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Targeting Review Outline

International Law & Conflict
Targeting Review Outline
A basic guide to answering a problem question regarding ‘targeting’ – BONUS POINTS: is
targeting really any different than any acts of warfare? Not really – but the mere fact that
targeting is more of a counter-insurgency, wherein you know the person’s social insurance
number/ how many kids he have/his job etc – as opposed to just them being ‘oh, they are
wearing a swastika on themselves – we can kill them”. Legally, no real difference in terms of
the law, but it differs in this regard.
Part I: Is there an armed conflict? YES or NO?
You can go into a bit of a history lesson of what armed conflict is: Discussing how the Modern
Low of Armed Conflict emerged from Henry Dunant (Swiss Guy) who saw the atrocities
happening in the battle of Solferino in 1859 which lead to the Geneva Convention of 1864,
followed by The Hague Process and then later the emergence of Additional Protocols I and II
(1977) which updated the Geneva Convention of 1949 and added more additional limits to it.
Briefly mention that there are four principles to the law of armed conflict:
 (i) Military Necessity
o Article 23(g) Hague Regulation VI (1907) forbids “to destroy or seize the enemy’s
property, unless such destruction or seizure be imperatively demanded by the
necessities of war’.
 (ii) Humanity
o forbids infliction of suffering, injury or destruction not necessary for
accomplishment of legitimate military purposes.
 Martens Clause – Article 1(2) AP I: stating that in cases where you are not
covered by the AP or international agreements, civilians + combatants
remain under the protection by customs and public conscience.
 (iii) Principle of Distinction
o tells us what is lawful/legitimate target of attack, and what isn’t.
 (iv) Principle of Proportionality
Differentiate in the Problem Question the competing ‘armed conflicts’ that are going on. Note:
there could be instances where you have both an IAC and a NIAC interplaying at the same time.
And with the two parallels, you can bring in the case of Nicaragua. In the sense that 1st – the US
were using force (against Nicaragua) State on State. 2nd – there were traces of NIAC because
the contras were fighting the central governments at same time.
International Armed Conflict?
o Common Article 2 Geneva Conventions
2(1): In addition to the provisions which shall be implemented in peacetime, the
present Convention shall apply to all cases of declared war or of any other armed
conflict which may arise between two or more of the High Contracting Parties, even if
the state of war is not recognized by one of them.
International Law & Conflict
Targeting Review Outline
2(2): The Convention shall also apply to all cases of partial or total occupation of the
territory of a High Contracting Party, even if the said occupation meets with no armed
o If it is an IAC, you then need to determine how that armed conflict is
distinguished. Is it:
 (1) Declared?
 (2) Armed Conflict? (Most likely it’ll be this one)
 CASE: Tadich
o It gives the definition of what an armed conflict is,
basically saying that when there is a result to armed force
between states, what we are looking at is the violence.
o Looking for violence and differentiate between a low
threshold (which is the one that the International
Committee of the Red Cross (ICRC) takes or a higher one
(which is supported in State practice, although many
incidents are not treated as conflicts.
applies to NIAC but then it gets confusing because when
you talk about the intensity aspects, those are customary
rules which seep over and whatnot. But for the most Part
– it is NIAC.
 The International Law Association (non-profit organization) did a
Report on the meaning of Armed Conflict:
o Unified Concept of armed conflict
o Certain level of organization AND intensity.
 (3) Occupation (of territory)
 Article 42 Hague Regulations 1907: “occupation, even though
there was no resisting” Such as: presence of foreign forces, local
government incapable of exerting powers etc.
