Practice Relating to Rule 8. Definition of Military Objectives

The presence of noncombatants in or around a military objective does not change its nature as a military objective. Noncombatants in the vicinity of a military objective must share the danger to which the military objective is exposed.

Civilians working in a store on a military air base may not necessarily be taking … a direct part [in hostilities]. However, stores, depots, supply columns and military installations are clearly military objectives which may be attacked, regardless of the presence of civilian workers.

Civilians who are not directly involved in combat but are performing military tasks are not combatants. If they are killed or injured during an attack on a legitimate military objective there is no breach of LOAC provided the death or injury is not disproportionate to the direct and concrete military advantage anticipated from the attack. The presence of civilians on or near the proposed military objective (either in a voluntary capacity or as a shield) is merely one of the factors that must be considered when planning an attack. 

5.30 The presence of non-combatants, including civilians, in or around a military objective does not change its nature as a military objective. Non-combatants in the vicinity of a military objective must share the danger to which the military objective is exposed …

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5.36 … [C]ivilians working in a store on a military air base may not necessarily be taking … a direct part [in hostilities]. However, stores depots, supply columns and military installations are clearly military objectives which may be attacked, regardless of the presence of civilian workers.

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5.55 Civilians who are not directly involved in combat but are performing military tasks are not combatants. If they are killed or injured during an attack on a legitimate military objective there is no breach of the LOAC provided the death or injury is not disproportionate to the direct and concrete military advantage anticipated from the attack. The presence of civilians on or near the proposed military objective (either in a voluntary capacity or as a shield) is one of the factors that must be considered when planning an attack. 

[The following] are considered military objectives:

For targeting purposes, the presence of civilians who are authorized to accompany the armed forces without actually being members thereof (such as crews of military aircraft, war correspondents, supply contractors or members of services responsible for the welfare of the armed forces) does not render a legitimate target immune from attack. Such persons run the risk of being attacked as part of a legitimate target. 

For targeting purposes, the presence of civilians who are authorized to accompany the armed forces without actually being members thereof (such as crews of military aircraft, war correspondents, supply contractors or members of services responsible for the welfare of the armed forces) does not render a legitimate target immune from attack. Such persons run the risk of being attacked as part of a legitimate target. 

II.1.6. Civilians accompanying the armed forces

The presence of civilians who are authorized to accompany the armed forces without really being members of these forces (members of crews of military aircraft, war correspondents, suppliers, members of services responsible for the welfare of the armed forces) does not render a legitimate objective exempt from attacks. These persons run the risk of being attacked as elements of the legitimate objective. 

Deliberate use of noncombatants to shield military objectives from enemy attack is prohibited. The presence of non-combatants within or near military objectives does not preclude an attack on such objectives … Unlike military personnel (other than those in a specially protected status such as medical personnel and the sick and wounded) who are always subject to attack, whether on duty or in a leave capacity, civilians are immune from attack unless they are engaged in direct support of the enemy’s armed forces or provide them with logistical support. Civilians who provide command, administrative or logistical support to military operations are exposed to attacks while performing such duties. Similarly, civilian employees of navy shipyards, the merchant navy personnel working on ships carrying military cargo, and the workers on military fortifications can be attacked while they carry out such activities. 

Civilians present in military objectives are not protected against attacks directed at these objectives; the presence of civilian workers in an arms production plant, for instance, will not prevent opposing armed forces from attacking this military objective. 

It is the duty of the attacker to distinguish between military targets and civilian targets, and the attacker should take into account the presence of civilian targets when planning the attack. No area in which military targets are combined with civilian targets may be considered as merely another target.

Upon attacking a military target that is located at the heart of [a] civilian district, for example, a group of enemy soldiers who are holed up in the heart of a city and surrounded by civilians, they may be attacked, but only if the expected military benefit to one’s side from the offensive exceeds the expected damage that might be caused to civilians. There is no set formula according to which it is possible to weigh the civilian damage against the expected military benefit from the offensive; but it is a question of degree. An offensive would not be considered legitimate if it presented a significant risk to many civilian lives in return for gaining a subordinate military objective. 

Civilians must not be used to screen the military movements and for the purpose of concealment amongst them. This is also the reason why soldiers are under an obligation to wear uniform or identification insignia so as to make it possible to distinguish clearly between them and civilians.

It is nevertheless unreasonable to expect a military force to completely hold its fire in every incident in which opening fire could endanger civilians; if this were the case, the best defence would be simply to surround military targets with civilians.

How should you behave when your adversary breaks this rule and intersperses military targets with civilian installations? (for example, when a military force is located inside a village or a squad of soldiers shelters in a civilian structure – is a commander entitled to shell the entire village? To bomb the building and to demolish it with all its occupants, soldiers and civilians alike?)

It is difficult to provide unequivocal answers to these questions. Each army and each commander needs to deal with this dilemma in ways that stem from the ethical outlook, the degree of risk that can be assumed in order to prevent the killing of innocent people and the nature of the enemy that is being contended with. The answer often depends on the circumstances. The situation can range from that of a large force pursuing a small company of enemy soldiers besieged from every angle, to a situation in which a unit in distress is under fire from a civilian target, for example from the rooftop of a museum. In the first incident the commander should display much more restraint, and in the second, the military needs [to] justify and permit an attack on the party that has misused the location, consequently weakening the protection afforded to the museum. 

Acts such as the manufacturing and transport of military materiel in the hinterland certainly do not constitute a direct participation in hostilities. In addition, it has to be borne in mind that the fact that civilians are working in, for example, a weapons factory does not convert such an industrial object into a civilian object. Such a case has to be assessed in the light of the definition of a military objective. 

