Incidentality of the civilian harm in international humanitarian law and its <i>Contra Legem</i> antonyms in recent discourses on the laws of war
Bibliographic record
Abstract
Abstract This article develops an interpretative effort to clarify the meaning of the notion of incidentality of the civilian harm in international humanitarian law (IHL), with particular concern to the role of this concept as normative cornerstone for a systematic reading, and coherent implementation, of the law of targeting. The article begins with a critical analysis of recent discourses on the laws of war, focusing on the emergence and growth of contra legem uses of the concept of ‘collateral damage’. These discourses revolve around proportionality in attacks, commonly re-translating this rule by removing incidentality as legal qualifier of the civilian harm susceptible of proportionality assessments. The article shows that proportionality misconceptions neglecting incidentality have become so common and accepted as to be often confused with structural features of IHL. On the contrary, the analysis highlights the collisions between these conceptions, on the one hand, and IHL targeting prescriptions, their interplay and protective functions, on the other, unveiling how the former result in promoting unlimited expansions of the entity of civilian harm that can be object of proportionality assessments, even when this civilian harm constitutes the largely preponderant, main anticipated result of a given attack. Within a background of unequal relativization of international humanitarian law (IHL) parameters, minimalist understandings of incidentality have also been the basis of questionable orientations about attacks on residential tower buildings, reproducing exponential ‘militarizations’ of civilian objects (and at times of the protected persons therein) for proximity with lawful targets. Cumulatively, these discourses and scholarly orientations contributing to depriving proportionality of its incidentality requirement continue to produce dramatic consequences for civilian protection worldwide and provide aggressive military powers with arguments functional to circumvent the prohibitions of disproportionate and indiscriminate attacks. Against these tendencies, it is proposed that the notion of incidentality of the civilian harm, in homage to letter, object, and protective purpose of IHL, and understood with the interpretative help of mens rea categories, should be strictly construed and urgently re-centralized by laws of war scholars as a fundamental conditio sine qua non for proportionality assessments and as main dividing line between the operative spheres of distinction and proportionality.
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How this classification was reachedexpand
Full frame distilled prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. Learned from the 10,348 direct Codex labels and 10,348 direct Gemma labels. Candidate is the union of thresholded teacher heads; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels or direct frontier model labels.
Codex and Gemma teacher scores by category
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.001 | 0.000 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.000 | 0.000 |
| Bibliometrics | 0.000 | 0.000 |
| Science and technology studies | 0.000 | 0.000 |
| Scholarly communication | 0.000 | 0.000 |
| Open science | 0.000 | 0.000 |
| Research integrity | 0.000 | 0.000 |
| Insufficient payload (model declined to judge) | 0.000 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one teacher head, not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".