Valor's Vices: Against a State Duty to Risk Forces in Armed Conflict

COUNTERINSURGENCY LAW: NEW DIRECTIONS IN ASYMMETRIC WARFARE, William Banks ed., Oxford Univ. Press, 2013

Roger Williams Univ. Legal Studies Paper No. 116

27 Pages Posted: 22 Feb 2012 Last revised: 30 Sep 2015

See all articles by Peter Margulies

Peter Margulies

Roger Williams University School of Law

Date Written: February 21, 2012

Abstract

This paper questions the claim that armed forces have a categorical duty to risk themselves to protect civilians. Wary of air power that limits risk to an attacking state’s own forces, the great political philosopher Michael Walzer and others have criticized NATO’s Kosovo campaign in 1999 and Israel’s 2008-09 Gaza incursion. While international humanitarian law (IHL) already bars the targeting of civilians and requires proportionality between collateral harm and a military goal, champions of the duty to risk assert that more is required.

Although champions of the duty to risk deploy the rhetoric of valor to justify this new obligation, that rhetoric masks questionable judgment and skewed signals. The duty to risk is a myopic approach that would discourage technological innovation and precautions such as warnings. It would also subject commanders to a withering hindsight bias, in essence imposing strict liability on states for civilian casualties. Finally, the duty to risk sends perverse signals in conflicts between states and violent non-state actors like terrorist groups, encouraging non-state groups to intermingle civilian and belligerent operations in order to hamstring state responses. This flawed signaling puts even more civilians at risk.

Lowering civilian casualties calls for a structural approach that enhances deliberation about targeting decisions by military lawyers and senior officials. A state would also have to use the most precise weaponry that is practically available, and use the least amount of force required to disable dual-use targets such as power plants where civilian casualties are likely. Finally, a state would have an ethical obligation to cooperate with international investigations. These measures may not produce more heroes, but they promise to save more civilians.

Suggested Citation

Margulies, Peter, Valor's Vices: Against a State Duty to Risk Forces in Armed Conflict (February 21, 2012). COUNTERINSURGENCY LAW: NEW DIRECTIONS IN ASYMMETRIC WARFARE, William Banks ed., Oxford Univ. Press, 2013, Roger Williams Univ. Legal Studies Paper No. 116, Available at SSRN: https://ssrn.com/abstract=2008831

Peter Margulies (Contact Author)

Roger Williams University School of Law ( email )

10 Metacom Avenue
Bristol, RI 02809
United States

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