Uncertainty in the Law of Targeting: Towards a Cognitive Framework

Abstract

his article offers a cognitive framework for thinking about the confluence of uncertainty and the IHL rules governing targeting. In abstract discussions, the tendency has been to understand the requisite level of certainty for engaging a target as a particular threshold, that is, as “certain enough” to satisfy the requirement to confirm a target as a military objective, qualify harm as collateral damage or military advantage that must be factored into the proportionality calculation, or require the taking of feasible precautions in attack to minimize harm to civilians and civilian objects. In our view, this approach neither reflects targeting practice, nor adequately operationalizes the balance between humanitarian considerations and military necessity that all “conduct of hostilities” rules must reflect. We suggest that the issue is more nuanced, that dealing with uncertainty involves a multifaceted situational assessment when planning, approving or executing attacks. The article is our attempt to widen the aperture of discussion about battlefield ambiguity and doubt. To do so, we consider target confirmation, proportionality and precautions in attack, offering a way to think about uncertainty with respect to each. Our approaches to uncertainty are represented in the form of mathematical formulae. We have employed this mechanism to better capture the connected and interdependent relationship of the variables that are at play in a targeting decision, for targeting is a dynamic process characterized by situation-specific decisionmaking. The formulae should not be viewed as an attempt to reduce targeting decisions to mechanical deterministic calculations. The goal is to spark discussion about how to consider the uncertainty that infuses many targeting operations in a way that reflects the reality of and practice on, the battlefield; we do not hope to definitively settle the matter.