Post No.: 0700
Members of irregular armed forces (e.g. militias, paramilitaries, mercenaries) may lose their status as combatants in international armed conflicts (IACs), and therefore their right to protection as POWs, if they don’t respect certain conditions – most importantly that they distinguish themselves clearly from the civilian population. Under Geneva Convention III (GCIII), these conditions include wearing a fixed distinctive insignia. Under Additional Protocol I (API), however, this condition is softened to account for specific armed conflicts, thus groups like guerrilla movements no longer have to distinguish themselves from the civilian population at all times. Under API, and arguably customary international law, if members of armed forces fail to distinguish themselves from the civilian population then they’ll still be considered as members of those armed forces and thus remain as legitimate targets, even when they’re not participating in hostilities, for as long as they are members of those forces, yet they’ll lose their combatant status and so will not have a right to attack the enemy or be entitled to be treated as POWs if captured; albeit they should nevertheless be given protections equivalent in all respects to those accorded to POWs under GCIII.
Regarding the law of targeting, the International Committee of the Red Cross (ICRC) proposed that serving a continuous combat function counts as membership to an irregular armed force, which is in line with how membership to an armed group is often determined. But when in doubt in any case – one should one err on the side of caution and presume a person to be a civilian. (Some States, like France and the UK, have made reservations on that provision though; and some States not party to API, like the USA, have nuanced that presumption.) Seek a positive identification (PID) of a threat, and if in doubt – don’t strike.
There exist members of armed forces who fall under a special category and are protected against attacks. Medical and religious personnel attached to the military are protected against attacks, unless they commit acts harmful to the enemy outside of their humanitarian functions. So combat medics and military chaplains can carry weapons and defend themselves, but if they use their arms offensively, they’ll sacrifice their protected status. These people are generally defined as those who have been exclusively assigned to medical or religious functions, on a temporary or permanent basis. An example is the medical personnel of the Red Cross, Red Crescent or Red Crystal. They are required to wear a protective emblem to better identify their medical or religious role, but failing to do so won’t alone deprive them of their legal protection against being targets. A problem though is that, if members of organised non-state armed groups, and civilians who directly participate in combat, are expected to conform to customary legal norms – then most members won’t have learnt about International Humanitarian Law (IHL) in order to respect it. Ignorance of the law is no defence, yet this will matter little if they’re targeting protected persons.
As examined before in earlier posts in this thread – persons hors de combat (out of combat) are also protected, unless they engage in any hostile act or attempt to escape. For combatants who become hors de combat, such hostile acts include trying to destroy their own military equipment or anything else in their possession, or attempting to communicate with the party to which they belong (unless only to seek medical assistance). For civilians who take up arms (see Post No.: 0691) but then become hors de combat, they can only become lawful targets again if they directly participate in the hostilities again, and only for such a time of that participation. API provides specific protection for any person parachuting from an aircraft in distress too – so pilots who eject from their aircrafts due to emergency should not be shot at whilst descending; and once on the ground, should be given the opportunity to surrender before being made the object of attack, unless they engage in a hostile act. Airborne troops or troops parachuting down who are not in distress aren’t protected by this provision though.
…Onto material objects such as vehicles or buildings, as opposed to persons – ‘military objectives’ are objects that, by their nature, location, purpose or use, make an effective (rather than merely potential) contribution to the military capacity (either specific to an operation or in general) of the attacked party, plus whereby their total or partial destruction, capture or neutralisation, in the context of the situation, would confer a definite (rather than merely possible) military advantage for the attacking party.
These objects can make either a direct or indirect contribution to the military capability of the enemy. However, with the exception of certain States (e.g. the USA), there are increasing calls for indirect objects – such as economic installations (e.g. oil refineries, narcotics production facilities, banks) whose revenues are used to sustain the enemy’s war-fighting capabilities – to be excluded from the notion of military objective. Objects that only contribute to the political, economic or social structure of an attacked State should not be targeted – only military advantages are permissible as targets.
