Humanitarian Regulation of Hostilities: The Decisive Element of Context

Abstract

Reasonableness is the touchstone of compliance with international legal obligations that define the legality of attacks during armed conflict. Whether it is the selection of a potential target, the assessment of the feasibility of precautionary measures, or the assessment of proportional civilian risk, virtually all experts agree that the standard of compliance with the law of armed conflict (LOAC) is that of the hypothetical ‘reasonable commander’ in the same or similar circumstances. This axiom of LOAC targeting law indicates that reasonableness is by its very nature context dependent: what may be reasonable in one context may be completely unreasonable in another. Preserving the fundamental logic of conduct of hostilities rules therefore requires a constant emphasis on the relationship between context and reasonableness. Nothing could be more corrosive to the logic of reasonableness than the continued gravitation towards “effects-based condemnations” based primarily — if not exclusively — on the infliction of civilian casualties and destruction of civilian property. Such an approach penalizes commanders whose good-faith efforts to implement civilian risk mitigation measures fail to produce the desired outcome; rewards commanders who disregard civilian protection legal obligations yet produce outcomes that fortunately do not manifest themselves in actual civilian harm; incentivizes enemy efforts to expose civilians to the risks of combat and thereby increase the probability that friendly civilian risk mitigation efforts will have minimal effect; and undermines respect for the law by those entrusted with its implementation by creating an unrealistic “zero-civilian casualty” expectation. Unless the commander is judged based on the information reasonably available when the attack decision was made, the law will be perceived as imposing a strict liability standard; a standard that is attenuated from the reality of warfare and therefore unrealistic and unattainable. This article will address these risks, and explain why operational context must provide the essential foundation for assessments of LOAC compliance.

Keywords: International Humanitarian Law, Law of Armed Conflict, Law of War, Targeting, Civilian Protection, Military Objective, Proportionality, Precautionary Measures, War Crimes

JEL Classification: K19, K33