The Law of Targeting 1st Edition by William Boothby 0191639931 9780191639937

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ISBN 10: 0191639931

ISBN 13: 9780191639937

Author: William H. Boothby

Targeting is the primary method for securing strategic objectives in an armed conflict. Failure to comply with the law of targeting jeopardizes the achievement of those aims. It is therefore essential that all those involved in or studying issues surrounding targeting have an accurate and complete understanding of this area of law. This book offers the definitive and comprehensive statement of all aspects of the law of targeting. It is a ‘one-stop shop’ that answers all relevant questions in depth. It has been written in an open, accessible yet comprehensive style, and addresses both matters of established law and issues of topical controversy. The text explains the meanings of such terms as ‘civilian’, ‘combatant’, and ‘military objective’. Chapters are devoted to the core targeting principles of distinction, discrimination, and proportionality, as well as to the relationship between targeting and the protection of the environment and of objects and persons entitled to special protection. New technologies are also covered, with chapters looking at attacks using unmanned platforms and a discussion of the issues arising from cyber warfare. The book also examines recent controversies and perceived ambiguities in the rules governing targeting, including the use of human shields, the level of care required in a bombing campaign, and the difficulties involved in determining whether someone is directly participating in hostilities. This book will be invaluable to all working in this contentious area of law.

The Law of Targeting 1st Table of contents:

