Difference between revisions of "Military objectives"

The formal scope of application of the Protocol is limited to [[International armed conflict|international armed conflicts (IACs)]].<ref>[https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=6C86520D7EFAD527C12563CD0051D63C Art 1 AP I.]</ref> However, an identical definition of military objectives is found in treaties applicable in [[Non-international armed conflict|non-international armed conflicts (NIACs)]].<ref>See, eg, [https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=C247A97A7ABA5900C12563FB00611D94 Amended Protocol II to the CCW, Article 2(6)]; [http://portal.unesco.org/en/ev.php-URL_ID=15207&URL_DO=DO_TOPIC&URL_SECTION=201.html Second Protocol to the Hague Convention for the Protection of Cultural Property, Article 1(f)].</ref> Moreover, certain non-party States to the Protocol accept the customary nature of the definition.<ref>See, eg, Brian Egan, Legal Adviser, Department of State, “[https://digital-commons.usnwc.edu/ils/vol92/iss1/7/ Remarks to the American Society of International Law: International Law, Legal Diplomacy, and the Counter-ISIL Campaign]” (1 April 2016), 242 (“In particular, I’d like to spend a few minutes walking through some of the targeting rules that the United States regards as customary international law applicable to all parties in a NIAC: … Insofar as objects are concerned, military objectives are those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”).</ref> Accordingly, the ICRC has characterized the definition of military objectives as a norm of customary international law applicable in both IACs and NIACs.<ref>[https://www.icrc.org/en/doc/assets/files/other/customary-international-humanitarian-law-i-icrc-eng.pdf ICRC CIHL Study], rule 8.</ref>
Relevant rules of IHL apply to kinetic operations as well as to cyber operations.<ref>[https://doi.org/10.1017/9781316822524 Tallinn Manual 2.0], rule 80 (“Cyber operations executed in the context of an armed conflict are subject to the law of armed conflict.”).</ref> However, the application of those rules in specific circumstances may pose novel challenges. This is because the rules governing targeting developed with physical operations in mind, and it is not always clear what their application to cyber operations entails.<ref>See William H Boothby, ''[http://opil.ouplaw.com/view/10.1093/law/9780199696611.001.0001/law-9780199696611 The Law of Targeting]'' (OUP 2012) 387–88.</ref> For example, there is some disagreement on what types of acts amount to “attacks”<ref>Cf Art 49(1) [https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?documentId=D9E6B6264D7723C3C12563CD002D6CE4&action=openDocument AP I] (defining “attacks” as “acts of violence against the adversary, whether in offence or in defence”).</ref> in the context of cyber operations, in particular when the operation in question is limited to the manipulation of data.<ref>See, eg, William H Boothby, ''[http://opil.ouplaw.com/view/10.1093/law/9780199696611.001.0001/law-9780199696611 The Law of Targeting]'' (OUP 2012) 384–87; Noam Lubell, ‘Lawful Targets in Cyber Operations: Does the Principle of Distinction Apply?’ (2013) 89 Int’l L Studies 252, 254–74; Marco Roscini, ''Cyber Operations and the Use of Force in International Law'' (OUP 2014) 180–81; Yoram Dinstein, ''The Conduct of Hostilities under the Law of International Armed Conflict'' (3rd edn, CUP 2016) 3.</ref> Nevertheless, even those operations that might not qualify as “attacks” under IHL may still only be directed against military objectives, as required by the principle of distinction.<ref>[https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=8A9E7E14C63C7F30C12563CD0051DC5C Art 48 AP I] (“the Parties to the conflict ... shall direct their operations only against military objectives”). It should be noted that it is not universally accepted that the reference to “operations” in Article 48 reflects customary international law. See, eg, Noam NeumannNeuman, ‘Challenges in the Interpretation and Application of the Principle of Distinction During Ground Operations in Urban Areas’ (2018) 51 VJTL 807, 821 fn 44.</ref>
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