Description of the experiment

The law of targeting lies at the heart of International Humanitarian Law (IHL), as such, it is the fulcrum around which discussion of combat operations revolve. This was the case during the recent war in Irag²⁹ and remains so with respect to the conflicts in Afghanistan³⁰ and Syria³¹. The precise applicability of the law of targeting has sparked a flury of recent reports about drone operations by UN Special Rapporteurs and

29 See Human Right Watch on Target; The Conduct of the War and Civilian Causalities in Iraq (2003) http://www.hrw.org/sites/default/files/reports/usa1203-sumires.pdf (hereinafter HRW Irag Report, Michael N.Schmit, “The conduct of Hostilities during operation Irag Freedom: An International Humanitarian Law Assessment”, 6 Y.B. International Humanitarian Law 73-109 (2003)

30 . See Human Right Watch, Fatally Flame Cluster Bombs and their use by the United States in Afghanistan (2002) http://www.hrw.org/reports/2002/us-aghistan/: Michael N. Schnit, Targeting and International Humanitarian Law in Afghanistan, 85 Int‟l Studies 307 (2009).

31 . See Human Rights Council, Rep. of the Independent Int‟l Committee of Inquiry on the Syria Arab Republic, UN. Doc. A/HRC/25/65 (February 12, 2014)

21

governmental Organizations³² and underpins the highly contentions debate over the legality of autonomous weapons systems.

Targeting simplicita is the process of selecting and prioritizing targets and matching the appropriate response to them, considering operational requirement. The law of targeting is from a theoretical and undeconstructed perspective, fairly straightword.³³ Consistent with the principle of distinction, attacks may only be conducted against military objectives, including members of the armed forces and other organized armed groups participating in the conflict³⁴. Objects which by “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 qualify as military objectives³⁵. By the “Use” criterion, civilian objects may become military objectives when the enemy employs them for military ends.

Analogously, civilians may be targeted should they “directly participate in hostilities”.

Attacks must not be indiscriminate; that is, they must be directed against a specific military objective and may not treat “as a single military objective, a number of clearly separated and distinct military objectives located in a city town, village or other area containing a similar concentration of civilians or civilian objects.

32 . Special Reporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Third Annual Rep. Pursuant to G.A. Res: 66/171 and Human Rights Council Res. 15/15, 19/19 and 22/8,24,55-56, 61-62, 65 (2013) (by Ben Emmerson), transmitted by Note of the Secretary General, U.N. Doc. A/68/389 (Sept. 18, 2013, (hereinafter Emmerson, 2013)

33 . Michael N. Schmit, “Wired Warfare: Computer Network attack and Jus in bello” (2002) 84 International Review of the Red Cross 365 at 377.

34 . Francoise Hampson “Means and methods of Warfare in the Conflict of Gulf” in Peter Rowe (ed), The Gulf War 1990-91 International and English Law, (London Sweet & Marxwell, 1993) at 94.

35 . T Montgomery, “Legal Perspective from the EUCOM Targeting Cell” in Andra E. Wall, (ed), Legal and Ethical lesson of NATO‟ Kosovo Campagin, Volume 78, US Naval War College‟s International Law Studies, 189 at 490.

22

When engaging a lawful target, the attacks may be barred from employing certain weapons. Such restrictions derive either from the customary law forbidding the employment of indiscriminate weapons and those which cause unnecessary suffering or superfluous injury³⁶, or from specific treaty restrictions, such as the Dublin Treaty on Cluster munitions, for states party”.

Even assuming a lawful target and permitted weapon, an attacker must take

“feasible precautions” to minimize collateral damage. Specifically, „the commander must decide in light of all the facts known or reasonably available to him, including the need to conserve resources and complete the mission successfully, whether to adopt an alternative method of attack, if reasonably available to reduce civilian causalities and damage”.³⁷ Considerations include weapon and tactic options, as well as alternative targets that can be attacked to retain a “similar military advantage.

Finally, attacks that violate the principle of proportionality are unlawful. An attack will breach the standard if it is “expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated”.³⁸ The rule of proportionality is often misconstrued as either prohibiting “extensive” collateral damage or as a test which balances collateral damage against military advantage. In fact, it bars attack only when no proportionality at all exists between the ends sought and the expected harm to civilians and civilian objects. Restated, the linchpin term, “excessive”

36 . W J Fenrick, “Targeting and Proportionality During NATO Bombing Campaign Against Yugoslavia (2001) 12 E J L L. 489 at 497.

37 . Human Right Watch, Civilian Deaths in the NATO Campaign (2000) at 15.

38 . J E Baker, “When Lawyers Advice Presdent in Wartime, Kosovo and the Law of Armed Conflict”

(2002), 55 Naval War College Review 11 at 12, admist that an effects based concept of military objectives “sends the law hurting down the slippery slope toward collateral calamity”.

23

indicates unreasonable collateral damage in light of the reasonably anticipated military advantage expected to result from the attack.³⁹