So the four criteria for determining whether an object makes an effective contribution to the military action of the enemy are either its nature, location, purpose or use. Military vehicles, weapons, military equipment, military fortifications, warships and other military assets are inherently legitimate targets. Bridges, mountain passes and observation points that serve a strategic advantage to the enemy due to their location and use, and any other site of military importance, are legitimate targets. Objects where belligerents have clear information that they’ll be actually (rather than presumably) intended to be used for military purposes in the near future can be lawful targets too. Deserted military barracks or military aircraft flying towards a neutral State to surrender aren’t lawful targets however because their destruction won’t normally offer any definite military advantage to the attacking party.
Normally-civilian objects – whether moveable or immovable (e.g. houses, schools, hospitals, heavy civil construction machinery) – can also be lawful targets if the enemy is presently appropriating them for military purposes. But, again, when in doubt, they should not be targeted. Buildings used as hospitals should ideally be marked by signs but this isn’t mandatory. Remember also that its total or partial destruction, capture or neutralisation must offer a definite military advantage for the attacking party in relation to the broader strategy behind the attack, and critically after weighing up the proportionality of any attack upon it.
So attacking buildings like hospitals won’t always violate the law of armed conflict. You can imagine that if they were always unlawful to attack then the enemy could just declare everything as a hospital and camp their commanders, troops and military assets there. This is the unfortunate reality of war.
Certain civilian objects require more conditions to be fulfilled before they can become regarded as military objectives though, or are prohibited from being targeted even if they become military objectives – these include cultural objects, objects that are indispensable for the survival of the civilian population, the natural environment, and works and installations whose destruction would unleash dangerous forces. Woof.
There are different levels of protection for cultural objects, but at a minimum, cultural objects (e.g. places of worship, ancient ruins, museums, large libraries – refuges are included in this category too), whether religious or secular in nature, can only be transformed into military objectives via their present use. Therefore their strategic location won’t count here, for example. There may also be an obligation to actively safeguard such properties in preparation for times of conflict. These rules as usual depend on the relevant treaties agreed upon by particular States, and the interpretation of customary law, however.
Food production and storage, sources of water and other objects indispensable for the survival of the civilian population also receive additional protection. Food and water sources that are solely for the sustenance of members of the adversary’s armed force or group can be attacked though. Sources that directly support the adversary’s military action can be attacked, removed or rendered useless unless doing so will leave the civilian population to starve or be forced to migrate. Starving the civilian population isn’t permitted as a method of warfare no matter the military advantage this could gain. This means that ‘scorched-earth policies’, where anything that might be useful to the enemy is destroyed so that they cannot capture it, will be unlawful if they’ll lead to the starvation of civilians (e.g. poisoning the water supply, burning crops). It’s currently uncertain whether these rules also apply to non-international armed conflicts (NIACs) on a customary law basis, but States can only employ ‘scorched-earth policies’ on their own territories and on the parts they control in any case.
It is prohibited to employ methods or means of warfare that are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment. The natural environment may be considered to be a civilian object. However, if the enemy conceals its military objectives inside a forest, for example, then parts of that forest can be lawfully targeted provided that the test for proportionality is met. But no military advantage, as great as it may be, can ever justify widespread, lasting and severe damage to that forest, whether that damage is incidental or not. The absolute nature of this prohibition is why a small number of States (e.g. the USA again) have opposed it – particularly when it concerns the option of employing nuclear weapons.
Works and installations whose destruction would unleash dangerous forces are nuclear power stations, dykes or dams (hence the famous WWII British ‘Dambusters’ raids (Operation Chastise) would’ve been legally questionable if performed today). These, as well as any objects located in the vicinity of those works and installations (e.g. a hydroelectric power station incorporated into a dam), should never be attacked even if they are military objectives (apart from in a few exceptional cases), because of the risk of severe losses amongst the civilian population. This specific additional protection only currently applies to nuclear power stations, dykes or dams hence doesn’t apply to installations such as oil refineries or chemical plants.
Woof. Sometimes it feels like war is about two or more armies fighting each other with the civilians of all sides who don’t really want to fight saying, “Okay you can fight if we can’t stop you but please leave us and our stuff out of it!” You wish it could be like boxers with beef who can go inside a ring and keep the fight confined there if they cannot find an alternative to fighting at all. That’s the idealism. For the reality – that’s why there’s IHL; imperfect as it might be.