Classification

The basic rule

273. The requirement of distinction between combatants and civilians, as well as between military objectives and civilian objects, is underscored in Article 48 of AP/I, entitled ‘[b]asic rule’:

In 2005, the Eritrea-Ethiopia Claims Commission found Article 48 to be an expression of customary international law. The basic rule has two parts. One is its protective aspect, granting an exemption from attack to civilians and civilian objects. But no less important is the corresponding exposure to attack of combatants and military objectives.

B. Military objectives

274. The coinage ‘military objectives’ first came into use in the (non-binding) Hague Rules of Air Warfare. From 1923 on, references to military objectives got gradually absorbed into the texts of binding treaties (see infra 275). Today, ‘the principle of the military objective has become a part of customary international law for armed conflict’ (whether on land, at sea or in the air).

275. The phrase ‘military objective’ was used in a peripheral manner in the 1949 Geneva Conventions (which failed to define it), as well as the 1954 CPCP. It took centre stage in Article 52(2) of AP/I, which defines it as follows:

276. The definition crafted in Article 52(2) is reiterated verbatim in Protocols II and III, annexed to the CCCW, and in the 1999 Second Protocol to the CPCP. As the Eritrea-Ethiopia Claims Commission held, the provision of Article 52(2) ‘is widely accepted as an expression of customary international law’. Even those who believe that such conclusion is ‘premature’ concede that it largely agrees with the practice of States, including the practice of the US (which objects to AP/I on other grounds) subject to one significant textual modification that will be examined infra 292 et seq.