SBE-UKRI: Cumulative Civilian Harm in War: Addressing the Hidden Human Toll of the Law's Blind Spot

Hundreds of thousands of civilians have died in wars in the Middle East in the first two decades of this century. Many were killed by states that rely on international law in their military operations, such as Israel, the United Kingdom (UK), and the United States. Excessive civilian harm can result from non-compliance with the laws of war. However, it can also stem from a blind spot in international law: law fails to account for cumulative civilian harm. This has two dimensions. First, international law prohibits disproportionate casualties for each individual attack, but fails to adequately account for the accumulation of civilian deaths across many attacks, over time. Second, international law does not sufficiently govern the aggregate and emergent effects of prolonged exposure to conflict on the civilian population. For instance, as attacks accumulate, repeated mental harm aggregates into personal and societal trauma. Repeated property damage erodes the socio-economic fabric of a society. Existing international law fails to adequately account for infrastructure collapse, trauma, or socio-economic decline.

This is the first project 1) to demonstrate that this dual blind spot in law exists, 2) to show how it hampers military and political decision-making, 3) to explain how it devastates civilian populations, and 4) to fix the problem by proposing a legal and policy framework for assessing and restricting cumulative civilian harm.

How does international law fail? The branch of international law known as jus ad bellum governs the initial resort to force between states. It is contested whether the law continues to apply once a war has begun, and the parameters for its application remain vague. Meanwhile, the branch of international law that regulates how wars are conducted, International Humanitarian Law (IHL), demands that the expected civilian harm that each attack causes is proportionate to its military advantage. Even if each attack complies with this rule, over time, the cumulative number of civilian deaths can reach intolerable levels. In addition to deaths caused, IHL focuses on how discrete attacks affect civilians in relation to injury and damage to property. The law does not adequately account for the effects of many different attacks taken together. Attacks that cause individually proportionate damage to civilian objects can together cause the collapse of vital infrastructure. Attacks that cause individually proportionate mental harm or physical injury together cause trauma and socio-economic decline.

In this research project, we lay out a path for the progressive development of international law to overcome this dual blind spot and better protect civilians in war. To accomplish this ambitious aim, we approach our task from several disciplinary angles: Based on a systematic review of sources, we develop a new legal approach to limiting cumulative civilian harm. Based on just war theory, we mount an ethical defence of why international law should restrict cumulative civilian harm. We work with military and political decision-makers in Israel, the UK, and the United States to ensure that our proposal is effective in guiding decisions. We conduct on-the-ground empirical research about the attitudes of civilians in Iraq and Gaza to ensure that our framework is responsive to the needs of the populations it is meant to protect. Finally, we survey public opinion in Israel, the UK, the United States to ensure that the proposed law resonates with the populations on whose behalf these militaries fight. Corresponding to these wide-ranging tasks, our research team includes distinguished legal scholars, prominent moral philosophers, former government and military lawyers and policymakers, and political scientists experienced in fieldwork in conflict zones.