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Estreicher on Defender’s Duties in Armed Conflict

NYU Law Pro­fes­sor Samuel Estre­ich­er has post­ed an inter­est­ing work­ing paper on SSRN, titled Priv­i­leg­ing Asym­met­ric War­fare?: Defend­er Duties Under Inter­na­tion­al Law.  Here is the abstract:

Schol­ar­ship and advo­ca­cy needs to bring defend­er duties to the fore­front of any dis­cus­sion and inves­ti­ga­tion of armed con­flicts. The nec­es­sar­i­ly joint con­tri­bu­tion of attack­ers and defend­ers alike to civil­ian harm must be rec­og­nized. Any inves­ti­ga­tion of an armed con­flict must focus on the duties of both par­ties and eval­u­ate the fea­si­bil­i­ty of attack­er com­pli­ance with some of the more open-end­ed oblig­a­tions of inter­na­tion­al human­i­tar­i­an law (IHL), such as the so-called duty of pro­por­tion­al­i­ty, as a func­tion in part of the extent of defend­er com­pli­ance with its duties.

There are open areas in IHL. States that have acced­ed to Addi­tion­al Pro­to­col (AP) I are not nec­es­sar­i­ly bound by ICRC inter­pre­ta­tions and they and states that have declined to rat­i­fy AP I can play an active role in for­mu­lat­ing and urg­ing oth­ers to adopt rules of prac­tice that strike the right bal­ance between attack­er and defend­er duties. Even if, for exam­ple, there is wide­spread inter­na­tion­al recog­ni­tion that, at some abstract lev­el, the duty of pro­por­tion­al­i­ty is ground­ed in cus­tom­ary law, the con­tent of that duty is not nec­es­sar­i­ly iden­ti­cal to the word­ing con­tained in AP Arti­cle 57. The effec­tive­ness of such a duty, includ­ing the abil­i­ty of mil­i­tary com­man­ders to imple­ment it in the air and on the ground, may well depend on seri­ous con­sid­er­a­tion, elab­o­ra­tion and imple­men­ta­tion of defend­er duties, for defend­ers are often in the supe­ri­or posi­tion to min­i­mize civil­ian expo­sure to the dan­gers of mil­i­tary oper­a­tions.

Defend­er duties in armed con­flicts is a neglect­ed area of IHL. This needs to change if the over­all mis­sion of this body of law – min­i­miza­tion of harm to civil­ians – is to have any rea­son­able prospect of being real­ized.

Pro­fes­sor Estre­ich­er essen­tial­ly argues that the laws of war include cer­tain flex­i­ble terms, such as pro­por­tion­al­i­ty, “effec­tive warn­ing,” and the oblig­a­tion of attack­ers to “do every­thing fea­si­ble” to ver­i­fy the non-civil­ian nature of a tar­get.  What is “fea­si­ble,” Estre­ich­er argues, may be affect­ed by the fact that a defend­er is engag­ing in per­fidy or using human shields.  This frame­work will con­tribute to the devel­op­ment of a regime that com­man­ders feel they can actu­al­ly fol­low, thus gen­er­at­ing more com­pli­ance with the laws of war, result­ing in a high­er lev­el of pro­tec­tion for civil­ians.

The paper’s con­clu­sions are inter­est­ing, not least because they offer an inter­est­ing plat­form for polit­i­cal dis­course about the laws of war, but I car­ry some reser­va­tions.  If we begin to tell com­man­ders that they may con­sid­er an adversary’s vio­la­tions of IHL in their pro­por­tion­al­i­ty cal­cu­la­tions, are we in effect re-open­ing the door to bel­liger­ent reprisals against civil­ian pop­u­la­tions (a prac­tice fore­closed by API art. 51)?  My con­cern is that this frame­work will lead to an over­ly con­trac­tu­al inter­pre­ta­tion of the laws of armed con­flict, lead­ing in fact to greater casu­al­ties among pop­u­la­tions that (often unwill­ing­ly) play host to guer­ril­la forces.

My reac­tions, how­ev­er, are quite ten­ta­tive, and Estreicher’s work is a nov­el and use­ful con­tri­bu­tion to this debate.  Thanks to Inter­na­tion­al Law Reporter for the link.

I real­ize this blog has become rather IHL-heavy in the past weeks.  It’s a con­se­quence of the recent head­lines, of my par­tic­u­lar inter­ests, and of my refusal to use this space to crit­i­cize the offi­ci­at­ing at Friday’s U.S.-Slovenia match.  Please accept my assur­ances that oth­er posts are in the works, and do send any ideas to me (

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