This is the second post in our joint symposium arising out of the publication of the Chatham House report, Proportionality in the Conduct of Hostilities: The Incidental Harm Side of the Assessment, Proportionality and Doubt, by Adil Haque. The full post is available now over on Just Security.
Here’s a snippet from Adil’s post:
The Report underscores the duty of commanders to do everything feasible to verify that proposed attacks will not violate the proportionality rule (see here, here, and here). This duty seems to imply that a commander who tries but fails to verify conformity with the proportionality rule must refrain from attack. Among other things, it would seem to weaken a commander’s incentives to do ‘everything feasible’ if her failure to verify were instead to be rewarded with freedom to attack.
This view also leads to results that are logical rather than unreasonable or absurd. Assume the following scenario:
Attackers verify that a building is a military objective. Attacking the building will almost certainly kill a number of people nearby.
Now consider two variations:
I) Attackers suspect that the people nearby are combatants, but remain in serious doubt. If the people nearby are civilians, then their expected deaths would be excessive in relation the military advantage anticipated.
II) Attackers verify that the persons nearby are civilian. However, their expected deaths would be neither clearly excessive nor clearly non-excessive in relation to the military advantage anticipated.
In variation I, attackers must presume that the people nearby are civilian (under API 50(1)) and therefore refrain from attack. To ignore their serious doubts and attack would seriously risk violating the proportionality rule. What about variation II? On the view we are exploring, attackers must again refrain from attack, for the same reason: to avoid serious risk of violating the proportionality rule