|By Gaby Rado
Six months before it ended, the war in Bosnia was brought home to the foreign television journalists in the form of an enormous rocket that exploded in the courtyard of the Sarajevo television building. Fired from a Bosnian Serb stronghold, the explosive—actually a gravity bomb strapped to rockets—destroyed the offices of two international television agencies as well as the European Broadcasting Union. Most of the wounded were foreign journalists.
Unbeknownst to most television reporters, customary law long ago deemed radio and television stations to be military objectives as are other military-industrial, military research, infrastructure, communications, and energy targets. The logic is that they can usually be put to military use and are essential for the functioning of any modern military in time of conflict. Journalists per se are not a legitimate target, but if they are wounded while visiting or working in a legitimate target, it is considered collateral damage.
The definition of a legitimate target is central to the laws of armed conflict. Additional Protocol I, Article 52, defines a legitimate military target as one “which by [its] nature, location, purpose, or use makes 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.” Any attack requires that it be justified, in the first place, by military necessity. However, no object may be attacked if damage to civilians and civilian objects would be excessive when compared to that advantage. And if there are doubts whether a normally civilian facility is contributing to military action, the object is presumed to be civilian.
Legitimate military targets include: armed forces and persons who take part in the fighting; positions or installations occupied by armed forces as well as objectives that are directly contested in battle; military installations such as barracks, war ministries, munitions or fuel dumps, storage yards for vehicles, airfields, rocket launch ramps, and naval bases.
Legitimate infrastructure targets include lines and means of communication, command, and control—railway lines, roads, bridges, tunnels, and canals—that are of fundamental military importance.
Legitimate communications targets include broadcasting and television stations, and telephone and telegraph exchanges of fundamental military importance.
Legitimate military-industrial targets include factories producing arms, transport, and communications equipment for the military; metallurgical, engineering, and chemicals industries whose nature or purpose is essentially military; and the storage and transport installations serving such industries.
Legitimate military research targets include experimental research centers for the development of weapons and war matériel.
Legitimate energy targets include installations providing energy mainly for national defense, such as coal and other fuels, and plants producing gas or electricity mainly for military consumption. Attacks on nuclear power stations and hydroelectric dams are generally, but not always, prohibited by the laws of war.
One of the major problems in differentiating legal from illegal or criminal acts of war concerns apparently civilian objectives that may have a use by the military. Most buildings used by civilians in peacetime are protected under international law. Article 52 of Additional Protocol I states, “In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house, or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used.”
It is a war crime to attack willfully anything that is not a legitimate military target. On the other hand, incidentally causing damage to a protected person or object is not always a war crime. Although the categories listed above indicate facilities typically regarded in customary law as legitimate targets, attacking forces are still obliged to meet the test of whether predictable harm would be proportional to the military advantage. Given that it is a balancing test which must often be performed under condition of imperfect information, commanders customarily have latitude to exercise their judgment. Still, if the harm is “excessive in relation to the concrete and direct military advantage anticipated,” it is a war crime.