Part I: The Law of Targeting in Context

1 Introduction

1.1 Introduction

1.2 What is targeting?

1.3 Why is targeting important?

1.4 Putting the law of targeting into context

1.5 Outline of the text

1.6 The background to the book

1.7 The purpose of the book

2 Historical Evolution of the Law

2.1 Lieber Code

2.2 St Petersburg Declaration 1868

2.3 Brussels Declaration 1874

2.4 Oxford Manual 1880

2.5 Hague Convention II, 1899

2.6 Hague Peace Conference 1907

2.7 Hague Convention IX, 1907

2.8 Air warfare

2.9 Geneva Conventions 1949

2.10 Hague Cultural Property Convention 1954

2.11 Environmental Modification Convention 1976 (ENMOD)

2.12 Additional Protocols I and II 1977

2.13 San Remo and Air and Missile Warfare Manuals

2.14 International criminal jurisdiction over war crimes

2.15 ICRC Customary Law Study

2.16 Conclusion

3 Sources of the Law

3.1 Introduction

3.2 The sources of targeting law

3.3 Customary law

3.4 Treaties

3.5 Treaty formalities

3.6 Statements of interpretation and reservations

3.7 Interpretation of treaties

3.8 Treaty rules and custom

3.9 ICRC Customary Law Study

3.10 Commentaries on the Additional Protocols

3.11 UN Secretary General’s Bulletin

3.12 Conclusion

4 Spectrum of Conflict

4.1 Introduction

4.2 International armed conflict

4.3 Meaning of armed conflict

4.4 Conflicts under article 1(4) of API

4.5 Non-international armed conflicts to which Additional Protocol II (APII) applies

4.6 Non-international armed conflicts under Common Article 3

4.7 Occupation

4.8 Conflicts other than armed conflicts

4.9 Human rights law and domestic law

4.10 Peacekeeping, peace enforcement, and the spectrum of conflict

4.11 Conclusion

Part II: General Principles of the Law of Targeting

5 Customary Rules of Targeting

5.1 Introduction

5.2 Fundamental customary principles of targeting law

5.2.1 Methods and means of warfare not unlimited

5.2.2 Military necessity

5.2.3 Humanity

5.2.4 Chivalry

5.2.5 Distinction

5.2.6 Threats of violence

5.3 The rule of discrimination at customary law

5.4 Combatants

5.5 The meaning of ’the armed forces’

5.6 The meaning of ’civilians’

5.7 The protection of civilians

5.8 Civilian objects

5.9 Doubt as to character of an object

5.10 Customary rule of proportionality

5.11 Precautions in attack

5.12 Precautions against the effects of attacks

5.13 Conclusion

6 The API Rule of Distinction

6.1 Introduction

6.2 Nuclear weapons

6.3 Basic rule

6.4 The meaning ofattacks and scope ofapplication

6.5 The meaning ofcivilians, armed forces, and combatants

6.6 Interaction between articles 51, 43, and 44

6.7 Prohibiting attacks on civilians

6.8 Determining civilian status

6.9 Indiscriminate attacks

6.10 Article 51(5)(a)

6.11 Article 51(5)(b)—the rule of proportionality

6.12 Other aspects of article 51

6.12.1 Article 51(6)

6.12.2 Article 51(7)

6.12.3 Article 51(8)

6.13 Military objectives and the protection of civilian objects

6.14 In case of doubt

6.15 Particular rules of protection

6.15.1 Cultural objects and the natural environment

6.15.2 Objects indispensable to the survival of the civilian population

6.16 Articles 57 and 58—precautions

6.17 Article 59—non-defended localities

6.18 Article 60—demilitarized zones

6.19 Protective zones at customary law

7 Precautions

7.1 Introduction

7.2 The general rule

7.3 The listed precautions in article 57(2)

7.4 Precautions against the effects of attacks—the obligations of defenders

7.4.1 Precaution (a)

7.4.2 Precaution (b)

7.4.3 Precaution (c)

7.5 The reciprocal nature of precautions obligations

7.6 Involuntary human shields

7.7 Voluntary human shields

7.8 Conclusion

8 Targeting Persons and the Controversy as to Direct Participation in Hostilities

8.1 Introduction

8.2 Members of the armed forces as combatants

8.3 Distinguishing persons entitled to be respected from ’combatants’

8.4 ’Active’ and ’direct’ participation in hostilities

8.5 Background of the ’direct participation’ controversy

8.6 The Interpretive Guidance—an introduction

8.7 The Interpretive Guidance—general comments

8.8 Presumption against direct participation

8.9 ICRC Guidance—the notions of armed forces and organized armed groups

8.10 The specific act approach

8.11 Threshold of harm

8.12 The requirement for direct causation

8.13 Belligerent nexus

8.14 More general observations

8.15 Beginning and end of DPH

8.16 Temporal scope of the loss of protection

8.17 Disengagement from DPH and the consequences

8.18 A proposed view of DPH

8.19 Conclusion

9 The Controversy over Bombardment—What is the Required Degree of Care?

9.1 Introduction

9.2 Hague Regulations 1907

9.3 Draft Hague Air Rules

9.4 Protocols Additional to the Geneva Conventions

9.5 The realities of military operations

9.6 The required degree of care

9.7 Cancelling or suspending attacks

9.8 Negligence, due care, and errors of judgement

9.9 The operational context in which care is taken

9.10 Obligations of the defender

9.11 International criminal law

9.11.1 International Criminal Tribunal for the Former Yugoslavia

9.11.2 Application of the targeting rules in Kosovo

9.12 Rome Statute of the International Criminal Court

9.13 An evaluation of these war crimes

9.14 Conclusions

Part III: Particular Protections

10 The Protection of the Environment

10.1 Introduction

