ISSUE 76 : May/Jun - 1989 - Australian Defence Force Journal

DEFENCE FORCE JOURNAL No. 76 May/June 89once it has been occupied by the enemy. ;: It isimportant to fight for this belief because giventhe possibility that guerrilla tactics may play amajor role in future Australian defensivestrategy we should be careful not to ratify aProtocol that would restrict our ability tooperate in this way.Australia has received very little support withits stand, even from its closest allies.Any attempt to civilize the rules of war isworthy of support. George Aldrich believesProtocol I is valuable, and a long overduecodification of customary humanitarian lawworthy of adoption by countries throughoutthe world." Major Roberts, Aldrich's maincritic, does agree that Protocol 1 "extends protectionto medical units, improves protection tomedical aircraft and vehicles, provides some expansionof protection to the civilian populationand objects and attempts to ensure minimumhumane treatment for all persons." 23Criticisms of Protocol IApart from the limited support MajorRoberts has for Protocol I, he has numerouscriticisms of the document he sees as being ambiguouslydrafted and representing neither areliable codification of the rules of war nor acoherent expression of humanitarian principles.'4 These are a few of the problems evidentfrom a study of Protocol I. In order toprovide a balanced view of the Protocol theseand other problems associated with the documentwill now be discussed.The Widened Scope of Protocol IAs discussed earlier, the drafters of ProtocolI attempted to widen its application to cover:1. a wider range of conflicts,2. guerrillas, under certain circumstances, and3. increased protection to the civilianpopulation.In their attempt to satisfy these goals and, atthe same time stop future military infringementson human liberties, Protocol I hastended to raise more questions than it has beenable to successfully resolve. This poses greatburdens on the field commander whose job itwill be to interpret, apply and justify his actionsin accordance with the Protocol guidelines inday to day operational settings.A commander for example, given his responsibilitiesunder Article 57(2) must, prior to anattack:"(I) do everything feasible to verify that theobjectives to be attacked are neither civiliansor civilian objects and are not subject tospecial protection but are military objectiveswithin the meaning of para 2 of Article 52,and that it is not prohibited by the provisionsof this Protocol to attack them.(II) take all feasible precautions in the choiceand methods of attack with the view ofavoiding and in any event minimizing incidentalloss of civilian life(III) refrain from deciding to launch an attackwhich may be expected to cause incidentalloss of civilian life, injury to civilians,damage to civilian objects or a combinationthereof, which would be excessive in relationto the concrete and direct military advantageanticipated. 25From Article 57(2), it can be seen that the interestsand protection of civilians are of paramountimportance. In affording this increasedsecurity the drafters of Protocol I have (intentionallyor not) made more complex the job ofthose whose responsibility it will be to implementand abide by this document. The wordingemployed allows wide and at times varying interpretationsof the inferred standard.The commander for example could bejustifiably confused in determining, by Protocolstandards, whether he has "doneeverything feasible" (Article 57(2)(a)(i)) indetermining the suitability of a target prior toan attack. He would also have to rely on his interpretationof "all feasible precautions" (Article57(2)(a)(ii)) in ensuring the safety ofcivilians before an attack. What is judged byone commander to be feasible, given certain circumstancesmay not be judged so by another.Article 57 goes on to say that attacks "whichmay be expected" to cause incidental loss ofcivilian life "excessive" in relation to the concretemilitary advantage should not go ahead.Again, it is the commander, and his interpretationof these ambigious, undefined terms that,will be held responsible for any civiliancasualties on the battlefield. His idea ofwhether an attack will cause death, and to whatextent these deaths were excessive in relation tothe military advantage could be open to investigationand judgement made in relation toan as yet undefined standard.Article 35(3) also suffers from obscurewording: