Academic journal article Vanderbilt Journal of Transnational Law

Humanitarian Regulation of Hostilities: The Decisive Element of Context

Academic journal article Vanderbilt Journal of Transnational Law

Humanitarian Regulation of Hostilities: The Decisive Element of Context

Article excerpt

TABLE OF CONTENTS    I.   INTRODUCTION                                      763  II.   REASONABLENESS AS A CONTEXTUAL CONCEPT            768 III.   COMBINED ARMS OPERATIONS AND THE NATURE           772        OF DECENTRALIZED ATTACK DECISIONS  IV.   CLOSE COMBAT IN URBAN AREAS AND THE ROLE          777        OF FIRE SUPPORT   V.   CONCLUSION                                        784 

I. INTRODUCTION

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. (1) 

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. (2)

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. (3) Ultimately, LOAC implementation will always be enhanced when the rules align with military logic (4) 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 interests (5) 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. (7) Unlike many other humanitarian-oriented LOAC rules, such as rules related to the protection of the wounded and sick, (8) military medical facilities, (9) or prisoners of war, (10) 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, (11) requires a prima facie judgment 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. (12) 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" (13) based primarily--if not exclusively--on the infliction of civilian casualties and destruction of civilian property. …

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