Do attackers have a legal duty of care? Limits to the ‘individualization of war’

Abstract

AbstractDoes International Humanitarian Law (IHL) impose a duty of care on the attacker? From a moral point of view, should it? This article argues that the legal situation is contestable, and the moral value of a legal duty of care in attack is ambivalent. This is because a duty of care is both a condition for and an obstacle to the ‘individualization of war’. The individualization of war denotes an observable multi-dimensional norm shift in international relations. Norms for the regulation of war that focus on the interests, rights, and duties of the individual have gained in importance compared to those that focus on the interests, rights, and duties of the state. As the individual, not the state, is the ultimate locus of moral value, this norm shift in international relations, and the corresponding developments in international law, are morally desirable. When it comes to IHL, the goal of protecting the interests of the individual creates strong reasons both for and against imposing a legal duty of care on the attacker. The enquiry into whether IHL does and should impose a legal duty of care therefore reveals that the extent to which war can be individualized is limited.