 Example: Russia & Crimea
 (4) Or is it a new IAC under Article 1(4) API – where people are fighting
against a colonial domination etc against racist regimes in the exercise of
Non-International Armed Conflict?
o Common Article 3 of the Geneva Conventions (1949) – sets out the minimum
guarantees to be respected during NIACs.
o Bring up CASE Tadich again, and say how there needs to be a level of
organization & intensity.
o Case: Prosecutor v Boskovi
 Paragraph 176: The Trial Chamber in Tadic noted that factors relevant to this
determination are addressed in the Commentary to Common Article 3 of the
Geneva Conventions. These ‘convenient criteira’ were identified by the drafters
of Common Article 3 during negotiations of the Geenva Conventions in order to
distinguish an armed conflict from lesser forms of violence, although these were
International Law & Conflict
Targeting Review Outline
rejected from the final text. While these criteria give some useful indiciations of
armed conflict, they remain examples only. The drafters of the Commentary
were of the view that Common Article 3 should be applied as widely as possible
and could still be applicable in cases where ‘armed strife breaks out in a
country, but does not fulfil any of the above conditions’.
 The Trial Chamber in Limaj after having reviewed the drafting history of
Common Article 3, concluded that ‘no such explicit requirements for the
application of Common Article 3 were intended by the drafters of the
Geneva Conventions”. Consistent with this approach, Trial Chambers
have assessed the existence of armed conflict by reference to objective
indicative factors of intensity of the fighting and the organisation of the
armed group or groups involved depending on the facts of each case.
o To determine whether or not there is a NIAC, apply the principles of Boskoski:
Five groups of facts:
-seriousness of attacks (ie. who is affected
 (i) common structure
-spread of clashes over territory and time
 (ii) conduct operations in organised
-distribution of weapons type of weapons,
 (iii) level of logistics
number of displaced civilians, extent of
 (iv) discipline
destruction/casualties, existence of front
 (v) speak with one voice
Note: if you have these, then you probably have a non-state actor – can be a combination of
them, doesn’t necessarily have to have all of them – hence why there is some confusion and
debate amongst it.
Bring in Additional Protocol II – imposes a much higher threshold, which develops obligations
imposed by the Geneva Convention in Common Article 3 much higher. Say that this threshold
does not reflect custom.
**NOTE: Additional Protocol II does not apply unless the Non-State actors are in control of the
territory. It applies only to relations between state military forces and rebels, but does not
cover fighting which occurs between rebel groups.
Part II: Targeted Objects
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _
Once you determine the differentiating law of armed conflict, then have a small statement of:
 Jus ad Bellum: the rules simply telling you when you can use the force. But not
when/how you can do it.
 Just in bello: the rules that govern the conduct of warfare once hostilities have broken
out; their main aim is to limit the effects of warfare by imposing certain rules on the
belligerent parties. Essentially – the Conduct of Warfare.
International Law & Conflict
Targeting Review Outline
This may not be needed actually – Prof said that it would be very easy to confuse. In the
seminar it says ‘differentiate between use ‘ad-bellum’ and see whether or not it crossed the
threshold of the use of force – Geneva Convention #4.
_ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Bring in the Concept of the Principle of Distinction: It is a fundamental principle of LOAC that
any belligerent, whether in an IAC or a NIAC, must distinguish between military objectives on
the one hand and civilian persons and objects on the other and direct its operations only
against the former (principle of distinction).
Article 48 AP I: “… the parties to the conflict shall at all times distinguish between the civilian
population and combatants and between civilian objects and military objectives and
accordingly shall direct their operations only against military objectives”  requires belligerents
to ‘direct their operations only against military objectives’.
And in determining whether it is in line with the list of military objectives – Recall Article 52(2)
AP I: wherein when looking at objects you are determining its effective contribution and its
definite military advantage.
 The objects, who does it belong to? The State or Non-State?
o Make a note whether or not it falls in the context of an IAC or NIAC.
 Note: Most potentially, if those forces are part of the state, it does not
fall in the context of a NIAC.
Part III: Actual Destruction of the Objects
Take each object and start to deconstruct
o Example: Pick-Up Truck
 Is there hostile intent (part of the rules of engagement terminology)
 As in – does it have machine guns on top of them etc?
o Start to deconstruct the example in terms of:
 Article 52(1) AP I
 (i) Effective contribution
o (a) Nature – look at things that its inherent qualities which
make an effective contribution to enemy action (ie.
o (b) Location – (ie) that tree is blocking the target.
o (c) Purpose – for intended future use.
