Military Considerations and the Ntaganda “Attack” Question

This post concludes our series featuring the International Criminal Court’s recent hearings on the legal notion of “attack.” As co-editors-in-chief, we wish to extend our sincere gratitude to our contributors. As scholars of the law of war, we wish to add a few concluding thoughts concerning the importance and broader significance of the Court’s forthcoming decision. In our opinion, few interpretive questions are more weighty or timely for armed forces and the lawyers advising them than those surrounding the meaning of “attack” under the law of war.

Series Contributions

Our goal in convening the “attack” series was to alert our readers to a range of views on this exceedingly important and timely interpretive issue. Our managing editors’ introductory post described the factual context of the issue before the Court. As our contributors’ posts illustrated, the hearings and briefs presented the Ntaganda Appeals Chamber a broad range of possible interpretations of the term “attack.”

The posts of the Public International Law and Policy Group and faculty from the University of Pretoria advocated a broad meaning of the term “attack.” Their view of attacks would include acts of pillage, looting, or destruction outside the conduct of hostilities between adversaries, in which a party controls the location and surrounding circumstances. The Public International Law and Policy Group post by Eian Katz, Professor Milena Sterio, and Jonathan Worboys emphasized that the notion of “attack” is not exclusive to treaty provisions that address targeting operations; it is also mentioned in protection of medical facilities and cultural property. Meanwhile, the University of Pretoria post by Professor Christof Heyns, Professor Stuart Casey-Maslen, and Thomas Probert showcased how the notion of “attack” is common ground between the Hague and Geneva traditions of the law of war. They suggest that attack is a relevant concept even among the latter’s protections of persons and property “in the hands of a Party to the conflict.” And both posts included persuasive resort to a putative object of international criminal law and the law of war, namely, to safeguard vulnerable persons and objects from violence and exploitation.

By contrast, posts by COL (ret.) Dick Jackson (drawn from a brief he submitted with Professors Corn, Jenks, Jensen, and Schoettler) and by Professor Newton argued in favor of a narrow meaning of the term “attack.” Professor Newton emphasized that because the Rome Statute’s resort to the term “attack” reflects incorporation of the law of war, it should be limited to acts of violence between adversaries, in a word “combat.” Meanwhile, COL Jackson’s post showcased an insightful motive-based understanding of attack. He argued that a motive to “cause harm to the adversary” was a key substantive element of an attack under the law of war, which should extend to that term’s operation in international criminal law proceedings. As such, a wide range of activities in war, including supply deliveries, mobility and counter-mobility operations, and destruction of captured equipment that support hostilities, but are not undertaken against an enemy, must not be considered attacks.

Our contributors’ posts, and their respective amicus curiae briefs, thus make clear the Ntaganda Appeals Chamber faces an important interpretive choice between distinct, and in many respects conflicting, meanings of “attack” as a term of art. We, like our contributors and of course the parties to the case, anxiously await the Appeals Chamber’s decision. 

Implications Beyond the Present Case

But, as many of our contributors suggest in their full briefs to the Appeals Chamber, and as Professor Jachec-Neale indicated in her post, resolution of the meaning of “attack” potentially involves far more than either confirming or overturning acquittals of charges in a single case or even a doctrinal clarification of the Rome Statute. The Appeals Chamber itself rightfully recognized that the Court’s decision “may have implications beyond the present case” when it invited the amicus curiae briefs (Order inviting amici curiae, para 11). Though it is acknowledged that only States make international law, it would be naïve to ignore the impact of the ICC and other tribunals.

The dialogue prompted by the Appeals Chamber’s invitation of amicus briefs appears to be the most extensive development on the attack threshold to date in an international criminal proceeding. This is remarkable considering the concept of “attack” is one of the most basic concepts in the law of armed conflict and military operations. Just as remarkably, the submitted amici’s observations in their briefs and posts may amount to the most comprehensive discussion of the concept of “attack” in law of war discourse.

As the first serious deep dive into the term “attack,” it is critical that the Appeals Chamber consider not only the adjudicative purpose of international criminal law but also the practical and military operational implications of their decision. The Appeals Chamber’s decision should make great effort to honor and incorporate the delicate balance between military necessity and humanity that underlies the entirety of the law of war. To do otherwise risks setting a precedent for what constitutes an “attack” that is confusing and unreasonable for the military practitioner (potentially diminishing the likelihood of compliance). Conversely, the Court could set a precedent that ignores appropriate humanitarian considerations (potentially leading to abuse or worse). Accordingly, without carefully calibrating the decision to account for these countervailing considerations, the Appeals Chamber risks both undermining its credibility with States as well as the effective regulation of ongoing and future warfare.

For example, it is true that a broad understanding of “attack” or a nuanced, Rome Statute-specific notion of the term might punish and deter a wider range of abuses in war. Indeed, the advocate for the Office of the Prosecutor championed these goals, dismissing fears of disassociating the Rome Statute’s use of the term from the law of war as not “realistic” (transcript page 12, line 5). Yet, the Office of the Prosecutor greatly underestimates the diligence and discipline required of States, other tribunals, scholars, and practitioners to maintain such a distinction. Further, and more practically, a wider definition of “attack” potentially renders aspects of warfare—such as maneuver damage, requisitions, propaganda, detention operations, and a myriad of other military operations—subject to onerous targeting rules and protocols not designed or intended by States to govern such operations. The collective costs of these restraints would place an extraordinary burden on military operations and not reflect battlefield realities.

Consideration of a range of military activities not regarded as attacks—where the military purpose of the act is not to cause harm or when the harm is ancillary to the military purpose of the mission—may be instructive. Such activities include, for example, aerial delivery of food or medical supplies which may unintentionally damage objects below; causing damage to roads and fields by the movement of heavy equipment; breaching walls or doors to move through buildings in order to minimize exposure to enemy fire; razing a perimeter of land or making structural changes within buildings in order to establish fortifications; or, firing smoke shells to the open air.

Whether the Appeals Chamber’s decision will give due consideration to the military necessities and operational requirements of war alongside humanitarian interests is to be determined. During arguments, the Chamber repeatedly resorted chiefly to law of war interpretations by the International Committee of the Red Cross and international tribunals for guidance to the seeming exclusion of military legal manuals and State practice. In arguments, the Court also troublingly considered whether resort to the Martens Clause’s invitation to consider broader notions of humanity might fill a “gap” in the definition of “attack”—a gap which in our opinion does not exist. Hopefully, in its subsequent deliberations, the Appeals Chamber will instead consider the invaluable operational perspectives of military practitioners, the end users of the law of war. That said, we are encouraged by the broad range of viewpoints of the amici curiae submissions and subsequent arguments.

In closing this post and this series, we acknowledge it is the Appeals Chamber’s immediate responsibility simply to resolve the issue raised in the case as it applies to the parties. However, prudence requires the Chamber to recognize the greater impact of its decision.

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COL Shane Reeves is Professor, Head of the Department of Law, Co-Director of the Lieber Institute for Law and Land Warfare at the United States Military Academy at West Point, and Co-Editor-in-Chief of Articles of War.

Prof Sean Watts is a Professor in the Department of Law, Co-Director of the the Lieber Institute for Law and Land Warfare at the United States Military Academy at West Point, and Co-Editor-in-Chief of Articles of War.