Ohlin on Targeting and the Concept of Intent

by Kevin Jon Heller

My friend Jens Ohlin (Cornell) has just posted a very important article on SSRN entitled “Targeting and the Concept of Intent.”  Here is the abstract:

International law generally prohibits military forces from intentionally targeting civilians; this is the principle of distinction. In contrast, unintended collateral damage is permissible unless the anticipated civilian deaths outweigh the expected military advantage of the strike; this is the principle of proportionality. These cardinal targeting rules of international humanitarian law are generally assumed by military lawyers to be relatively well settled. However, recent international tribunals applying this law in a string of little-noticed decisions have completely upended this understanding. Armed with criminal law principles from their own domestic systems, often civil law jurisdictions, prosecutors, judges and even scholars have progressively redefined what it means to “intentionally” target a civilian population. In particular, these accounts rely on the civil law notion of dolus eventualis, a mental state akin to common law recklessness that differs in at least one crucial respect: it classifies risk-taking behavior as a species of intent.

This problem represents a clash of legal cultures. International lawyers trained in civil law jurisdictions are nonplussed by this development, while the Anglo-American literature on targeting has all-but-ignored this conflict. But when told of these decisions, U.S. military lawyers view this “reinterpretation” of intent as conflating the principles of distinction and proportionality. If a military commander anticipates that attacking a building may result in civilian casualties, why bother analyzing whether the collateral damage is proportional? Under the dolus eventualis view, the commander is already guilty of violating the principle of distinction. The following Article voices skepticism about this vanguard application of dolus eventualis to the law of targeting, in particular by noting that dolus eventualis was excluded by the framers of the Rome Statute and was nowhere considered by negotiators of Additional Protocol I of the Geneva Convention. Finally and most importantly, a dolus eventualis-inspired law of targeting undermines the Doctrine of Double Effect, the principle of moral theology on which the collateral damage rule rests. At stake is nothing less than the moral and legal distinction between terrorists who deliberately kill civilians and lawful combatants who foresee collateral damage.

I am completely in agreement with Jens concerning recklessness/dolus eventualis.  The more difficult issue, which the essay touches on, is whether knowledge/dolus indirectus qualifies as intent in the targeting context. I believe it does, for all the reasons I’ve previously discussed on Opinio Juris. (See here and here, for example.)  Jens is more agnostic, at least for now.

As Larry Solum would say, read Ohlin!

http://opiniojuris.org/2013/02/16/ohlin-on-targeting-and-the-concept-of-intent/

One Response

  1. I think much of the discussion here arises because of (background or ill-expressed) unease over the employment of the notion of proportionality and the wide berth it accords discretionary judgments that seem increasingly immune from moral and legal criticism (and the corresponding weakening of the principle of discrimination). As C.A.J. Coady writes, the notion of proportionality “is often a curious combination of the natural and theoretically opaque,” not unlike, we might notice, various conceptions of intentionality used in criminal law (which differ, often for good reasons, from their use in civil or private law, like the law of torts). Consider, for instance, the empirical fact (at least according to one source cited by Coady), that the ratio soldier to civilian casualties shifted in the course of the twentieth century from 9:1 to 1:9, owing in no small part to the technology that facilitated aerial bombing. Of course proponents of drone warfare will cites its advantages over previous forms of aerial bombing, and that may be true, but the baseline for comparison could be inappropriate. Proportionality judgments appear to be made in a self-serving vacuum, one of microscopic or unduly small scope and scale and without due consideration of the nature and context of the wider conflict, for instance, recognition of available alternative military and non-military means for accomplishing the same ends,* a situation further muddied by the use of common euphemisms as thinly disguised attempts to sanitize the nature of violence that results, hence: “collateral damage,” “surgical strikes,” and “re-visiting the area.” As to the use of the first, Coady writes that it “suggests both an excuse and a belittling. The excuse: The deaths and maimings are not really what we wanted to happen. The belittling: these sufferings and killings are a very small part of a big picture.” (Note: what is meant by the ‘big picture’ here is not identical to what I meant by the nature and context of the wider conflict.)

    Thus proportionality (and ‘necessity,” for that matter) judgments are now made in the context of incremental creep with regard to the scope of legitimate military targets and loose or implausible conceptions of military necessity, as with alleged “dual-purpose” facilities, or in the case of our Hamas leaders cited below (Coady further explains the moral problems associated with the former in his 2008 volume, Morality and Political Violence). I suspect an all-too-generous conception of what is morally entailed by the doctrine of double effect is part of the problem as well (I see Ohlin discusses this as well but I’ve yet to read the paper).

    If, with Larry May (in his 2007 book, War Crimes and Just War), we detect a common and more basic moral principle that undergirds and unites principles of discrimination, proportionality and necessity, such as “humane treatment,” (hence, ‘humanitarian law;’ for May, this entails normative notions of minimal suffering, mercy or compassion, and honor), I suspect our notions of intentionality in such cases will come closer to the relevance of both dolus indirectus and tort-like conceptions of (gross and culpable) negligence and recklessness (dolus eventualis).

    * Consider, by way of a concrete and egregious example, the targeted killing of Salah Mustafa Muhammad Shehade, who led the Izz ad-Din al-Qassam Brigades military wing of Hamas: “On 22 July 2002, the Israeli Defense Forces targeted the house in which Shahade was hiding using a one ton bomb dropped by a F-16 plane in a densely populated neighborhood of Gaza City. Fifteen people were killed, including Shahade, his wife and daughter; seven members of the Matar family who lived in the next house. Between 50 and 150 were injured as a result of the attack.Both Shehade’s and Matar’s houses were destroyed by the bomb, as were eight others in the vicinity; nine houses were partially destroyed, and 20 other houses moderately damaged. Israeli commanders claimed that they did not know there were innocent people in the building at the time and they would have called it off had they known.” Or, again, the killing of Hamas founder Sheikh Ahmed Ismail Hassan Yassin, who also served as a spiritual leader of the organization: “Yassin, a quadriplegic who was nearly blind, had used a wheelchair since a sporting accident at the age of 12. He was assassinated when an Israeli helicopter gunship fired a missile at him as he was being wheeled from early morning prayers. [….] [A]n Israeli AH-64 Apache helicopter gunship fired Hellfire missiles at Yassin and both of his bodyguards. Before the attack, Israeli F-16 jets flew overhead to obscure the noise of the approaching helicopters. Yassin always used the same direction every morning to go to the same mosque in the Sabra district that is 100m from his home. Yassin and his bodyguards were killed instantly, along with nine bystanders. Another 12 people were injured in the operation, including two of Yassin’s sons.” Was there no morally less costly way available to accomplish the military and security objective thought necessary here? Incidentally, I chose the above example because Ohlin begins his article with description of a case representative of the “November 2012 air war by Israeli forces against Hamas in the Gaza Strip.”
     
     

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