Practice Relating to Rule 8. Definition of Military Objectives

The objectives belonging to the following categories are those considered to be of generally recognized military importance:

8.56 … If there is doubt as to the status of a civil aircraft, it should be called upon to clarify that status. If it fails to do so, or is engaged in non-civil activities, such as ferrying troops, it may be attacked …

8.57 Civil aircraft, which have been absorbed into a belligerent’s air force and are being ferried from the manufacturer to a belligerent for this purpose, may be attacked.

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8.59 Civil aircraft on the ground may only be attacked in accordance with the normal rules relating to military objectives. However, since they may be used for transporting troops or supplies, their status will frequently depend upon the prevailing military situation. 

1. The following are generally accepted as being military objectives:

2. Civilian vessels, aircraft, vehicles and buildings are military objectives if they contain combatants, military equipment or supplies.

3. The following objects, depending on the circumstances, may constitute military objectives:

Whether a road or railway constitutes a military objective depends on the military situation on the spot. The answer to the question of whether the acquisition of such an object at that moment yields a definite military advantage is decisive for the qualification of the object. 

a. Enemy Merchant Ships

b. Enemy Civil Aircraft

[C]ivilian vehicles, ships and aircraft when they take part in hostilities, transport troops or military supplies, are escorted by military personnel (unless there is an agreement to the contrary), cross duly marked prohibited areas (unless there is an agreement to the contrary), disobey an order to stop or actively resist inspection.  

Controversy exists over whether, and the circumstances under which, other objects, such as civilian transportation and communications systems, dams and dikes can be classified properly as military objectives … A key factor in classification of objects as military objectives is whether they make an effective contribution to an adversary’s military action so that their capture, destruction or neutralization offers a definite military advantage in the circumstances ruling at the time. 

Pursuant to § 170 para. 2 StPO [Penal Procedure Code], the investigation proceedings which were initiated by the order of 12 March 2010 against Colonel (Oberst) Klein and Company Sergeant Major (Hauptfeldwebel) Wilhelm due to suspected offences under the VStGB [International Crimes Code] and other offences are to be terminated as a result of the investigations conducted and based on the sources of information set out hereafter and on the reasons given in detail hereafter. 

The following is to be considered regarding the subjective element of § 11 (1) (3) VStGB [which states that carrying out an attack by military means and definitely anticipating that the attack will cause death or injury to civilians or damage to civilian objects on a scale out of proportion to the concrete and direct overall military advantage anticipated is a war crime in international and non-international armed conflict]:

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bb)

At the time of the order to drop the bombs, both fuel tankers, the fuel contained therein and the two towing vehicles located in close proximity to the fuel tankers constituted legitimate military objectives under the international law of armed conflict.

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… The fuel tankers and the fuel … became military objectives with the abduction by the Taliban because they were suited to effectively contribute to military action from this moment on. The fuel could be used to refuel vehicles used for attacks and used in combination with explosives as improvised explosive devices. It thus constitutes a military objective in any case as its destruction would offer a considerable military advantage. The fuel tankers also constituted a military objective … The reason is that they could be used for attacks with vehicle-based explosive devices as already happened in Afghanistan five times in 2009 until 4 September 2009. It is irrelevant that the fuel tankers were immobilized on a sandbank. Colonel (Oberst) Klein wanted to prevent any future movement of the tankers. There was the risk that the insurgents would successfully free the tankers and use them for military purposes. … The same holds true for both vehicles present in the immediate surroundings of the fuel tankers. Because of their concrete use they were meant to make an effective contribution to the Taliban’s military action. Therefore, criminal responsibility under § 11 para. 11 no. 3 VStGB can be excluded. 

IDF [Israel Defense Force] operations in Lebanon have also included operations directed against infrastructure and property. These have included:

Bridges and roads – The activity of terrorist groups in Lebanon is dependent on major transportation arteries, through which weaponry and ammunition, as well as missile launchers and terrorist reinforcements are transported. Damage to key routes is intended to prevent or obstruct the terrorists in planning and perpetrating their attacks. In this case it is also intended to prevent the kidnapped soldiers being smuggled out of the country.

Under international law there is widespread recognition that lines of transportation which can serve military purposes are a legitimate military target. In its Commentary on the Additional Protocols to the Geneva Conventions, the ICRC includes in its list of military objectives considered to be of “generally recognized military importance”: “Lines and means of communications (railway lines, roads, bridges, tunnels and canals) which are of fundamental military importance”.

A useful practical test for gauging the military importance of lines of transportation is proposed in the US Air Force Pamphlet, which asks “whether they make an effective contribution to an adversary’s military action so that their capture, destruction or neutralization offers a definite military advantage in the circumstances ruling at the time”.

In the current situation, notwithstanding the security justifications for targeting major roads, the IDF takes pains to ensure that sufficient routes remain open to enable civilians to leave combat zones, and to permit the access of humanitarian supplies. Efforts are also made to ensure that damage to civilian vehicles is minimized.