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- Civilian persons within a military objective or its immediate surroundings share the danger to which it is exposed.

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Important: a military objective remains a military objective even if civilian persons are present therein.

Civilian persons, medical personnel and chaplains present in a military object or in the immediate vicinity of such an object share the risk of possible attacks.

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- The presence of military objectives within a civilian population does not deprive the population of its civilian character, but civilians in a military objective or its immediate surroundings are at risk. 

which may not be the object of a direct attack but which can suffer the consequences of an attack upon a military objective. Such is the case for civilians … who may suffer the effects of an attack upon a legitimate military objective due to:

Indirect objectives are those that cannot be directly attacked, but may suffer the consequences of an attack on a military objective.

Civilians … are considered to be indirect objectives that may suffer the effects of an attack on a legitimate military target in the following cases:

Civilians who are inside or in the immediate vicinity of military objectives run the risks to which the military objectives are exposed. For example, the presence of civilian workers inside a weapons factory does not prevent the enemy from attacking this military objective. 

Deliberate use of noncombatants to shield military objectives from enemy attack is prohibited. Although the principle of proportionality underlying the concept of collateral damage and incidental injury continues to apply in such cases, the presence of non-combatants within or adjacent to a legitimate target does not preclude attack of it … Unlike military personnel (other than those in a specially protected status such as medical personnel and the sick and wounded) who are always subject to attack whether on duty or in a leave capacity, civilians, as a class, are not to be the object of attack. However, civilians that are engaged in direct support of the enemy’s war-fighting or war-sustaining effort are at risk of incidental injury from attack on such activities. 

Although the principle of proportionality underlying the concept of collateral damage continues to apply in such cases, the presence of civilians within or adjacent to a legitimate military objective does not preclude attack of it. Such military objectives may be lawfully targeted and destroyed as needed for mission accomplishment. In such cases, responsibility for the injury and/or death of such civilians, if any, falls on the belligerent so employing them.

The presence of civilian workers, such as technical representatives aboard a warship or employees in a munitions factory, in or on a military objective, does not alter the status of the military objective. These civilians may be excluded from the proportionality analysis.

Civilians who voluntarily place themselves in or on a military objective as “human shields” in order to deter a lawful attack do not alter the status of the military objective. While the law of armed conflict is not fully developed in such cases, such persons may also be considered to be taking a direct part in hostilities or contributing directly to the enemy’s warfighting/war-sustaining capability, and may be excluded from the proportionality analysis. Attacks under such circumstances likely raise political, strategic, and operational issues that commanders should identify and consider when making targeting decisions. 

But the presence of civilians in the area does not stop a military objective from being a legitimate target. This is not just the law, as noted above, but also the practice of states. The Australian Defence Force Manual reflects the prevailing practice:

In practice Israel does not adopt the position reflected here that civilians in the vicinity of a military objective must “share the danger”, but rather takes significant efforts to avoid or minimize civilian casualties. 

The presence of civilians in the area, however, does not stop a military objective from being a legitimate target. This is the law, as noted above, and reflected in state practice. Thus, for example, the Australian Defense Force Manual states:

If a location is a legitimate military objective, it does not cease to be one because civilians are in the vicinity. As Article 28 of … [1949] Geneva Convention [IV] provides:

Clearly, the deliberate placing of military targets in the heart of civilian areas is a serious violation of humanitarian law, and those who chose to locate such targets in these areas must bear responsibility for the injury to civilians which this decision engenders. … The defender has the primary duty of protecting the civilian population and removing civilians from military targets, if necessary. And … [s]hould civilian casualties ensue from an attempt to shield combatants or a military objective, the ultimate responsibility lies with the belligerent placing innocent civilians at risk.

Nonetheless the callous disregard of those who hide behind civilians does not absolve the state seeking to respond to such attacks from the responsibility to avoid or at least minimize injury to civilians and their property in the course of its operations. In particular this raises the complex issue of proportionality.  [emphasis in original; footnotes in original omitted]

99. … [T]the presence of civilians at a site (whether voluntarily or involuntarily) does not by itself forbid an attack on an otherwise legitimate military target. …

100. The expected presence of civilians, though, does impact the analysis of the proportionality of an attack.  [emphasis in original]

Civilians who work within a military objective are at risk from attack during the times in which they are present within that objective, whether their injury or death is incidental to the attack of that military objective or results from their direct attack … The substitution of a civilian in a position or billet that normally would be occupied by a member of the military will not make that position immune from attack. 

Civilians using those bridges or near other targets at the time of their attack were at risk of injury incidental to the legitimate attack of those targets … The presence of civilians will not render a target immune from attack; legitimate targets may be attacked wherever located (outside neutral territory and waters). 

Sections of the civilian population, like munition workers, which are closely identified with military objectives proper, may, while so identified, be legitimately exposed to air attack and to other belligerent measures aiming at the destruction of the objectives in question. 

Persons providing only indirect support to the Nicaraguan army by, inter alia, working in defense plants, distributing or storing military supplies in rear areas, supplying labor and food, or serving as messengers or disseminating propaganda … may not be subject to direct individualized attack or execution since they pose no immediate threat to the adversary. However, they assume the risk of incidental death or injury arising from attacks against legitimate military targets.  [emphasis in original]

Persons providing only indirect support to the Angolan, Cuban, or South African armed forces or UNITA [União Nacional para Independência Total de Angola] by, inter alia, working in defense plants, distributing or storing military supplies behind conflict areas, supplying labor and food, serving as messengers, or disseminating propaganda … may not be subject to direct individualized attack because they pose no immediate threat to the adversary. They assume, however, the risk of incidental death or injury arising from attacks and the use of weapons against legitimate military targets.