 As in, does it carry the special forces people from one place to
another etc.
 (ii) definite military advantage
International Law & Conflict
Targeting Review Outline
o Does the destruction of ‘said object’ give ‘us’ an
 Example: We are destroying the capability of the
enemy to ‘move around’. Big guns on the trucks, if
you take that away, they can’t shoot us.
Go over these criteria for each military objects.
Note: There is this Proportionality Rule – what is the harm to civilian damage v. the concrete
direct military advantage. Unlike it Article 52 – we require a concrete and direct standard.
 Concrete being = not speculative, we have a clear idea
 Direct = it cannot be indirect.
What is really important to underline, is that proportionality allows a calculative
Part IV: People: Still going off of the Principle of Distinction
Next, if there is people involved, you need to differentiate between civilians and noncivilians.
Make note, that this is just a Guidance
From the Interpretive Guidance on the Notion of: Direct Participation in Hostilities under
International Humanitarian Law – Nils Melzer, Legal Adviser, ICRC
 “The Concept of Civilian In IAC: For the purposes of the principle of distinction in IAC, all persons
who are neither members of the armed forces of a party to the conflict nor participants in a
levee en masse are civilians and, therefore, entitled to protection against direct attack unless
and for such time as they take a direct part in hostilities.
Under Rules of International Armed Conflict (IAC)
 Civilians:
o Civilian Definition in Article 50 Additional Protocol I (contains negative definition)
 Civilians enjoy immunity (primary status) unless and for such time as they
are direct participants in hostilities (secondary status).
o Article 51 AP I (defines immunity)
 How all civilians enjoy a general protection against dangers arising from
military operations.
 Article 51(3) AP I: enjoy immunity unless they take a direct part in
 Combatants:
o Combatants do not enjoy immunity (primary status) unless they are hors de
combat or otherwise protected (secondary status). A combatant is a person who
is a member of the armed forces.
International Law & Conflict
Targeting Review Outline
Article 4(A) of the Geneva Convention III: 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.
Bit Obvious to Write this but you must: (for example):
Combatants do not enjoy immunity from attack. They are not exempt from the attack from
the use of legal force. And that is the reason we can go ahead and use military force against
these people.
Under a Non-International Armed Conflict:
From the Interpretive Guidance on the Notion of: Direct Participation in Hostilities under
International Humanitarian Law – Nils Melzer, Legal Adviser, ICRC
 Treaty IHL governing NIAC uses the terms ‘civilians’, ‘armed forces’, and ‘organized
armed group’ without expressly defining them. These concepts must therefore be
interpreted in good faith in accordance with the ordinary meaning to be given to them
in their context and in the light of the object and purpose of IHL’.
The Concept of Civilian in NIAC:
“For the purpose of the principle of distinction in a NIAC conflict, all persons who are not
members of State armed forces or organized armed groups of a party to the conflict are civilians
and, therefore, entitled to protection against direct attack unless and for such time as they take
a direct part in hostilities. In non-international armed conflict, organized armed groups
constitute the armed forces of a non-State party to the conflict and consist only of individuals
whose continuous function it is to take a direct part in hostilities (continuous combat function).
Basic Components of the Notion of Direct Participation in Hostilities (DPH)
 The notion of direct participation in hostilities essentially comprises two elements,
namely “hostilities’ and that of ‘direct participation’.
o While the concept of ‘hostilities’ refers to the (collective) resort by the parties to
the conflict to means and methods of injury the enemy, ‘participation’ in
hostilities refers to the (individual) involvement of a person in these hostilities.
 Persons participate directly in hostilities when they carry out acts, which aim to support
one party to the conflict by directly causing harm to another party, either directly
inflicting death, injury or destruction, or by directly harming the enemy’s military
operations or capacity. If, and for as long as civilians carry out such acts, they are
directly participating in hostilities and they lose their protection against an attack.
