MILITARY OBJECTIVES

Die Grenzen der Anwendung des Völkerrechts im Deutschen Recht (The Limits of Application of Public International Law in German Domestic Law)

The determination of rules of customary international law has been typically inserted in the methodological dualism between induction and deduction. By induction, interpreters find existing legal rules on the basis of the empirical material – state practice and opinio juris. By deduction, instead, interpreters find legal rules by deducing them from existing principles and rules of international law. Notably, while induction is portrayed as empirically grounded – therefore arguably objective – deduction is presented as a logical exercise, thus disguising the margin of manoeuvre that interpreters enjoy in ascertaining rules of customary international law. The present contribution contends that the methodological dualism informing the discourse on the determination of rules of customary international law shall be revisited to reflect the argumentative nature of such a determination. This twist is conducive to unveil the role that discretion plays in the ascertainment of rules of customary international law, rather than embracing a purely methodological lens which rather mystifies it. Accordingly, interpreters operate within an argumentative framework in that they necessarily select and appreciate evidence of practice and opinio juris, which is far from being incontrovertible, let alone fully representative of the majority of states. Yet, owing to the authority of courts in a legal order, their verbalization of presumably existing rules of customary international law is a necessary endeavour for the materialization of such ‘rules’ and their fruition by the legal practice.

Beyond ‘Thin’ and ‘Thick’: the International Rule of Law and the Idea of Normative Authority

CIVILIAN OBJECTS

This chapter explores the rule of distinctions, which governs the conduct of hostilities in international humanitarian law (IHL). It clarifies that the rule particularly targets objects under the two 1977 Additional Protocols, other IHL treaties, and customary law. The 1977 Additional Protocol explicitly focuses on the overarching obligation to distinguish between civilian objects and military objectives in the conduct of hostilities. The chapter also recognises how certain objects have no military function by their nature, but the virtue of their location makes an effective contribution to military action. Moreover, any civilian object could become a military objective as a consequence of its use for military functions. The chapter then highlights the special protection to hospitals and cultural property.

This doctoral thesis, now published as a monograph, provides a thorough analysis of one of the most crucial concepts of the modern law of armed conflicts (LOAC), namely military objectives. The concept is crucial because the targeting of such objectives is directly linked to the principle of distinction, which in turn is a cardinal tenet of LOAC. It requires that the belligerents must always make the distinction between civilian objects and persons on the one hand, and military objectives (persons and objects) on the other, and attack only the latter to the exclusion of the former (Article 48 of the Additional Protocol I of 1977 (AP I)). Thus, the concept of military objectives is cast amidst the protection of civilians during the conduct of hostilities (whereas Geneva Convention IV of 1949 concerns their protection outside the context of combat action). It stands to reason that this protection is an essential part of the modern law of armed conflicts. Moreover, it is only superficially surprising that AP I was the first treaty to generally define military objectives. In the nineteenth century, the civilian hardly appeared in the LOAC. It was at that time simply taken for granted that civilians were outside the reach of military action; they would not participate in it and concomitantly would be spared from attacks. The social environment of the past was such that military action and civilian presence were reasonably distinct: the battlefield was the pitch for military action, other areas were bluntly aloof from such action. The twentieth century completely changed these parameters. Air power allowed a belligerent to wreak heavy havoc into all the lands of the adverse party. Industrialization and modernization of the army made civilian objectives relevant from a military standpoint, in particular industrial plants. Finally, the difference between civilians and military personnel was blurred, since civilians participated in a variety of forms to military operations (guerilla warfare is but one of the most emblematic forms of such participation). All these factors, among others, explain that the majority of victims in modern armed conflicts are civilians, not rarely up to a proportion of 90 per cent.1 The question of military objectives remains also highly relevant when viewed from another perspective. It is a concept often applied in modern military campaigns, where air power is of the essence. However, it gives rise to uncertainties at least on two accounts. First, the definition is open-ended and contextual; it must be operationalized in single cases and this gives rise to legal uncertainty. Indeed, Article 52, § 2, AP I, the cardinal provision in this regard, provides only for criteria which have to be applied by the belligerent to single sets of facts in order to determine if an object is a military objective. Second, there are marked differences of interpretation between the US and the continental European conceptions of military objectives, especially in certain areas of targeting such as ‘economic targets’ (i.e. targets chosen for their economic value to the war-sustaining effort). Notwithstanding the relevance of the concept of military objectives, there is hardly a wealth of monographic treatment of the subject matter. Indeed, no monograph in the English language was directly and exclusively devoted to that notion before the present publication. This new monograph is thus more than welcome.

