War, Law, and Precautionary Measures: Broadening the Perspective of This Vital Risk Mitigation Principle
48 Pages Posted: 24 Aug 2014 Last revised: 10 Sep 2017
Date Written: August 22, 2014
Core principles of the law of armed conflict provide vital regulation to the conduct of hostilities, seeking to balance the necessity of employing lethal and highly destructive combat power with the humanitarian interest of mitigating the risk to civilians and the suffering they must endure as the result of hostilities. Precautionary measures play a vital role in this balancing of interests and accordant civilian risk mitigation. International legal and policy discourse has not, however, always elevated the concept of precautionary measures to the same status as the core substantive principles that define targeting legality: distinction and proportionality. This risks undervaluing the significance of precautions and an accordant distortion of the interrelationship between all of these humanitarian risk mitigation principles. This is because precautionary measures are indelibly linked with these core substantive principles, and understanding the symbiotic relationship between precautions and these principles will ultimately enhance the effective implementation of the law itself. This article argues that precautionary measures should collectively be considered a principle equal in stature and significance to distinction and proportionality. It also asserts the need to broaden the conception of precautionary measures to include all measures that enhance the likelihood of compliance with the law during combat operations and civilian risk mitigation when armed forces employ combat power. Thus, the 'precautions principle' should be understood to include not only the measures commonly associated with the concept of precautions in the attack (such as warnings, timing considerations, and weapons selection), but also the process of law implementation: preparing commanders, staff officers, and military lawyers to conduct combat operations in accordance with legal obligations, and the process of integrating legal compliance within the battle command framework. This expansive conception of precautionary measures will ideally produce an effort to identify 'best practices' for these oft overlooked aspects of civilian risk mitigation, and ideally lead to an overall enhancement in the implementation of humanitarian obligations.
Keywords: law of armed conflict, international humanitarian law, precautions in the attack, collateral damage, civilians in armed conflict, targeting, distinction, proportionality, battle command, military training, military legal advisors, targeting process
JEL Classification: K33, K40
Suggested Citation: Suggested Citation