Targeting mistakes and weapon malfunctions under international humanitarian law and international criminal law

Thesis

The thesis analyses the regulation of mistakes of fact and malfunctions in the targeting cycle under international humanitarian law and international criminal law. Mistakes in the identification of objects of attack, expected incidental civilian harm and weapon performance, together with weapon malfunctions, are frequent occurrences in armed conflict, which have led to extensive civilian harm. How civilians are protected from mistakes and malfunctions is, therefore, an inquiry of particular significance.

Since mistakes of fact and malfunctions are not justifications under international humanitarian law, circumstances precluding wrongfulness under the law of state responsibility, or defences of self-standing substantive content under international criminal law, determining the degree to which civilians are protected from such incidents depends on the interpretation of specific obligations binding parties to conflict and individuals.

In the thesis, the relevant obligations are examined by reference to two processes in the targeting cycle: the process dealing with the identification of objects of attack and the process concerned with the choice of means and methods of target engagement. The chapters analyse positive and negative obligations under international humanitarian law, and relevant conduct of hostilities war crimes under international criminal law. These obligations are then applied to documented cases of mistakes and malfunctions, as well as to hypotheticals from the area of emerging technologies and autonomous weapons.

The analysis reveals that international humanitarian law contains important and extensive protections from targeting mistakes and weapon malfunctions. It proscribes the launching of attacks in circumstances of doubt, objectively construed, regarding the status of persons and objects, prohibits the employment of inaccurate, unreliable and unpredictable weapons, and requires the taking of measures to mitigate the risks of information uncertainty. The scope of war crimes is narrower: only reckless mistakes are covered under customary international criminal law.

Authors: van Benthem, T

• DOI: 10.5287/ora-7erqe6doa
• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English
• Subjects: International criminal law; Humanitarian law