Customary international law 619. The importance of the environment is universally acknowledged. As the ICJ articulated the idea in its Advisory Opinion on Nuclear Weapons : the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn. Attacks in wartime against military objectives (as defined supra 275) often jolt the environment. The prime example is an attack against oil facilities (on their nature as military objectives, see supra 330). An air strike against an oil refinery may give rise to toxic air pollution. When an oil storage facility is demolished, the oil may seep into the ground and poison water resources. When an oil tanker is sunk at sea, the resultant oil spill may be devastating to marine life. 620. The Advisory Opinion on Nuclear Weapons went on to say: States must take environmental considerations into account when assessing what is necessary and proportionate in the pursuit of legitimate military objectives. Respect for the environment is one of the elements that go to assessing whether an action is in conformity with the principles of necessity and proportionality. The principle of proportionality has been discussed supra 408 et seq . It follows from the Court's dictum that, in keeping with the principle of proportionality, ‘an attack on a military objective must be desisted from if the effect on the environment outweighs the value of the military objective’. 621. The legal position under present-day customary LOIAC is that, when any attack is launched, ‘due regard’ must be given to the protection of the environment. Since, broadly speaking, the environment as such is a civilian object (see infra 641), even if an attack is planned in an area with little or no civilian population, it may have to be abandoned should the harm to the environment be expected to be ‘excessive’ in relation to the military advantage anticipated (see supra 408). Conversely, (i) it is very difficult to measure on a purely speculative basis the expected damage to the environment from a conventional attack; and, anyhow, (ii) ‘if the target is sufficiently important, a greater degree of risk to the environment may be justified’.

Starting from the assumption, that rules of “public international law” are not a priori different from other rules of law, inasmuch as they may directly have legal effects similar to those of, e.g., the rules of municipal law, there are some analogies, at least in technique, between the relationship public international law — municipal law and the rules of conflict of laws. In dealing with the problem of combining international law rules — particularly those laid down in treaties — and rules of the municipal legal system one should be careful to take into account the difference in “environment” of the two groups of rules, in order to avoid either under-, or overrating the effect of each of those groups of rules in situations where both are applicable. In particular the recognition of international law as “higher” law should not be considered as implying a duty of the municipal courts to apply its rules beyond their actual scope. Examples are given of such overrating in recent commentaries of some authors. On the other hand, a possible tendency to underrate the effect of international law rules is illustrated by examples drawn from a recent judgement of the Netherlands Supreme Court and from the jurisprudence of the German Bundesverfassungsgericht . It is submitted that a conflict may sometimes be avoided (or solved) by adaptation of the application of rules of municipal law in cases where the application of international law is also involved. The direct application of international law rules is distinguished from its application by national courts in respect of “incidental questions”, i.e. in cases where a rule of municipal law makes a legal relationship, not governed by international law, dependent upon another legal relationship, determined by rules of international law. In such cases municipal law adds to the rules of international law a legal effect, not contemptated by those rules. The interpretation according to which articles 65 and 66 of the Netherlands Constitution would envisage a general “addition” of this kind is discussed and rejected.

