Military Objectives by Location
Editors’ Note: This post is derived from a presentation given at the 2023 Israel Defense Forces Military Advocate General’s 4th International Conference on the Law of Armed Conflict.
The rules relating to the targeting of military objectives by location are found in the first Additional Protocol to the Geneva Conventions (AP I). The principal rule is set out in Article 52 AP I, labeled “General protection of civilian objects.” The overarching purpose of the provision is to create a legal framework that does exactly that: provide for the protection of civilian objects. Mindful of that purpose one must be very careful to construe or apply the rule in a manner that accords with the natural understanding of the wording in the paragraph.
This post examines the rule relating to military objectives by location, assessing when it applies, its status in customary international humanitarian law (IHL), the rule’s scope, and the conduct of attacks against this category of military objectives.
The Rule’s Application
AP I is limited in its application to international armed conflicts in the wider sense of the term as described in Article 1(4) of the protocol. It does not apply directly to States that have not ratified the protocol, nor to States that may have ratified AP I but that find themselves in an armed conflict that falls outside the scope of the protocol.
Article 52(2) applies only to “attacks,” defined in Article 49 paragraph 1 of AP I as “acts of violence against the enemy, whether in offence or defence.” This post does not explore the intended broad understanding of attack. In addition, there is a rule of presumption described in Article 52(3) pertaining to objects normally dedicated to civilian purposes. This presumption of civilian status applies to the classification of objects that by their use alone may constitute a military objective.
The AP I rule on military objectives must be read, understood, and applied cohesively with other criteria described in Article 52(2). The characteristic of an object that may lead it to be considered as military either by nature, location, purpose, or use is just one of several criteria that must be considered. For instance, if an object constitutes a military objective by location, it may only be engaged if it makes an effective contribution to military action and its destruction, capture, or neutralization offers a definite military advantage owing to the circumstances ruling at the time of the attack. Only if it meets the above-mentioned criteria may it be partially or totally destroyed, captured, or neutralized. “May” applies here first of all because there is always a choice and second, because legally the principle of proportionality must be considered if an attack targeting the military objective would lead to a disproportionate outcome pursuant to AP I Article 57(2)(a)(iii).
The Rule’s Status in Customary International Law
It is worth noting that the second Additional Protocol to the Geneva Conventions (AP II), applicable to non-international armed conflicts, does not include an equivalent provision to Article 52(2) AP I nor does Common Article 3 to the Geneva Conventions. However, similar wording is found in two other IHL treaty sources. These are Article 2(6) of the 1996 Amended Protocol II to the Convention on Certain Conventional Weapons (CCW), which defines military objectives, and Article 1(f) of the 1999 Second Protocol to the Hague Convention for the Protection of Cultural Property. Each contains exactly the same definition of a military objective. And both treaties apply in non-international armed conflicts governed by Article 3 common to the four Geneva Conventions.
This raises the question whether there is a norm of customary international law regarding military objectives by location and if so, what is the norm’s content. The International Committee of the Red Cross (ICRC) in its comprehensive study of customary IHL from 2004 found that indeed, Article 52(2) in its entirety is evidence of customary IHL in international armed conflicts and non-international armed conflicts alike. States may, of course, agree or disagree but in a Danish context we have not found any convincing arguments to differ from the ICRC’s conclusion.
The Scope of the Rule
The core of the other three possible characteristics of a military objective, namely its nature, its use, or its purpose, make immediate sense. Although they warrant careful analysis, they seem relatively easy to follow logically. It is more difficult, however, to envisage the core rationale behind the sub-criterion of “location.”
So why did the authors of the provision find it useful to add this sub-criterion and what indeed is its scope?
Although quite contrary to the natural understanding of the term “object” it is clear from the records of the diplomatic conferences that a military object by location can take the form of an area. Many States participating in the conferences made remarks on this point. But surely, this subtle point could not have been the only reason to add the sub-criterion “location” to the list of characteristics that could lead an object to gain military status?
Digging out the purpose of the criterion from the records of the diplomatic conferences leading up to the agreed text and paired with the ICRC Commentary on the Additional Protocols, very little light is shed on the matter. The ICRC Commentary includes a footnote comment that the Working Group of Committee Three of the diplomatic conferences gave no reasons for introducing the location criterion.
The ICRC Commentary does suggest, however, that the core intention of including the location criteria has to do with sites, which are of special importance to military operations in view of their location (para. 2021). This is either because it is a site that must be seized or because it is important to prevent the enemy from seizing it or otherwise because it is a matter of forcing the enemy to retreat from it.
In a note on Article 51(4)(a) the ICRC Commentary adds that if a belligerent wants to prevent an enemy army from establishing itself in a particular area or from passing through that area there can be little doubt in such a case that the area must be considered a military objective and treated as such. Hence, it could be subject to, for example, barrage fire to suppress enemy movements and deny access (para. 1955). The perceived need to “shape the battlespace” through barrage fire or “terrain denial” fires (discussed here on Articles of War) to force the enemy into certain corridors of advance or to close such corridors must always be taken into account when applying the principle of distinction. In fact, several States made statements and comments to this end at the diplomatic conferences.
The ICRC concludes its Commentary with a remark that the concept just described is only valid in the “combat area” (para. 1955). I concur with Ian Henderson in his publication “The Contemporary Law of Targeting” that imposing such a restriction to the criterion of location—while not imposing a similar restriction to nature, purpose or use—makes little sense.
Attacking a Military Objective by Location
A particular question that merits some attention in this context is how an attack against a military object by location may be conducted. This is particularly pertinent bearing in mind that attacking forces may want to reserve the possibility to maneuver through the object at a later stage in the conflict.
Article 52(2) allows the temporary neutralization of such a location, site, or space, therefore it may be feasible to consider the use of remotely delivered mines. This method of closing the space temporarily raises the question whether the delivery of mines constitutes an attack in the sense of the definition in Article 49 AP I. The wording offers no immediate answer but keeping in mind the purpose of this section of the Protocol—namely to provide general protection against the effects of hostilities—the term “attacks” must be understood in the wider sense of the word.
With respect to the laying of mines, the ICRC Commentary offers the viewpoint that “there is an attack whenever a person is directly endangered by a mine laid” (para 1881). The introduction of this sub-criterion of “directly endangering persons” seems unfit to determine whether a military objective by location has been subject to an attack. The closing of an adversary axis of advance by remotely delivering mines with the purpose of forcing the enemy into a specific axis of advancement must qualify as an attack given the intent and purpose of the action, regardless of any direct effect to individuals in or around the location. Of course, if remotely delivered mines are considered as the means of neutralization, reference must also be made to the CCW Protocol II for further regulation.
Application of rules applicable to attacks against objects by virtue of their location requires careful consideration of both humanitarian and military equities. It is clear that States have reserved wide authority to attack locations both to channel enemy forces into other engagement areas and to deny access to key terrain. Yet it is equally clear that attack rules have an unequivocal object and purpose to minimize effects on civilians and civilian objects. This post has offered a path to navigate these competing interests with respect to attacks on locations. States will, no doubt, continue to refine this important and delicate balance.
Jes Rynkeby Knudsen is Chief of the Law Department in the Danish Defence Command.
Photo credit: Staff Sgt. Jeff Clements