Harford, Charlotte Anstice
(2006)
The implementation and enforcement of the obligation under the international law of armed conflict to take precautions in attack (1980-2005).
PhD thesis, London School of Economics and Political Science.
Abstract
Existing international legal literature recognizes that parties to armed conflicts and individual combatants are legally required not only to refrain from deliberately attacking non-combatants and civilian objects, but also to take care to ensure (to the extent feasible) that such persons are not killed or injured, and such objects not destroyed or damaged, by accident or incidentally during military operations. This thesis looks at the practical application of this latter principle during a twenty-five year period following the entry into force of Protocol I Additional to the Geneva Conventions of 1949. It contends that although the rules in this area are not easily susceptible to judicial enforcement, they are nevertheless sufficiently flexible and realistic to be capable of effective implementation without detriment to military effectiveness. Examination of the practice of parties to various conflicts during the period under review suggests that if and to the extent that belligerents are ready to devote time and resources to training, leadership, internal accountability procedures, and to the provision of appropriate military equipment, they can, so long as they are not too impatient for quick results, comply with the Protocol I rules on precaution in attack without the need for combatants to take unreasonable risks for the sake of enemy non-combatants. Efforts to enforce the law externally have, however, met with mixed results, revealing more about the selectivity of international justice than about its effectiveness as a tool for ensuring fair treatment for victims and alleged violators of the rules on precautions in attack. The most potentially effective form of enforcement of these rules appears set to remain, for the time being at least, the influence over belligerents which some third party states and other international actors retain, but are perhaps sometimes hesitant to exercise in the interests of promoting respect for the law of armed conflict.
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