 Indirect Participation in hostilities = are those which contribute to the general war effort
of a party, but does not directly cause harm and, therefore, does not lead to a loss of
protection against direct attack.
Next Discuss: Reasonable Certainty
 **Everyone is presumed a civilian, unless they are not**
o The burden is on us to prove and remove the doubt that these are not civilians.
International Law & Conflict
Targeting Review Outline
Article 57 AP I: these are the precautions to take and are all the reasonable measures,
to verify when undertaking an attack.
o 57 AP (2)(a)(i): make sure that you verify that the objects attacked are neither
civilians nor civilian objects
o 57 AP (2)(a)(ii): Have to minimize civilian life/injury to civilian and damages to
civilian objects etc.
Part V: People/Weapons they Use
Next, determine if whether them carrying weapons/ or actually using them
differentiates them.
o Example: The People are Special Forces – we have determined this in the above.
Next, there are other people who are ‘just carrying weapons’. What does this
 IF they are carrying weapons, but we do not actually know whether they are ‘special
forces’ and whatnot, then we need to determine: Direct Participants in Hostilities.
o Determine whether or not that civilian falls within the IAC or NIAC category.
 Article 51(3) AP I – Discusses when civilians loses immunity – in that they take direct
part in hostilities.
o **Civilians enjoy immunity from attack, with one exception: civilians who
participate directly in hostilities lose their immunity during the period of that
direct participation and also during any period in which they perform acts
preparatory to the attack they intend to launch**
So We have the Guidance of the International Committee of the Red Cross – which we have
noted that this is just a guidance aspect.
But we also have the Law of War Manual – from the Department of the Defence of the US.
Page 222: Civilians who take a direct part in hostilities forfeit protection from being made the
object of an attack.
 This manual uses the phrase ‘direct part in hostilities’ to indicate what activities cause a
civilian to forfeit his or her protection from being made the object of attack. This usage
does not mean that the United States has adopted the direct participation in hostilities
rule that is expressed in Article 51 of AP I.
o *Although, as drafted, Article 51(3) of AP I does not reflect customary
international law, the United States supports the customary principle on which
Article 51(3) is based.
 **Takes a different approach to what DPH is from the Guidance Notes by
the ICRC, and in particular to what memberships of the organized armed
group actually is**
Next, talk about this:
Belligerent Nexus – the nexus is about asking, why are they causing that harm, and in what
context are they causing it?
International Law & Conflict
Targeting Review Outline
**Them carrying a rifle (for example) does not mean anything, because it could be in
Iraq, and people have just left all these rifles there. So the context is important. If you
see people in Luxemburg carrying riles, then that would be a bit confusing.
From the Guidance Notes:
o Not every act that directly adversely affects the military operations or military
capacity of a party to an armed conflict or directly inflicts death, injury or
destruction on persons and objects protected against direct attack necessarily
amounts to direct participation in hostilities.
o So in other words, in order to amount to direct participation in hostilities, an act
must not only be objectively likely to inflict harm that meets the first two criteria,
but it must also be specifically designed to do so in support of a party to an
armed conflict and to the detriment of another (Belligerent nexus).
Part VI: Proportionality
Next before you implement the targeted killing & attack, discuss proportionality.
Proportionality requires you to calculate the expected civilian harm.
o Again, you can mention Article 57 AP I – which addresses all the necessary steps
to ensure the following precautions that are taken.
Part VII: Conclusion
 Once you have gone through all of this list, talking about: whether there is an armed
conflict in the first place, then going over the rules of military objectives – and if those
military objectives become even more increasingly difficult with the added element of
civilians in them (whether they are combatants or non) – and then you assess the
proportionality of whether the military objective would be greater to actually go ahead
and ‘kill’ them/target it.
 Then you will say either yes, or no. Or do a balance of a percentage and give you
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