Author: Geoffrey S. Corn
PDF: Humanitarian Regulation of Hostilities: The Decisive Element of Context
War and human suffering have always been inextricably intertwined. In the past century, the bulk of that suffering has shifted from armed forces or other organized armed groups—those who engage in hostilities—to civilians. As a 2001 article titled People on War published by the International Committee of the Red Cross (ICRC) noted:
Modern wars have become conflicts without limits. Civilians have—both intentionally and by accident—been moved to center stage in the theater of war, which was once fought primarily on battlefields. This fundamental shift in the character of war is illustrated by a stark statistic: in World War I, nine soldiers were killed for every civilian life lost. In today’s wars, it is estimated that ten civilians die for every soldier or fighter killed in battle.
While statistics vary among studies, there is no question that beginning with World War II, the ratio of civilian to military casualties in war has steadily increased. Many experts believe that today 90 percent of casualties are civilian.
It is therefore unsurprising, as well as critically important, that international legal experts continue to focus on how international humanitarian law, or the law of armed conflict (LOAC), can best be implemented and, in some cases, developed to mitigate the risks civilians confront during war. However, it is equally critical that these efforts are undertaken with a genuine appreciation for the balance between military necessity and humanitarian constraints that lies at the core of LOAC conflict regulation. The credibility and efficacy of efforts to enhance civilian protections depend on such an appreciation. Ultimately, LOAC implementation will always be enhanced when the rules align with military logic and will be stressed when combatants perceive the rules as attenuated from the realities of the missions they must execute.
Successful LOAC implementation requires more than a general recognition that military operational interests5 must play a role in defining what is and is not permissible civilian risk during hostilities.6 Instead, what is required is an understanding of the relationship between the nature of military operations and the concept of reasonableness—the common touchstone of compliance with almost all LOAC targeting rules. Unlike many other humanitarian-oriented LOAC rules, such as rules related to the protection of the wounded and sick, military medical facilities, or prisoners of war, conduct of hostilities rules rarely function in absolute terms. Thus, unlike the absolute prohibition against directing attacks against the wounded and sick rendered hors de combat, most “targeting”-related civilian protection rules do not speak in absolutes. Instead, they require assessment of competing operational and humanitarian interests and a reasonable attack judgment based on balancing these interests. Even the most absolute of these rules, the distinction obligation, requires a prima faciejudgment of whether a person or object is or is not a military objective.
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.
One need only consider a commander whose substantial and good-faith efforts to mitigate civilian risk by complying with LOAC targeting obligations fails to produce her desired outcome. It is simply an unfortunate reality of war that such a delta between the intended and actual outcome of an attack is sometimes unavoidable. Condemning such a commander based on attack effects will inevitably risk diluting respect for the law. 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 may lead commanders to question the value of investing the time and effort required to comply with the law.
Nowhere are these risks of overlooking context in the assessment of reasonableness more prevalent than in the relation to the type of military operations falling within the general characterization of “combined arms maneuver.” These operations involve the employment of the full spectrum of combat capabilities—what US commanders call combined arms operations—to facilitate ground operational missions. These combined arms ground maneuver operations are usually conducted to “close with and destroy” enemy units and gain control of enemy territory, even if only temporarily. Ideally, such operations would occur in areas with little to no civilian presence—the classic “force on force” engagement. But that ideal is unrealistic today.
Today, isolated force-on-force battles are considered a relic of the past. Instead, armed forces must expect to conduct combined arms maneuver operations in and around civilians and civilian population centers. And this expectation is only increased when anticipating operations against enemies who see embedding their vital assets in densely populated areas as a force multiplier. This perception is based on not only the inherent tactical advantages of embedding assets among civilian population centers (such as ready access to logistics and lines of communication), but also their recognition that the complexity of conducting operations against these assets in a legally compliant manner will inhibit the efforts of their state opponents.
All of this points towards the importance of a more comprehensive understanding of targeting reasonableness—an understanding based on the tactical situation that frames attack decisions and the nature of the combat operation in which those decisions are made. This latter aspect of assessing attack reasonableness will be enhanced by considering not only whether an attack decision is deliberate or dynamic/time-sensitive but also the impact of the “mission-type” context of operations. As this Article will explain, because operations conducted pursuant to mission-type orders involve inherently decentralized attack decisions, the expectation of what is or is not reasonable is different than in the context of deliberate attack decisions. Because of this, those responsible for implementing LOAC obligations and assessing compliance with these obligations should lead to a prioritization of the rule of precautionary measures as the focal point for civilian risk mitigation.
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