10.2 Early texts

10.3 Hague Peace Conferences 1899 and 1907

10.4 Geneva Gas Protocol 1925

10.5 ENMOD

10.6 Articles 35 and 55 of API

10.6.1 Convention on Certain Conventional Weapons (CCW) and the environment

10.7 The environment, targeting, and the Gulf War 1990 to 1991

10.8 Nuclear weapons

10.9 Reprisals against the environment

10.10 ICRC Guidelines for military manuals

10.11 ICRC Customary Law Study

10.12 Application of peacetime environmental law in armed conflict

11 Cultural Property

11.1 Introduction

11.2 Writings of nineteenth-century jurists

11.2.1 Lieber Code

11.2.2 Brussels Declaration 1874 and Oxford Manual 1880

11.3 Hague Peace Conferences 1899 and 1907

11.4 Hague Draft Rules 1923

11.5 Hague Convention 1954

11.5.1 Introduction

11.5.2 General protection of cultural property under the 1954 Convention

11.5.3 Special protection under the 1954 Convention

11.5.4 1999 Protocol to the 1954 Convention—general protection

11.5.5 Enhanced protection under the 1999 Protocol

11.5.6 The significance of enhanced protection

11.5.7 Loss of enhanced protection

11.6 Additional Protocol 1 and cultural property

11.7 War crimes in relation to cultural property

11.8 Military Manuals and cultural property

11.9 Participation in the treaties

11.10 Customary law protection of cultural property

11.11 Implications for the targeteer

12 Objects Entitled to Special Protection

12.1 Introduction

12.2 Civilian medical units

12.3 Hospital ships, sick-bays, other medical ships and craft

12.4 Medical units and establishments

12.5 Medical transports

12.5.1 Medical aircraft

12.6 Civil airliners—the AMW provisions

12.6.1 Civilian airliners—the San Remo Manual provisions

12.7 Cultural objects

12.8 Aircraft granted safe conduct

12.9 Works and installations containing dangerous forces

12.10 The natural environment

12.11 Civil defence

12.12 Other persons or items for which special protection appears to be claimed

12.13 Conclusion

Part IV: Weapons and Technologies

13 Weapons

13.1 Introduction

13.2 Historical evolution of the law of weaponry

13.3 Superfluous injury and unnecessary suffering

13.4 Indiscriminate weapons

13.5 Geneva Gas Protocol 1925

13.6 Weapons and the environment

13.7 Conventional Weapons Convention 1980

13.7.1 Weapons prohibited under CCW

13.8 Customary status of CCW Protocol rules

13.9 Ottawa Convention 1997

13.10 Chemical weapons

13.11 Bacteriological or biological weapons

13.12 Cluster munitions

13.13 Application of weapons law in non-international armed conflict

13.14 Treaty law restrictions on the use of certain weapons

13.15 Non-lethal weapons

13.16 Conclusion

14 Intelligence Gathering and Targeting Using Particular Technologies

14.1 Introduction

14.2 Intelligence gathering

14.3 Intelligence gathering, reconnaissance, and communications using UAVs

14.4 The marking of UAVs

14.5 Firing weapons from UAVs

14.6 UAVs firing weapons autonomously

14.7 Civilian involvement in UAV operations

14.8 Directed energy attacks

14.9 Nuclear attack

14.9.1 The International Court of Justice Advisory Opinion

14.9.2 The UK position

14.9.3 Nuclear disarmament

14.10 Nanotechnology and the challenges posed by advances in technology

Part V: Specific Domains

15 Maritime Targeting

15.1 Introduction

15.2 Early treaty law regulating maritime targeting

15.3 The obligations of neutral powers in naval warfare

15.4 Submarine warfare—the early law

15.5 Littoral targeting and API

15.6 Submarine warfare, the modern law

15.7 Other conventional law applying to naval warfare

15.8 The right to participate in hostilities at sea

15.9 San Remo Manual 1994—the basic rules

15.10 San Remo Manual—exemption from attack

15.11 Vessels exempt from attack

15.12 Aircraft exempt from attack

15.13 Other enemy vessels and aircraft

15.14 San Remo Manual—attacking neutral vessels and aircraft

15.15 San Remo Manual—precautions in attack

15.16 Weapons in naval warfare

15.16.1 Missiles and other projectiles

15.16.2 Torpedoes

15.16.3 Mines

15.17 Ruses and perfidy in naval warfare

16 Air and Missile Targeting

16.1 A brief historical background

16.1.1 Application of API to the air domain

16.2 Some introductory remarks

16.3 What is airspace and how does sovereignty apply within it?

16.3.1 Divisions of airspace and freedom of navigation

16.3.2 Zones of airspace and their significance

16.3.3 Exclusion zones, war zones, and no-fly zones

16.4 Aircraft, UAVs, missiles, and military aircraft

16.5 Civil and State aircraft under the Chicago Convention

16.6 Movement of military aircraft through airspace

16.7 Status of crews of military aircraft

16.8 Persons parachuting from aircraft in distress

16.9 Weapons, methods, and means of aerial warfare

16.9.1 Air-to-surface weapons

16.9.2 Air-to-air and ground-to-air weapons

16.10 Ground attack

16.11 Surrender of, and to, aircraft

16.12 Interception, inspection, and diversion of neutral civil aircraft

16.13 Capture of neutral civil aircraft and goods

16.14 Capture of enemy civil aircraft and goods

16.15 Protected, and specially protected, aircraft

16.16 Application of the fundamental targeting principles to duties of those on the ground

16.17 What is direct participation in air hostilities?

16.18 The legal use of less sophisticated technologies

16.19 Conclusion

17 Targeting and Outer Space

