In the Israel-Hamas conflict, Israel has acknowledged that its attacks caused civilian casualties but has defended conduct as lawful on the basis that such casualties were “unintentional”, “not deliberate”, or “undesired”. However, the qualifier “intentional” or its synonyms does not appear in the targeting rules relating to the protection of civilians from attack in Additional Protocol I to the Geneva Conventions, now widely accepted as customary international law. The qualifiers “wilfully” or “intentionally” are reserved for the criminal repression of grave breaches (war crimes) and other provisions of international criminal law. This chapter considers the relevant objective and subjective tests for identifying violations in the law of targeting, including where prohibited conduct includes a purpose element, implied by such terms as “object of attack” or “directing an attack”. Comparing the “reasonable military commander” standard and the concept of intention as understood under the criminal law, it argues that in relation to the Israel-Hamas conflict there has been a trend towards seeking to limit international humanitarian law protections by requiring criminal law tests for determining intention in relation to state responsibility for suspected violations. Such a shift has far-reaching implications across the law on targeting and threatens a significant erosion of civilian protection norms.

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Objective and Subjective Tests for Determining Violations of the Law of Targeting: The Unreasonable Commander and the Guilty Mind

  • Mark Lattimer

摘要

In the Israel-Hamas conflict, Israel has acknowledged that its attacks caused civilian casualties but has defended conduct as lawful on the basis that such casualties were “unintentional”, “not deliberate”, or “undesired”. However, the qualifier “intentional” or its synonyms does not appear in the targeting rules relating to the protection of civilians from attack in Additional Protocol I to the Geneva Conventions, now widely accepted as customary international law. The qualifiers “wilfully” or “intentionally” are reserved for the criminal repression of grave breaches (war crimes) and other provisions of international criminal law. This chapter considers the relevant objective and subjective tests for identifying violations in the law of targeting, including where prohibited conduct includes a purpose element, implied by such terms as “object of attack” or “directing an attack”. Comparing the “reasonable military commander” standard and the concept of intention as understood under the criminal law, it argues that in relation to the Israel-Hamas conflict there has been a trend towards seeking to limit international humanitarian law protections by requiring criminal law tests for determining intention in relation to state responsibility for suspected violations. Such a shift has far-reaching implications across the law on targeting and threatens a significant erosion of civilian protection norms.