A Reply to Janina Dill: Common Ground

We firmly agree with Prof. Janina Dill that a broader societal understanding of civilian harm during wartime and how civilians view that harm is an important aspect of understanding the consequences of war, the impact of moral choices to go to war, and how the effect of war on civilians and other groups can affect legitimacy, strategic policy, and the idea of victory. To that end, we thank Prof. Dill for the extremely thoughtful and useful clarification of her research study, methodology, and goals in response to our earlier post about her survey on proportionality in combat. Based on her much more detailed explanation of methodology and objectives — which perhaps could be wrapped into the introduction to and framework of the surveys — the results of her research should indeed be useful for scholars and advocates, as well as for decision-makers in the civilian and military arena alike.

Towards that end, we want to clarify that we in no way believe, nor did we suggest, that only military experts should evaluate the rules and conduct of war, as many have interpreted our post to imply. The mere fact that one of our team of authors has never worn a uniform belies such an implication. More importantly, we certainly understand that international criminal tribunals, comprised of civilian judges, have and will undoubtedly continue to play an important role in the development of international criminal law and the imposition of accountability for violations of the law of armed conflict. The concern we raise lies in the use of public perceptions about proportionality to analyze or determine criminal accountability or compliance with the law of armed conflict more generally. In other words, if the decision to launch an attack is judged — for the purposes of criminal accountability — based on how the public perceives proportionality in a moral sense, the fundamental purposes and process of the principle of proportionality are distorted in significant and problematic ways. 

Interestingly, Prof. Dill’s post highlights a crucial distinction between perspectives in this discussion: between the understanding of proportionality as a touchstone for the broader societal and moral conceptions of legitimate action during conflict, and the principle of proportionality as one facet of assessing the legality and, in some cases, criminality under the law of armed conflict.

Stripping away complexities may indeed be an effective tool for isolating a particular moral dilemma, but it poses significant risks and distortions for a legal analysis of criminal responsibility. Prof. Dill’s analysis of how the legality of a specific attack must be assessed under the principle of proportionality does not differ from ours in any significant respect — rather, she is focusing her analysis on a different framework altogether. We certainly share her interest in understanding attitudes and perceptions in this broader societal and moral framework — and how these attitudes and perceptions will inform future strategic and normative conceptions. Based on her post, we are encouraged by our sense that she shares our belief that while this may be an important focus of inquiry, it is essential to ensure that a perception-driven approach does not replace — overtly or more subtly — the complex situational analysis that lies at the heart of all assessments of targeting legality and post hoc critiques of targeting judgments.

 

About the Author(s)

Laurie Blank

Clinical Professor of Law and Director of the International Humanitarian Law Clinic at Emory Law School

Geoffrey S. Corn

Presidential Research Professor of Law at South Texas College of Law, Lieutenant Colonel (Retired), U.S. Army. His Army career included service as the Army’s senior law of war expert advisor.

Eric Jensen

Professor at Brigham Young Law School, Special Counsel to the General Counsel of the Department of Defense, Former Chief of the Army’s International Law Branch, and Former Legal Advisor to US Military Forces in Iraq and Bosnia