Abstract

http://ssrn.com/abstract=2215088
 


 



Targeting and the Concept of Intent


Jens David Ohlin


Cornell University - School of Law

February 11, 2013

Michigan Journal of International Law, Forthcoming
Cornell Legal Studies Research Paper No. 13-89

Abstract:     
International law generally prohibits military forces from intentionally targeting civilians; this is the principle of distinction. In contrast, unintended collateral damage is permissible unless the anticipated civilian deaths outweigh the expected military advantage of the strike; this is the principle of proportionality. These cardinal targeting rules of international humanitarian law are generally assumed by military lawyers to be relatively well settled. However, recent international tribunals applying this law in a string of little-noticed decisions have completely upended this understanding. Armed with criminal law principles from their own domestic systems, often civil law jurisdictions, prosecutors, judges and even scholars have progressively redefined what it means to “intentionally” target a civilian population. In particular, these accounts rely on the civil law notion of dolus eventualis, a mental state akin to common law recklessness that differs in at least one crucial respect: it classifies risk-taking behavior as a species of intent.

This problem represents a clash of legal cultures. International lawyers trained in civil law jurisdictions are nonplussed by this development, while the Anglo-American literature on targeting has all-but-ignored this conflict. But when told of these decisions, U.S. military lawyers view this “reinterpretation” of intent as conflating the principles of distinction and proportionality. If a military commander anticipates that attacking a building may result in civilian casualties, why bother analyzing whether the collateral damage is proportional? Under the dolus eventualis view, the commander is already guilty of violating the principle of distinction. The following Article voices skepticism about this vanguard application of dolus eventualis to the law of targeting, in particular by noting that dolus eventualis was excluded by the framers of the Rome Statute and was nowhere considered by negotiators of Additional Protocol I of the Geneva Convention. Finally and most importantly, a dolus eventualis-inspired law of targeting undermines the Doctrine of Double Effect, the principle of moral theology on which the collateral damage rule rests. At stake is nothing less than the moral and legal distinction between terrorists who deliberately kill civilians and lawful combatants who foresee collateral damage.

Number of Pages in PDF File: 56

Keywords: IHL, targeting, intent, recklessness, dolus eventualis, knowledge, Doctrine of Double Effect

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Date posted: February 12, 2013 ; Last revised: September 6, 2013

Suggested Citation

Ohlin, Jens David, Targeting and the Concept of Intent (February 11, 2013). Michigan Journal of International Law, Forthcoming; Cornell Legal Studies Research Paper No. 13-89. Available at SSRN: http://ssrn.com/abstract=2215088 or http://dx.doi.org/10.2139/ssrn.2215088

Contact Information

Jens David Ohlin (Contact Author)
Cornell University - School of Law ( email )
218 Myron Taylor Hall
Ithaca, NY 14853-4901
United States
(607) 255-0479 (Phone)
(607) 255-7193 (Fax)
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