Indiscriminate and Disproportionate Attacks in International Law

Luigi Daniele is Senior Lecturer in Law at Nottingham Law School, UK.

• Background: Inequality as Continuity between War and Law.1. Civilian Victimization in Armed Conflicts, in History and Theory.Introduction1.1 International Humanitarian Law as koinè, and its ‘dark sides’.1.2 Civilians in the Interstate Warfare of the Jus Publicum Europaeum.1.3 Civilian Resistance at the origins of the Civilians/Combatants legal dichotomy.1.4 Civilians at War, the Partisan, and the Problem of Guerrilla Warfare.1.5 Civilian Victimization in Contemporary Wars, an Aetiological Enquiry: Why Liberal Democracies Strike Non-combatants?2. Indiscriminate and Disproportionate Attacks in International Humanitarian Law2.1. The Fundamental IHL Prescriptions Governing Targeting Decisions, between ‘Military Necessity’ and ‘Humanity’.2.1.1 Distinction2.1.2 Proportionality2.1.3 Precautions.2.2 The IHL Prohibitions of Indiscriminate and Disproportionate Attacks under Additional Protocol I.2.3 Interplay of the Targeting Principles: in Search of Systematic Coherence2.4 Reframing the Distinction-Proportionality Nexus.2.4.1 Incidentality of the Civilian Harm as Systematic Cornerstone of the Law of Targeting.2.4.1.1 Incidentality Between Distinction and Proportionality2.4.1.2 Incidentality and Precautions.2.4.1.3 A Serious Misconception: ‘Balancing’ Incidentality with Military Advantage.2.4.1.4 Multi-component Objects, Pars Pro Toto Determinations of Military Objectives and the ‘Synecdoches’ Capsizing Incidentality.2.5 Recentralizing Incidentality of the Civilian Harm as Conditio Sine Qua Non for Proportionality Assessments.2.6 The Interpretative Auxilium of Mens Rea categories: Incidentality as Threefold Dividing Line Between Distinction and Proportionality.3. Indiscriminate and Disproportionate Attacks at the Origins of International Criminal Law: From Nuremberg to the ICTY3.1 Indiscriminate Warfare at the Origins of International Criminal Law.3.1.1 The Axis’ Indiscriminate, “Total War”: War crimes In Nuremberg3.1.2 Hiroshima, Nagasaki, and the Einsatzgruppen Case: at the Origins of Double Standards.3.1.3 Kelsen’s Privilegium Odiosum, and Radrbuch’s Verleugnungsformel: “Equality, The Core of Justice” 3.2 The ICTY Jurisprudence About Indiscriminate and Disproportionate Attacks as War Crimes.3.2.1 Overcoming the IACs / NIACs dichotomy.3.2.2 Indiscriminate and Disproportionate Attacks as Conduct Indicating the Intent of the Crime of Terror.3.2.3 Indiscriminate and Disproportionate Attacks as Conduct Indicating the Intent of Direct Attacks on Civilians.3.3 Critical Knots of the ICTY Jurisprudence.3.3.1 In Search of Objective Parameters Indicating the Indiscriminate Character of Attacks: the Circular Error Probable.3.3.2 The Gotovina Case ‘Scandal’: ‘End of Indiscriminate Attacks’?3.3.3. Indiscriminate and Disproportionate Attacks as Reckless Attacks on Civilians, and the Fragility of Case-by-Case Inferences: Back to Victor’s Justice?4. Indiscriminate and Disproportionate attacks in Contemporary War Crimes Law: Born to be Blunt?4.1 Indiscriminate and Disproportionate Attacks as Turning Points for the ICC at Thirty: Two Alternative Futures for the Court, and the World.4.2 Indiscriminate and Disproportionate Attacks in the Rome Statute of the ICC: in Search of Lost Enforcement.4.2.1 The War Crimes Regime of the Rome Statute: Structure of Article 8 and Common Elements.4.2.2 The Elements of the Crimes of Direct Attacks on Civilians and Civilian Objects4.2.3 Indiscriminate Attacks as Direct Attacks on Civilians and Civilian Objects? The ICC Jurisprudence.4.2.4. The Contradictory Elements of the Crime of (Clearly) Disproportionate Attacks: Perpetrators as “Judges in Their Own Cause”?4.2.5 Old Challenges and New Possibilities: Toward the First ICC Adjudication of Disproportionate Attacks.4.3 An ‘Unduly Expanded’ Legal Shield for the Military?4.3.1 The attack against the Kunduz Medicine Sans Frontiere Hospital: the Problem of Recklessness.4.3.2 Western Loopholes for Russian Crimes? Indiscriminate and Disproportionate Attacks in the War Against Ukraine.4.3.3 Gaza 2023-24: a Genocide by Means of Indiscriminate and Disproportionate Attacks?4.3.3.1 Pre-justifying indiscriminate and disproportionate attacks: entire populations of ‘human shields.’4.3.3.2 Indiscriminate and disproportionate attacks nipped in the bud: ‘every house’ a ‘military objective’.4.3.3.3 Rewriting IHL proportionality to accommodate the destruction of victim groups as ‘collateral’.4.4 Cassese's Prognosis Confirmed, and the Normalization of Indiscriminate andDisproportionate Attacks5. Bridging the Accountability Gap: Delivering Justice for Indiscriminate and Disproportionate Attacks.5.1 Jurisprudential Avenues for Ensuring Accountability, Lex Lata.5.1.1. Indiscriminate attacks as direct attacks on civilians: the missing piece of the puzzle.5.1.2. A long-overdue step forward: applicability of the oblique intent mens rea standard.5.1.3 The war crime of disproportionate attacks: achieving harmonization with IHL proprotionality.5.1.3.1 Distinguishing disproportionate and indiscriminate attacks under war crimes law: incidentality of the civilian harm.5.1.3.2 Indirect intent against the ‘monarchy’ of the military commander.5.2 The Limits of Interpretative Solutions: Racialized Hierarchies of Civilian Protection and Racialized Hierarchies of War Crimes Law Enforcement.5.3 An Agenda for the Assembly of the State Parties to the Rome Statute: Lex Ferenda Avenues for Restoring Accountability.5.3.1 Toward a new war crime offence of indiscriminate attacks5.3.2 Amending the war crime of disproportionate attacks5.3.3 Roxin on the future roles of criminal sciences.