Introduction

Targeting law lies at the very core of international humanitarian law. Yet, no treaty with universal participation exists setting out this body of law in any detail, as is the case, for instance, with the treatment of prisoners of war or protection of civilians in occupied territory. The lacuna is unsurprising, for international humanitarian law emerges through a measured balancing of humanitarian objectives with the realities of military necessity. Targeting, the sine qua non of warfare, resides at the apogee of military necessity. This being so, States are understandably reluctant to accept constraints on their freedom of action when attacking their enemy.

The 1977 Additional Protocol I to the 1949 Geneva Conventions contains the bulk of generally recognised codified targeting norms. However, standing on its own, the Protocol has seldom formally applied during an armed conflict. First, it binds only parties. Although parties numbered 166 by October 2006, non-parties included, inter alia, India, Indonesia, Israel, Iran, Iraq, Pakistan, Turkey, and the United States. Article 96 of Additional Protocol I provides that Parties are bound when fighting non-parties only in the unlikely event that the latter ‘accepts and applies’ its provisions.