This article explores the international legal mechanisms designed to shield civilian objects from harm during armed hostilities, focusing on international humanitarian law (IHL) provisions. The research scrutinizes core tenets – distinction, proportionality, and precaution – as they appear in the Geneva Conventions and Additional Protocols, paying close attention to how these norms function in today’s urban combat environments. By examining recent policy developments such as the 2022 Political Declaration addressing explosive weapons use in populated areas, Security Council Resolution 2573, and documented breaches in current conflicts, this work highlights persistent discrepancies between legal prescriptions and their real-world application. The methodological approach combines doctrinal legal examination with analysis of customary IHL norms, drawing on the ICRC’s comprehensive study encompassing 161 rules. Research outcomes reveal that despite a solid legal foundation for protecting civilian objects, persistent difficulties emerge in enforcement, accountability, and responsiveness to evolving warfare technologies. Concluding recommendations emphasize the need for strengthened compliance through better national-level implementation, enhanced civilian casualty documentation systems, and more robust international accountability mechanisms. The analysis further demonstrates that contemporary hostilities increasingly blur the operational boundaries between civilian and military spheres, particularly through the widespread use of dual- use infrastructure, cyber capabilities, and remotely operated weapons systems. Urban density, the intermingling of civilian objects with military objectives, and the reliance on networked command-and- control architectures complicate the practical application of distinction and precaution, often producing cumulative patterns of harm that are difficult to attribute to discrete attacks. This structural complexity necessitates a re-examination of how legal and operational frameworks assess proportionality in environments where effects are temporally diffuse and spatially dispersed. It also underscores the need for enhanced accountability mechanisms capable of tracing indirect and systemic impacts on civilian populations beyond the immediate kinetic event. Finally, it highlights the growing importance of integrating technological, legal, and humanitarian perspectives to ensure that civilian protection remains a central normative constraint in the conduct of modern warfare.

The dire need to expand the frontiers of the enforcement mechanism of the rules of international humanitarian law through the international institutions has been of a global concern for ages. Driven primarily by efforts to enforced and promote the rules of international humanitarian law, there is a need to develop measures capable of promoting the rules of international humanitarian law through the international institutions. The objective of this paper is to analyze and establish that expanding the frontiers of the enforcement mechanism of the rules of international humanitarian law through the international institutions bothering on individual or state responsibility will further strengthen the low level of enforcement of these rules. However, this paper noted that there is a significant enforcement gap both at the regional and international levels. Further, this paper argues that in order to guarantee a high level of enforcement of these rules both at the regional and universal levels, a more integral approach on the role of international institutions is capable of addressing the enforcement gap of the rules of international humanitarian law. This paper adopts a diagnostic approach based on a review of literatures, which is achieved by synthesis of ideas. This paper concludes with recommendations among others that in order to boast the purpose for which the rules of international humanitarian law were made, the level of enforcement of these rules should be expanded to fill the enforcement gaps at the domestic, regional and universal levels.

Since the beginning of the nineties Germany has taken part in UN military missions. The Afghanistan mission since 2001 is the largest and most visible German engagement at present. Foreign assignments of German soldiers do not only pose questions with regard to constitutional law but might also have legal bearings on criminal law. When soldiers cause death of enemy combatants or civilians the question of individual criminal responsibility of the operating soldier and commander in charge arises. The wider context of international law in which military missions take place brings the relation between national criminal law and international law into focus.In its first part this article deals with criminal responsibility under the Völkerstrafgesetzbuch of 2006. It has been included into German law in the aftermath of issuing the Rome Statute of the International Criminal Code and comprehends the statutory offence of genocide, crimes against humanity and war crimes. War crimes may only be committed during an armed conflict, requiring an examination of the conditions under which a conflict might be qualified as an international or non-international armed conflict. In the following, the authors focus on the highly relevant war crime of disproportionally causing death of civilians. Especially with regard to the more complicated situation of a non-international armed conflict a careful determination of who falls in the category of a civilian is undertaken.The second part analyses a parallel application of the German Criminal Code and the Völkerstrafgesetzbuch. As this question is answered in the affirmative, causing loss of life of a person during a military mission fulfills the actus reus of homicide. However, the fact that the act takes place within a military mission is to be taken into account also within the German Criminal Code. While compliance with internal Bundeswehr or NATO rules may not exculpate the soldier, compliance with international humanitarian law leads to exemption from punishment. The rules of international humanitarian law apply to international and non-international armed conflicts and are congruent with regard to the basic principles. An act of a soldier may not be punishable to the extent that the soldier acted in conformity with the applicable rules of international humanitarian law. In the view of the authors this is especially important with regard to the rules of procedure as a violation thereof is not reflected as a crime in the Völkerstrafgesetzbuch.In cases in which soldiers act outside the context of an armed conflict, international humanitarian law is not applicable. It is argued that in these situations the human rights laws general prohibition to use deadly force outside the narrow boundaries of self-defense persists. A UN mandate, even in conjunction with a mandate of the German Bundestag, by itself cannot be construed as to exculpate an individual soldier as the mandate concerns the aspect of ius ad bellum and not ius in bello and has no bearing on the individual.With regard to the mens rea a soldier might act without intent, leading to a conviction for negligence.In sum, the authors illustrate that international law presents precise standards for legitimate and illegitimate operations in armed conflicts. From this it follows whether a soldier who causes the death of another person has committed a crime and is to be tried in a German Court proceeding or not.

