Outcome Bias and Expertise in Investigations under International Humanitarian Law

European Journal of International Law, Forthcoming

U of Melbourne Legal Studies Research Paper No. 862

33 Pages Posted: 26 Nov 2019 Last revised: 3 Dec 2019

See all articles by Tomer Broude

Tomer Broude

Hebrew University of Jerusalem - International Law Forum

Inbar Levy

Melbourne Law School

Date Written: November 13, 2019

Abstract

Many international law decisions are made by individuals, often possessed with expertise, legal or otherwise. We examine individual international humanitarian law (IHL) decision-making, on two-levels: military decisions made ex ante regarding real-time operational questions, under conditions of uncertainty and imperfect information; and subsequent ex post evaluations of the propriety of military decisions, in the context of military investigations regarding legal responsibility with respect to proportionality and reasonableness. IHL requires ex post investigators to consider only information available at the time decisions were made. Through an experimental vignette-study conducted with lay-persons, legal experts and people with field experience, we test whether they are susceptible to cognitive ‘outcome bias’, specifically the extent to which knowledge of operational outcomes, especially regarding incidental civilian harm, influences ex post normative evaluations. Our results demonstrate a general tendency towards outcome bias, somewhat tempered by expertise. Individuals with operational decision-making experience may be less prone to outcome bias than legal experts. We discuss possible implications for the design of military investigations relating to IHL.

Keywords: International Law, Psychology, Outcome Bias, Military Investigations

JEL Classification: K33, K40

Suggested Citation

Broude, Tomer and Levy, Inbar, Outcome Bias and Expertise in Investigations under International Humanitarian Law (November 13, 2019). European Journal of International Law, Forthcoming, U of Melbourne Legal Studies Research Paper No. 862, Available at SSRN: https://ssrn.com/abstract=3486616 or http://dx.doi.org/10.2139/ssrn.3486616

Tomer Broude

Hebrew University of Jerusalem - International Law Forum ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel

Inbar Levy (Contact Author)

Melbourne Law School ( email )

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