Siddharth Chaturvedi
Introduction
The shooting of a Chinese air balloon over the USA’s airspace has generated a lot of analysis from US experts and Chinese experience. There are indeed lots of plausible reasons which may have led to shooting the Chinese Air Balloon. However, the purpose of this piece is restricted to analyzing whether the said Chinese Air Balloon falls within the definition of ‘military objective’ since this further helps in knowing whether the action taken by the USA was legitimate within the contours of International Humanitarian Law (IHL) or not. The piece attempts to do the same by first laying down the position of IHL about what is a military objective and then attempts to analyze whether the Chinese Air Balloon falls within the definition of a military objective or not. Lastly, it attempts to reconcile different approaches to categorizing an object as a military objective or not, to further draw clarity on the question of designating Chinese Air Balloon as a military objective.
What is a ‘military objective’ under IHL?
International Humanitarian Law is the branch of International Law which governs the law of warfare. During the times of warfare, it becomes the lex specialis law, meaning it is the special law which deals with the situations of armed conflict.
a) Under Additional Geneva Protocol I
Considering that IHL is a lex specialis law governing the use of force once self-defence kicks in, it is useful to refer to the definition of military objective provided by Article 52(2) of Additional Geneva Protocol I. However, this is solely for reference purposes, because the USA has not completely signed the Additional Geneva Protocol I. A perusal of the definition of Article 52(2) of the Additional Geneva Protocol I shows that to constitute a military objective, one needs to look at its overall purpose; and whether it offers any military advantage or not. These two conditions are conjunctive. The commentary notes that there is a lot to analyse while finding the meaning of the word military advantage because there is a use of various disparate terms like “ concrete and direct military advantage or “distinct and substantial military advantage.” To resolve the same conundrum, the ICRC attempts to draw a reasonable link between Article 52 and Article 57. Article 57 of Additional Geneva Protocol I that there must be least danger to civilian lives and civilian objects. However, the definition of what is meant by military advantage remains unclear since its interpretation has led to confusion among the states who have interpreted the term according to their own choices. States such as France and Germany focus on the military advantage that an objective offers, thus once again broadening the scope of what is meant by a military objective.
b) Interpretation of the word ‘military objective’ by scholars
Though the scholars generally agree on the definition of the first part of the military objective, the latter dealing with military advantage remains contentious. Amichai and Cohen draw a complete distinction from what is meant by military advantage according to ICRC. (Page 61, The Lieber Studies Volume 6). They criticise the definition of ICRC as being too narrow. They also draw attention to general customary international laws and practices which point out the meaning of the word ‘military advantage’ referring to overall advantage rather than restricting its scope to the narrow definition. They also draw attention to general customary international laws and practices which point out the meaning of the word ‘ military advantage’ referring to overall advantage rather than restricting its scope to the narrow definition. The overall ‘military advantage’ provides more scope to conduct military operations rather than a narrow approach. As pointed out in the previous section, this approach finds the support of various states such as France and Germany. This approach will be relevant whilst analysing the designation of Chinese Air Balloon as a military objective and reducing the existing ambiguities regarding the definition of what is meant by military advantage considering that states have disagreed with the position of ICRC. Though scholars may disagree with the definition of ICRC, neither States nor do scholars provide any explanation on how their approach will be able to ensure that there is a minimal amount of casualties of civilians. Thus, in the opinion of the author, there is an urgent need to resolve this conundrum.
Does the Chinese Air Balloon Constitute a ‘Military Objective’?
a) The Approach from Art. 52(1) of AP I
From the time when the shooting of the Chinese Air Balloon took place, some facts have become clear. First, the Chinese Air Balloon had solar panels installed on it, which could have been used for different purposes such as for collecting information about the weather as well as for intelligence purposes. These kinds of objects can be used for dual purposes, as in civilian purposes as well as military purposes. For example, the use of civilian buildings by Hamas to evade Israel’s iron shield dome. A reading of the Chinese Foreign Affairs Ministry statement indicates that though the Chinese criticized the shooting of the Chinese Air Balloon, they didn’t specifically describe the Chinese Air Balloon as a dispensable object, which was extremely vital to the State. However, such a statement does not absolve the USA from responsibility under International Humanitarian Law. The USA will need to fulfil two criteria which are overall use and military advantage which are present in Article 52(2) of AP I. It is to be noted that even though the USA is not a signatory to Article 52(2) of AP I, Article 52 of API has been incorporated in legal texts of various countries, thus suggesting that it is a well-embodied principle of customary international law. Marco Sassoli and Ori Pomson have stated whenever any such kind of object is being targeted, one needs to keep in mind the principle of proportionality, which requires taking into account the kind of damage that the military action causes to civilian or civilian objects. The International Court of Justice( ICJ) has stated in the Nuclear Advisory Opinions Case and Military and Paramilitary Activities against Nicaragua that while exercising the right of self-defence, one needs to apply the principles of proportionality and necessity, which are also present in customary international law.
b) Taking into Account the Case of Prosecutor v. Galic whilst considering the Nature of the Object
The issue of whether a Chinese Air Balloon can be categorised as a military objective must also be decided on a case-to-case basis, according to the decision made by the International Criminal Tribunal for Former Yugoslavia (ICTY) in the Prosecutor v. Stanislav Galic. This approach of deciding on a case-to-case basis has to be accompanied by the principle of distinction, which requires separating between civilian and military objects according to Article 48 AP I. The underlying reasoning of the Court behind such a rationale was to ensure that only lawful targets are permitted. Further, the Court stated that such attacks which strike civilian objects without distinction may qualify as a direct attack against civilians. This argument may find favour to China, as it can argue that the USA did not follow the principle of distinction as required by Article 48AP I when it shot the Chinese Air Balloon. However, the same argument will need to be supported by the evidence that the Chinese Air Balloon was indeed a civilian object. This conflict of version is likely to be resolved once the investigation report is brought to the public.
Reconciling Different Approaches
To decide on whether the Chinese Air Balloon should be categorized as a military objective, the author suggests that it is necessary to examine the constituents that were present in the Chinese Air Balloon, according to the Galic Case. Secondly, the author suggests that the principle of proportionality needs to be considered, which is visible in Article 57 of API as well as Article 58 of API. Such an approach will help to distinguish whether the Chinese Air Ballon was a military object or a civilian object, and secondly, whether the force used by the USA in shooting down the object was proportionate. Nevertheless, considering that one of the parties i.e. the USA is not a party to API, the principle of proportionality will still be applicable, as it was previously stated that it is well embodied in customary international law. Such an approach, which takes into consideration the two factors described above is likely to find the support of various states because there has been considerable opposition to the meaning of what constitutes military advantage under Article 52 of API. Thus, a perusal of both these approaches, i.e. devised in the Galic Case as well as the principle of proportionality is likely to help in finding the true nature of the Chinese Air Balloon. This should serve as a standard for evaluating whether any object qualifies as a military object or not. Once all the constituents present in the Chinese Air Balloon become clear and details are brought to the public, the question regarding whether the Chinese Air Balloon was a military objective can be solved with the help of the above laid down standard.
Conclusion
Forecasting the public reception, it can be reasonably stated that both sides, China and the USA will not be willing to divulge from their already maintained stand on the issue. It will be interesting to see how leaders from the Chinese Government will react once the details regarding all the materials present in the Chinese Air Balloon become public. Solving the present conundrum of whether the Chinese Air Balloon is a military objective or not, is also likely to help other nations such as India to identify the true identity of the object since similar objects were seen near the Andaman and Nicobar Islands.
The author is a fourth – year student of B.A. LL.B. (Criminal Law Hons.) at the National Law University, Jabalpur.