Today, international health law and international consumer law are developing in the same direction and with much interaction. But the developments are not uniform. As international health law takes consumer protection into account, it tends to increase the gap between a “Western international law” and a “Third World international law,” and to emphasize the negative harmonization approach towards international health protection. Another problem concerns the unification of the rules of international health law and those of international consumer law. This problem is particularly difficult to solve, as the rules of international consumer law themselves are still far from being unified.

Treaties are the most visible, some would even say the ‘main source of international law’. This is true not only at the global level, but even more so in Europe. However, these treaties hardly explain the idiosyncratic, sometimes exceptionalist ways in which international law is identified, interpreted, and applied in this region. Still less do they explain the disproportionate normative influence of European legal rules outside Europe. Attributing these particularities and imbalances to ‘eurocentrism’ in international law is considered almost a truism these days. Yet, when examining how the European legal tradition translates into positive international law one category of rules has received little attention so far: the unwritten European rules that are resorted to within and beyond Europe. The idea of ‘unwritten’ European rules is not only historically charged but also conceptually vague. However, this article argues that a close analysis of their role is central to both understanding and overcoming the persistence of ‘eurocentrism’ in international law. To demonstrate this claim, the article introduces the term ‘unwritten’ European rules in international law. A historical section illustrates their ambivalent role since the beginning of the nineteenth century. It then analyses the continuing relevance of unwritten European rules in contemporary legal practice. The final section discusses how a common framework of secondary rules can help to distinguish between hegemonic and integrative uses of unwritten European rules, before concluding.

As one of the oldest substantive areas of regulation under international law, international humanitarian law (IHL) has played a prominent role in many of the key developments in international law. As public international law expanded, particularly in the latter part of the twentieth century, however, this role of IHL necessarily diminished, at least relative to other specialized regimes in international law. In addition, growing specialization has led to a certain isolation of IHL from public international law more generally. This special issue of the Journal of Conflict & Security Law examines this phenomenon and considers the relationship between IHL and general international law (understood as those rules of international law that apply across specialist regimes, such as rules on law creation, treaty interpretation and State responsibility). In considering how a range of general international law issues regarding sources, State responsibility and structural concepts such as State sovereignty arise in the specific field of IHL, a rich and complex relationship between IHL and general international law is revealed. The articles in this special issue demonstrate that this relationship varies considerably depending on the particular focus, from topics on which IHL and general international law diverge fundamentally to those in which IHL has played a key role in the development of certain general international law concepts.

The development of international relations has made most countries of the world rely on diplomatic representation in all its forms as a means of communication and protection of mutual interests. The diplomatic mission is the link between the governments of the countries that are working to achieve cooperation starting from the transfer of different opinions between countries and trying to overcome the difficulties that escape the entanglement Interests. The Diplomatic Mission has given its diplomatic and diplomatic functions to the diplomatic missions a special status, with full protection, so that it can play its role quietly away from all pressures, In the State which has adopted it. This reality is found in peacetime when States have ratified the Vienna Convention on Diplomatic Relations, 1961. In times of war, if we accept the severance of diplomatic relations because of a war between two countries exchanging diplomatic representation, States must apply the rules of international humanitarian law and consider diplomatic envoys among the civilians recognized by the Fourth Geneva Convention of 1949 as special protection against the enemy state, And the role and headquarters of diplomatic missions should be classified as civilian objects that should not be the target of military operations. To establish and maintain international protection for diplomatic missions and to establish mechanisms for this, namely, the establishment of international responsibility for the violation of the inviolability of the diplomatic envoy and the role of diplomatic missions, there is a tortious responsibility by the receiving State as it did not provide security for the diplomatic mission, Executive or judicial authority. The personal criminal responsibility of the President for his acts or those of his subordinates is also carried out If a serious violation of the Fourth Geneva Convention of 1949 is committed.