aligned.
Do the JAB requirements for defensive action and necessity impose additional criteria for targeting under AP I standards? Recall first that there must not be a faulty conflation of JAB and JIB to reach such a result. It is also possible to simply hold that JIB requires X, Y and Z, and that JAB, separately, asks for A, B and C. Consequently, for a State to respect international law, it must fulfil the requirements of both bodies of law cumulatively. In other words, there is no disregard of the distinction between JIB and JAB here, but there may simply be a layering of separate and additional criteria to ensure a correct global legal response.
A further distinction must be made. In case of limited (or isolated) attacks where necessity and proportionality play a significant role, the JAB criterion limits the possible targeting responses. Contrariwise, if the armed attack is large in scale, such as full invasion of territory, the criteria of JAB necessity and proportionality fade away and the State attacked can normally use the full spectrum of military objective targeting responses under JIB, all being considered “defensive.”
An example for the first category is available in the Oil Platforms case mentioned above. Attacks against two ships were answered by counterattacks on three platforms. This is almost tit-for-tat. A low-level use of force was countered by a limited counterforce. In such a case, necessity and proportionality criteria are paramount to keep the reaction within reasonable bounds. Responses against military objectives under IHL not related to the attack would quickly provoke a degeneration of an isolated military incident into a full-fledged armed conflict or war. This cannot be countenanced in a legal order which, like all other legal orders, seeks in the first place to keep the peace and to avoid spirals of violence. Thus, to give an example, a limited border incident does not justify targeting military installations at the other geographical end of the State considered responsible for the incident.
An example of the second category involves the current international armed conflict in Ukraine. Here, there is a general invasion of the territory, partially repelled, and constant air attacks across the entire victim State. Here, “necessity” for defense casts a very wide net. Thus, for example, if Ukraine attacked certain military objectives in the extreme east of Russia, to open some diversion and bind some military forces there, one could not say that this is “unnecessary” because the triggering armed attack has not been conducted from that region and that installation. Roberto Ago has already remarked that necessity and proportionality are important and stringent criteria in low-level uses of force, but not to the same extent in “states of war” following a fully-fledged invasion.
Conclusion
The ultimate question therefore concerns the type of armed attack. If the setting is one of a limited use of force (attack on some installations, persons, etc.), JIB targeting is secondary and JAB targeting is paramount. The defensive purpose is the controlling criterion in the shaping of military reactions. If, conversely, the setting is one of a whole-spectrum ongoing use of force, notably through a war of invasion and destruction, JAB targeting becomes so marginal as to almost disappear, while JIB targeting is remaining paramount.
The line between both situations may not always be easy to draw. Such demarcation may be facilitated by the corollary question whether it is reasonable to require the attacked State to confine itself to limited JAB objectives or whether that limitation deprives it from an effective defense and, thus, plays into the hands of the aggressor. In more objective terms, the broader the forms of ongoing attack are, and the more it is “necessary” to defend oneself, there more the analysis pushes targeting towards JIB requirements.
What can also be seen is that the importance of JAB targeting can depend on the type of armed attack, while JIB targeting remains always essential and can never be cast away. That situation shows that targeting issues are mainly to be addressed under JIB, and that in the cases where a sharing of JAB and JIB occurs (i.e. in cases of low-level incidents or localized attacks), the military commander is more likely to focus on JIB targeting, whereas the political branch of the State and its legal advisors will focus on JAB targeting. This will presumably be done through precise mandates and limits imparted upon the military commanders and their forces.
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Robert Kolb is a Professor of Public International Law at the University of Geneva and former legal staff member of the ICRC. Prof Kolb is also a member of the legal section of the Swiss military high command (IHL section).
The views expressed are those of the author, and do not necessarily reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense.
Articles of War is a forum for professionals to share opinions and cultivate ideas. Articles of War does not screen articles to fit a particular editorial agenda, nor endorse or advocate material that is published. Authorship does not indicate affiliation with Articles of War, the Lieber Institute, or the United States Military Academy West Point.
Photo credit: U.S. Army, Army Sgt. Danielle Rayon