Runways at Beirut International Airport – In the view of the IDF, rendering the runways unusable constituted the most appropriate method of preventing reinforcements and supplies of weaponry and military materiel reaching the terrorist organizations. It is also a response to reports that it is the intention of the terrorists to fly the kidnapped Israelis out of Lebanon.

Airports are widely recognized to be legitimate military targets. The Canadian Law of Armed Conflict Manual, for example, notes that “ports and airfields are generally accepted as being military objectives” (14) while the ICRC list of generally recognized military objectives includes: “airfields, rocket launching ramps and naval base installations”.

It should be also be noted that, in its operation at Beirut Airport, the IDF was careful not to damage the central facilities of the airport, including the radar and control towers, allowing the airport to continue to control international flights over its airspace. 

The guiding principle adopted by the IDF [Israel Defense Forces] was to target only infrastructure that was making a significant contribution to the operational capabilities of the Hizbullah terrorists. This meant that, for the most part, Israeli attacks were limited to the transportation infrastructure. Most of the other infrastructure (medical, cultural, railroad, tunnels, ports, banking, manufacturing, farming, tourism, sewage, financial, electricity, drainage, water and the like) was left almost completely untouched.

All IDF operations in Lebanon were directed against legitimate military objectives, and specifically in relation to infrastructure, included the following:

Bridges and roads – The activity of terrorist groups in Lebanon was dependent on major transportation arteries through which weaponry and ammunition, as well as missile launchers and terrorist reinforcements, were transported. Damage to key routes was intended to prevent or obstruct the planning and perpetrating of attacks by the terrorists. It was also intended to prevent the kidnapped Israeli soldiers from being smuggled out of the country.

Under international law there is widespread recognition that lines of transportation which can serve military purposes are a legitimate military target. In its Commentary on the Additional Protocols to the Geneva Conventions, the International Committee of the Red Cross (ICRC) includes in its list of military objectives considered to be of “generally recognized military importance”: “Lines and means of communications (railway lines, roads, bridges, tunnels and canals) which are of fundamental military importance.”

A useful practical test for gauging the military importance of lines of transportation is proposed in the US Air Force Pamphlet, which asks “whether they make an effective contribution to an adversary’s military action so that their capture, destruction or neutralization offers a definite military advantage in the circumstances ruling at the time.”

Notwithstanding the operational justifications for targeting major roads in Lebanon, the IDF took pains to ensure that sufficient routes remained open to enable civilians to leave combat zones and to permit access for humanitarian supplies. Efforts were also made to ensure that damage to civilian vehicles was minimized.

Runways at Beirut International Airport – In the view of the IDF, rendering the runways unusable constituted one of the most important and appropriate methods of preventing reinforcements and supplies of weaponry and military materiel reaching the terrorist organizations. It was also a response to reports that the Hizbullah terrorists intended to fly the kidnapped Israelis out of Lebanon.

Airports are widely recognized to be legitimate military targets. The Canadian Law of Armed Conflict Manual, for example, notes that “ports and airfields are generally accepted as being military objectives” while the ICRC list of generally recognized military objectives includes: “airfields, rocket launching ramps and naval base installations.”

It should also be noted that, in its operation at Beirut Airport, the IDF was careful not to damage the central facilities of the airport, including the radar and control towers, allowing the airport to continue to control international flights over its airspace. 

We are directing the aircraft against military targets, only military targets, and those particularly associated with the lines of communication between North Vietnam and South Vietnam over which they are sending the men and equipment which are the foundation of the Viet Cong effort to subvert the Government of South Vietnam. 

U.S. policy is to target military targets only, particularly those which have a direct impact on the movement of men and supplies into South Vietnam. These targets include but are not limited to roads, railroads, bridges [and] road junctions … In the specific case of Nam Dinh and Phu Li, targets have been limited to railroad and highway bridges, railroad yards … 

A bridge or highway vital to daily commuter and business traffic can be equally crucial to military traffic, or support for a nation’s war effort. Railroads, airports, seaports and the interstate highway system in the United States have been funded by the Congress in part because of US national security concerns, for example; each proved invaluable to the movement of US military units to various ports for deployment to Southwest Asia (SWA) for Operations Desert Shield and Desert Storm. Destruction of a bridge, airport, or port facility, or interdiction of a highway can be equally important in impeding an enemy’s war effort. 

The attacks on the Novi Sad bridge and six other bridges in which civilian deaths occurred … also were of questionable military effect. All are road bridges. Most are urban or town bridges that are not major routes of communications. Human Rights Watch questions individual target selection in the case of these bridges. U.S. military sources have told Human Rights Watch that bridges were often selected for attack for reasons other than their role in transportation (for example, they were conduits for communications cables, or because they were symbolic and psychologically lucrative, such as in the case of the bridge over the Danube in Novi Sad). The destruction of bridges that are not central to transportation arteries or have a purely psychological importance does not satisfy the criterion of making an “effective contribution to military action” or offering a “definite military advantage, “ the baseline tests for legitimate military targets codified in [the 1977 Additional] Protocol I, art. 52.