Dead Letter Law Arising from Strategic Choices: The Difficulty of Achieving Accountability for the Jus in Bello Rules on Proportionality and Precautions in Attack

Abstract

The jus in bello proportionality rule establishes an upper boundary on how much collateral damage combatants can cause whilst striking a lawful target and its associated rule on precautions in attack compels them to take all feasible measures to properly understand the situation on the ground and to mitigate civilian harm. Proportionality and precautions in attack have been codified in API for over forty years, but in that time, it has been difficult to hold troops and their leaders accountable for breaches of these rules. In this study, I examine several reasons for why these rules have been difficult to apply ex post by considering the strategic motivations of state officials and prosecutors. Specifically, I propose a game-theoretic model which describes the decisions that state officials and prosecutors have historically made, and I explore what changes to this model would prompt these actors to behave differently. The model was developed using insights gained from legal case studies, archival research and a series of interviews with relevant actors. It suggests, inter alia, that to induce state officials to support a stricter liability standard for unlawful attacks, they must either ascribe much more value to legitimacy than to the success of future military operations, or they must perceive the success of future military operations to be unaffected by the possibility of losing criminal or civil adjudication. State officials may perceive losing a civil case based on state liability as being less likely to affect the success of future military operations compared with criminal liability against individual troops. Therefore, state officials may be inclined to support a stricter civil liability standard, if they believed it would help the state to secure greater legitimacy.