Indiscriminate Attacks and the Past, Present, and Future of the Rules/Standards and Objective/Subjective Debates in International Humanitarian Law
Civil society, the United Nations, and others are subjecting the conduct of hostilities to increasing scrutiny. But they often lack access to internal targeting data and therefore frequently render legal judgments based on the effects of attacks or assertions that particular weapons or methods of combat are inherently unlawful. This Article analyzes the historical development of key provisions of international humanitarian law (IHL) within the framework of two perennial legal debates—that between rules and standards and that between objective and subjective tests. It argues that while targeting provisions have generally reflected a balance between those two dyads, the jurisprudence of the international criminal tribunals has made IHL more “standard-like.” It further argues, however, that the contemporary desire for real-time moral and legal clarity is fueling a yearning for a more objective “rule-like” approach. This Article then uses the prohibition of indiscriminate attacks as a case study and offers specific recommendations for how we might adjust the way we think about that prohibition to respond to the current legal and political environment.