Upholding humanity: The role of redress in preventing and responding to civilian harm

Abstract International humanitarian law (IHL) has been under immense pressure in the past few years. Despite IHL being created to mitigate suffering in armed conflicts, in recent years it has been leveraged by some as a means of justifying violence against civilians under the guise of proportionate incidental loss. With IHL lacking organic international accountability mechanisms, some States have “gamed” the rules of this body of law, resulting in military operations causing the deaths of tens of thousands of civilians that are defended as legally justifiable. Such arguments are a far cry from the original founding impetus of IHL, based on Dunant’s idea of humanity as “a kind of energy which gives one a positive craving to relieve as many as one can”. In this article, we argue that to re-emphasize humanity, it might be necessary to focus on other means of accounting for civilian harm, whether it is lawful or unlawful. Traditionally, criminal prosecutions have punished grave breaches of IHL or war crimes, neglecting the place of redress. Other bodies of international law, such as international human rights law, have expanded litigation possibilities for individual civilian harm in armed conflict at both the domestic and international level. Many of these cases have helped shape the key components of human rights law and have provided a strong incentive for States to ensure rights, protect victims and prevent future violations. Yet lawful civilian harm, where States find that incidental civilian loss is not excessive in relation to the military advantage gained, may provide no legal avenue to a claim of a violation of IHL or human rights law. If IHL is considered from a civil (delict/tort) litigation and operational perspective, it can better recognize the agency of civilians and can be an avenue to respond to their harm and mitigate its repetition in military operations. It can also bolster the precautionary principle of militaries taking “constant care” to spare the civilian population from the ravages of armed conflict. This can be seen in the US and Dutch militaries adopting civilian harm mitigation and response (CHMR) action plans that go beyond IHL compliance and see civilian harm as also a moral and strategic concern. The increasing use of both civil litigation and operational CHMR is, we argue, representative of an increasing trend to uphold humanity in line with the spirit and purpose of IHL. We outline how this can be embedded in the operationalization of the principle of precaution and the duty of constant care as an obligation of due diligence to redress civilian harm, whether lawful or unlawful, as a basic tenet of humanity in war.