Force Protection and Constant Care in the Laws of War
If much of the content of International Humanitarian Law can be explained as the outcome of a “balance” between military necessity and moral limitation, then force protection and the constant care owed to civilians appear to be one embodiment of this tension. On the one hand, in a much-quoted passage from the judgement in The Hostages Case by the American Military Tribunal it is said: “Military necessity permits a belligerent, subject to the laws of war, to apply any amount and kind of force to compel the complete submission of the enemy with the least possible expenditure of time, life, and money ....” [emphasis added] This permission for the minimization of force losses is echoed in the NATO definition of military necessity as “... at the earliest possible moment with the minimum expenditure of life and resources”. On the other hand, the “constant care ... to spare the civilian population, civilians and civilian objects” [1977 Geneva Protocol I, Art. 57(1)] includes the requirement that “when a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects” [Art. 57(3)]. This requires, at least in the choice of military objective, the minimization of civilian losses; and Art. 57(2)(a)(ii) requires the same minimization of civilian losses in the choice of means and methods. When two considerations must be traded-off against each other, it is logically impossible to minimize both of them. So, what shall we make of these dueling minimizations, one a permission (force protection) - the NATO definition seems to have transmuted the customary permission into a right - and one a requirement (civilian protection)? It is of course possible first to minimize either civilian losses or force losses, and then, conditional on that primary minimization, minimize the other as much as still remains possible. If one of the two minimization requirements is to receive priority, which should it be? Does the incontestable fact that military necessity is always “subject to the laws of war” mean that the civilian protection explicitly required by Art. 57 receives priority? If neither the forces nor the civilians were to receive priority, and their protection were instead to be “balanced”, how should what Waldron has shown is at best an opaque metaphor, be worked out? Would attempting to “balance” two competing minimizations even make sense?