Humanitarian Regulation of Hostiles: The Decisive Element of Context

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

Regulating Hostilities in Non-International Armed Conflicts: Thoughts on Bridging the Divide between the Tadić Aspiration and Conflict Realities

International Humanitarian Law (IHL) evolved to strike a rational balance between the necessity of using combat power to defeat enemy opponents, and the humanitarian interest of mitigating the human suffering resulting from armed conflict. Ironically, however, the “type” of conflict most comprehensively regulated by this law—international or inter-State (IACs)—is not the “type” of armed conflict that has been most notable for producing humanitarian suffering since the end of World War II. Instead, non-international armed conflicts (NIACs)—conflicts between States and organized non-State belligerent groups, or even between multiple non-State belligerent groups—have been notorious for their brutality, indifference towards humanitarian restraint, and infliction of human suffering. Unfortunately, international humanitarian law has struggled to effectively regulate these conflicts, in large measure because it is a body of law that treated these all too common conflicts as a secondary focus. Perhaps the most significant response to this delta between the reality of NIACs and the lack of comprehensive legal regulation has been the “migration” or “extension” of IAC rules and principles to the realm of NIACs. This has been most notable in relation to the regulation of lethal combat power, resulting in rules that apply today across the spectrum of conflict. Still, the world continues to witness NIACs where this migration appears to produce negligible positive effect. The conflict in Ukraine provides the most recent, but by no means unique, example of the delta between the aspiration of more effective NIAC regulation and the reality of NIAC brutality. This article focuses on the challenge of how to improve the efficacy of IHL in the NIAC domain. First, it considers how strategic interests in NIACs are problematically weighted against humanitarian restraint. Second, proposes several approaches that may contribute to more effective NIAC regulation that build on existing law and regulation. Finally, it argues that more must be done to align the nature of IHL regulation with the reality of NIACs. Ultimately, with war an inevitable aspect of human relations, all too unpredictable in its permutations, but tragically all too predictable in its brutality, striving for such advances is as important today as it has ever been

War, Law, and the Oft Overlooked Value of Process as a Precautionary Measure

Never in recent memory has the relationship between law and war been so central to strategic legitimacy. This has resulted in both positive evolutions of the law of armed conflict (LOAC) and a remarkable increase in interest, understanding, and analysis of this law. No state, or even non-state group, is immune from the increasingly informed critique of its planning and execution of military operations and the quite proper demand that its military personnel comply with LOAC obligations. Central to the regulation of hostilities are the core LOAC principles of distinction and discrimination. Distinction mandates restricting deliberate attack to only those persons, places, and things that qualify as lawful military objectives pursuant to conventional and customary international law. Discrimination imposes an additional obligation to forego engaging in such an attack whenever the incidental and collateral effects will be indiscriminate, and thereby unjustifiably endanger the civilian population. While Article 51 of Additional Protocol I establishes a three-part definition of indiscriminate for purposes of implementing the discrimination obligation, an “excessive” impact on civilians and civilian property—the so called proportionality rule—is a definitive standard for compliance with the discrimination obligation and is central to debates on the legality of employing lethal combat power during contemporary armed conflicts. This Article will explain why the precautions obligation should be universally embraced as a core LOAC principle, analogous in significance to those of distinction and discrimination. To support this assertion, this Article will explain the relationship of precautions to both the targeting process and the implementation of those fundamental substantive LOAC principles. This Article will ultimately propose that the true scope of the precautions obligation in the targeting process imposes a more comprehensive obligation than the measure included in Article 57, which is linked to this Article’s ultimate argument: precautions provide the critical link between the planning and execution of combat operations and compliance with the LOAC’s most fundamental targeting regulatory norms, distinction and discrimination