DPH under API: preclude targeting VNSAs’ fighters until “moments immediately prior to an attack” and obligate states to absorb their attacks before responding
DPH under API: preclude targeting VNSAs’ fighters until “moments immediately prior to an attack” and obligate states to absorb their attacks before responding
DPH under IRCR Guidance: immunizes all but those in combat arms roles while ratifying the revolving door concept that partially immunizes all but the most senior Islamists, whereas members of state armed forces are continuously vulnerable to targeting
Ununiformed Islamists site command/control infrastructure in civilian areas to frustrate efforts to identify, target, and kill them, then execute military operations from the cover of hospitals, schools, and mosques
Ununiformed Islamists site command/control infrastructure in civilian areas to frustrate efforts to identify, target, and kill them, then execute military operations from the cover of hospitals, schools, and mosques
Islamists use human shields—forced and voluntary—in and around concentrations of Islamist fighters, rendering it near-certain that state military operations will, even when painstakingly conducted to mitigate casualties and distinguish civilians from combatants, kill and injure the former
convert civilian objects into military targets but publicize deaths at military targets to prove U.S. “iniquity”
CLOACA demands reinterpretation of distinction to impose higher legal obligations on attackers and more relaxed requirements on defenders: (1) when civilians are at military targets, must construe proportionality against states to create presumption that resulting civilian casualties from attacks on such targets are excessive and thus unlawful; (2) intermingled civilians with Islamist fights at an intended military target renders any use of force against it per se excessive in relation to anticipated military advantage and thus disproportionate and prohibited
states facing Islamists using human shields either (1) violate distinction (and perhaps proportionality), or (2) refrain from attacking
Most states and orgs choose (2): in 2007 NATO announced it “would not fire on positions if it knew there were civilians nearby[,]” and “[i]f there is the likelihood of even one civilian casualty, we will not strike[.]”
CLOACA’s proposed unilateral constraints encourage four related consequences: (1) Islamists use human shields as a defensive tactic, (2) fewer opportunities to target and kill Islamists present, (3) fewer still are seized, and (4) lawful attacks against Islamists kill civilians.
does not establish zero-tolerance or strict liability standard for civilian casualties, but requires that parties attacking military targets take “all reasonable precautions to avoid losses of civilian lives” and ensure that unintended civilian casualties are “not excessive in relation to the concrete and direct military advantage anticipated.”
does not establish zero-tolerance or strict liability standard for civilian casualties, but requires that parties attacking military targets take “all reasonable precautions to avoid losses of civilian lives” and ensure that unintended civilian casualties are “not excessive in relation to the concrete and direct military advantage anticipated.”
The greater the concrete and direct military advantage anticipated, the more civilian casualties proportionality tolerates: API art. 57(4), art. 51(5).
Rests on value judgments, intelligence, guesswork, assumptions, costs-benefits analysis
utilitarian interpretation of states: (1) military attack consistent with proportionality even if it causes foreseen but unintended noncombatant deaths so long as the military benefit of that attack exceeds the quantum of unintended harm it visits upon noncombatants; (2) the idea that some “collateral damage” is acceptable is a fixture in Western law and morality and rests upon the belief in a profound moral difference between intended and unintended but foreseeable consequences, (3) wilful, wanton, gross negligence required to prove disproportionality, (4) defender also has duties not to colocate military objectives within concentrations of civilians and civilian casualties do not prove disproportionality
CLOACA arguments: 1) states must provide extensive warnings to civilians near intended targets even at the cost of mission accomplishment (no international standard for warning), (2) some mathematical formula relating military and civilian casualties is dispositive of whether an attacker has violated proportionality (what about HVTs?), (3) absolute liability rather than specific intent or culpable negligence is the standard for determining criminal breaches, and (4) disproportionate attacks are evidence of the illegality of the resort to force in the first instance
CLOACA confers unilateral advantage upon Islamists, induces the West to make prophylactic decisions to adhere to more onerous standards than LOAC requires and to refrain from striking certain targets to guard against spurious allegations of disproportionality lodged against attacks that, had they transpired, would have been lawful notwithstanding that some civilians would have died.
Misrepresentation of LOAC as CLOACA would like it to be for LOAC as it currently disconnects LOAC from state practice
Misrepresentation of LOAC as CLOACA would like it to be for LOAC as it currently disconnects LOAC from state practice
CLOACA, bent on withdrawing LOAC from the reach of states, (1) insists that an ever-expanding body of principles they “restate” constitutes binding CIL directly applicable to the battlefield, (2) reinterprets existing CIL rules to create more restrictive definitions rather than cut new ones from whole cloth
