The Report
of the Iraq Inquiry
771.
Lord Goldsmith
responded on 30 March, highlighting areas where Mr
Hoon’s
approach
might require clarification.267
772.
Lord Goldsmith
noted that “military location” had been defined using the
language
of Article
52(2) AP1, which defined a “military objective”, but without the
second limb of
that
definition.268
It was not
therefore the case that all military locations would
necessarily
be military
objectives. Lord Goldsmith added:
“In any
event, the location is not the objective; the objective is the
individual. It is not
obvious why
as a matter of law there should be a higher (civilian) casualty
limit for
your
category of “military location” as defined.”
773.
Lord Goldsmith
asked if it had been intended that military locations could
include
dual-use
facilities, which could fall under the current definition. If that
was not the case,
Lord
Goldsmith recommended revising the definition to refer to locations
which were
considered
part of the military infrastructure.
774.
In relation to
attacks on individuals believed to be in a location which was
not
itself a
military objective, Lord Goldsmith wrote that Mr Hoon would need to
be able to
demonstrate
that he was not making a civilian object, such as a school, the
object of the
attack:
“Attacks must be limited to strictly military objectives (in this
case the individual):
see
Additional Protocol 1, Article 52.”
775.
Lord Goldsmith
noted paragraph 1979 of the International Committee of the
Red
Cross
(ICRC) Commentary to Article 51(3), which suggested that the
attacks must be
carried out
“with means which are not disproportionate in relation to the
objective, but
are suited
to destroying only that objective”. While it was “not entirely
clear” what the
commentary
meant, it was indicative that “any decision to attack one of the
individual
leaders”,
if it caused substantial loss of civilian life, would be “legally
and politically
controversial”,
especially if the attack failed to take out the individual leader
targeted.
776.
Those points
also had to be considered in addition to the requirement
that
“incidental
civilian loss/damage should not be excessive in relation to the
military
advantage”.
Lord Goldsmith wrote that there could otherwise be a “strong risk”
of the
UK being
accused of directing attacks at the civilian population and objects
in breach of
IHL. He
advised that consideration applied “even more strongly in relation
to any attacks
which you
might be asked to approve on individuals believed to be in ‘special
locations’,
since many
of these locations are entitled to special protection under IHL and
it may be
prohibited
to commit acts of hostility directed against them”.
267
Letter
Goldsmith to Hoon, 30 March 2003, ‘Iraq: Targeting
Individuals’.
268 Article
52(2) AP1 provides that: “In so far as objects are concerned,
military objectives are limited to
those
objects which by their nature, location, purpose or use make 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.”
510