17.1 Introduction

17.2 Application of targeting law to outer space

17.3 Meaning of outer space

17.4 The treaty regime in outer space

17.5 Application of law of armed conflict rules to space

17.6 Anti-satellite attack methods

17.7 The space debris problem

17.8 Weapons law in space

17.9 Summary

17.10 Civilian involvement in space operations

17.11 Conclusion

18 Cyber Targeting

18.1 Some preliminary definitions

18.2 Applicability of the law of armed conflict to cyber hostilities

18.3 Cyber attacks

18.4 Application ofAPI to cyber attacks

18.5 Applying the rules to cyber operations

18.5.1 Is the proposed target system a military objective?

18.5.2 Discrimination, proportionality, and target selection

18.5.3 DDOS attack using botnet

18.5.4 Intelligence gathering via a targeted Trojan—planting a kill-switch in the process

18.5.5 ’Man-in-the-middle’ attack

18.5.6 Denial ofservice attack via system logic

18.5.7 Compromised supply chain

18.5.8 Masquerade

18.5.9 Cyber attacks on objects entitled to special protection

18.5.10 Perfidy and espionage

18.6 Who has the right to participate in cyber hostilities?

Part VI: Practical Aspects of Contemporary Targeting

19 The Prosecution of Difficult Targets

19.1 Introduction

19.2 Fighting in built-up areas (FIBUA)

19.3 Objectives containing dangerous substances

19.4 Shielding of military objectives

19.5 Airliners in flight

19.6 Civilians taking a direct part in hostilities

19.7 Conclusion

20 Non-International Armed Conflict

20.1 Introduction

20.2 Common Article 3

20.3 Combatant status and the notion of fighters

20.4 APII protection of wounded, sick, and shipwrecked

20.5 APII protection of the civilian population

20.6 APII protection of objects indispensable to the survival of the civilian population

20.7 APII protection of works and installations containing dangerous forces

20.8 APII protection of cultural objects and of places of worship

20.9 Prohibition of forced movement of civilians

20.10 Customary rules of targeting in NIAC

20.10.1 The principle of distinction in NIAC

20.10.2 Indiscriminate attacks

20.10.3 Proportionality

20.10.4 Precautions in attack

20.10.5 Means of combat

20.11 General NIAC targeting rules

20.12 War crimes in NIAC

20.13 Conclusion

21 Internal Security, Insurgency, and Operations Short of War

21.1 Introduction

21.2 Domestic law on the use of force

21.2.1 UK domestic law on the use of force

21.2.2 US domestic law on the use of force

21.3 Human rights law and security situations

21.4 International Covenant on Civil and Political Rights

21.5 United Nations Universal Declaration of Human Rights

21.6 Lawfulness of weapons in internal security operations

21.7 Insurgency

21.8 Military aid to the civil power

21.9 Conclusions

Part VII: Targeting Law Challenges and Compliance

22 How States Implement the Distinction Principle

22.1 Introduction

22.2 Targeting procedures

22.3 Rules of engagement

22.4 Disciplined forces

22.5 Military manuals

22.6 Military training

22.7 Legal advice

22.8 International jurisdiction

22.9 Other measures

22.10 Conclusion

23 A Challenge to the Distinction Principle—Effects Based Warfare

23.1 Introduction

23.2 Challenges to the contemporary law of targeting

23.3 Revalidating the contemporary law

23.4 Is the ’effects based’ approach new and does it justify new rules?

23.5 Stretching the definition of ’military objective’ to accommodate ’effects based’ targeting

23.6 The purpose of the attack

23.7 The meaning of’military advantage’

23.8 Can ’effects based’ accommodate to the existing law?

23.9 Applying the emerging principle

23.10 Conclusion

24 Reprisals, Neutrality, and Other Important Issues

24.1 Reprisals defined

24.2 The purpose of reprisals

24.3 UK’s declared position on reprisals

24.4 Unlawful reprisals

24.5 Reprisal use ofunlawful weapons

24.6 Reprisals under the law ofwar crimes

24.7 Neutrality and targeting

24.8 UN Charter and neutrality

24.9 Application of human rights law in armed conflict

24.10 The degree of force that may be used in armed conflict

24.11 Assassination operations in furtherance of armed conflict

24.12 Targeted killing

24.13 Perfidy, emblems, and ruses

24.14 Espionage

24.15 Mercenaries

24.16 Denial ofquarter

24.17 Safeguarding of an enemy hors de combat

24.18 Journalists

24.19 UN personnel and diplomatic staffs

24.20 Humanitarian relief

25 When Things Go Wrong

25.1 Introduction

25.2 Compensation under LOAC when things go wrong

25.3 Criminal liability when things go wrong

25.4 Is technical inferiority a defence under the law of armed conflict?

25.5 Is there a duty to investigate under the law of armed conflict?

25.6 Human rights law and investigations of deaths

25.7 Investigations by NGOs

Part VIII: Conclusion

26 Is the Law of Targeting Adequate and Does it Have a Future?

26.1 Introduction

26.2 Does the spectrum of conflict make sense?

26.3 Is the law fit for purpose—effects based warfare?

26.4 Is the law fit for purpose—asymmetric warfare and suicide bombing?

26.5 Is the law fit for purpose—wider role of civilians in armed conflict?

26.6 Is the law fit for purpose—technological advances in warfare?

26.7 Law and the future nature of warfare

26.8 A future without war

26.9 Concluding remarks

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