Attack

(1) (e) “Attack” means an act of violence, whether in offence or in defence.

[Commentary]

  1. This definition is based on Art. 49 (1) of AP/I.[40] The qualifier “against the adversary,” which appears in Art. 49 (1) of AP/I, is omitted here to avoid confusion. An attack need not be directed against the enemy’s military forces or assets for the Rules reflected in this Manual to apply. Most importantly, an “attack” qualifies as such even if it is directed -– unlawfully –- against civilians, civilian objects or Neutrals (see, inter alia, Rule 11 and Section X). In other words, the term “attack” is employed in Rule 1 (e) only to describe the physical acts which so qualify, without reference to their lawfulness.

  2. The definition of “attack” is strictly a matter of the law of international armed conflict; it has nothing to do with the jus ad bellum concept of an “armed attack” appearing in Art. 51 of the UN Charter.[41] This means that the Rules of this Manual apply to acts of violence in armed conflict regardless of whether such acts amount to an armed attack against a State in the sense of jus ad bellum.

  3. The phrase “in defence” is used in its operational sense; it is not meant to refer to the jus ad bellum concept of “self-defence” as used in Art. 51 of the UN Charter.

  4. As indicated in paragraph 7 of the Commentary on Rule 1 (b), “[a]ttack” does not necessarily imply conduct of an offensive nature against the enemy. That is, offensive and defensive operations are not distinguished from one another. For the purposes of this Manual, an attack is any military act of a violent nature. The term is narrower than the phrase “military operation”, which may consist of one or more attacks, or none at all.

  5. “Attack”, as defined in Rule 1 (e), does not include intelligence gathering, propaganda, or any other military activities which do not result (or were intended, see the following paragraph) in death, injury, damage or destruction of persons or objects.

  6. The term “attack” includes both operations that actually result in violent effects, and those which were intended to but failed. For instance, an aircraft which intends to bomb a target but is unsuccessful because its weapon system fails to release due to mechanical failure, has nevertheless conducted an attack. Similarly, enemy defences may effectively foil an attack and therefore an attack may not be completed; an incomplete attack, still counts as an attack.

  7. The definition of “attacks” also covers “non-kinetic” attacks (i.e. attacks that do not involve the physical transfer of energy, such as certain CNAs; see Rule 1(m)) that result in death, injury, damage or destruction of persons or objects. Admittedly, whether “non-kinetic” operations rise to the level of an “attack” in the context of the law of international armed conflict is a controversial issue. There was agreement among the Group of Experts that the term “attack” does not encompass CNAs that result in an inconvenience (such as temporary denial of internet access).

    1. Art. 49 (1) of AP/I: “‘Attacks’ means acts of violence against the adversary, whether in offence or in defence.”

    2. Art. 51 of the UN Charter: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.” See also D of the Introduction as regards the exclusion of jus ad bellum issues from the scope of this Manual.

Categories: Section A: Definitions