There are several possibilities of violations of the laws of war that might fall under this category - violations of the principle of distinction, for example, or, under Protocol I standards (to which the US is not party and not all of which it regards as binding customary law), failure to warn or separate out the civilian population in advance of an attack, which invoke some notion of intentional or negligent wrong doing. Underlying these issues, as well as constituting a separate issue, is proportionality jus in bello - the question of whether the reasonably anticipated civilian harm is excessive in relation to the reasonably anticipated benefits of the attack.

As it happens, I am writing these days on the issue of proportionality, and so I am naturally deeply interested - and deeply skeptical. Violations of these kinds are frequently asserted by human rights groups, such as Human Rights Watch in its various Gaza and other reports. But in the post-war period, I am not aware (and once a couple of years ago was able to put a squad of highly paid law firm associates to the task of looking up stuff) of any case that specifically claimed, over the traditional "commander's battlefield discretion," even to prosecute a violation of proportionality as such, let alone a conviction for such a case. As international criminal lawyer Kevin Jon Heller remarked in an Opinio Juris post some months ago on a related question, although possible in theory, it seems pretty unlikely in practice.

To be clear, the kind of "disproportionality" at issue has, first, nothing to do with simple comparing numbers of casualties (e.g., number of Israelis killed in rocket attacks versus numbers of Palestianians killed in Gaza or Lebanon armed actions). These comparisons are often made in the press, sometimes in academic discussions, and elsewhere, but they do not go to the legal issue of proportionality jus in bello.

Second, moreover, the kind of disproportionality at issue here is not the question of "wanton destruction and disproportionate devastation not justified by military necessity." That second is a question of intentional wantonness or wanton and reckless negligence in which, in the extreme case, no effort was made even to determine whether the military action had a military necessity or how that measured up against civilian damage. The issue in the case of genuine inadvertence is where the commander did make an effort to weigh up likely consequences - and the prosecutor now proposes to second guess. There is a good reason why no one, so far as I know, has sought to prosecute the commander's good faith judgment after the fact.

It is, to say the least, remarkable to me that the ICC prosecutor would even consider such a thing now. The issue was raised following Kosovo, and the prosecutor there declined to go forward after a preliminary investigation. But a big part of the reason why the prosecutor declined to go forward was on account of the paucity of legal standards by which even to evaluate a claim of criminal action based upon a commander's good faith exercise of battlefield discretion. In other words, it was not merely a factual problem, it was a lack of legal standards on which to proceed with individual criminal liability. I fail to see what has changed that would convince the prosecutor that he has any better set of legal standards now.

In any case, I can imagine nearly no ICC issue on which a deeper wedge could be driven between the ICC and even the Obama administration. A good faith commander's judgment? One can, of course, try to redescribe the same facts as a failure to attempt to distinguish or a failure to warn - this is a standard legal analysis in, for example, HRW reports on Gaza addressing targeted killing, and presumably because, at least on the surface, the effect is to shift legal analysis from "weighing up" to "categorical" issues of intentionality. But that's not persuasive; these analyses under discrimination and distinction and duties to warn turn out, under pressure, to be just as much weighing up. Of course they would be, going directly to the same facts.

But all this winds up putting the Obama administration in the same position of having the ICC prosecutor "probing" the battlefield judgments made in good faith by US commanders. In one sense, I suppose, the politics of the situation are oddly easy for the administration's leading transnationalist lawyers - Harold Koh, Sarah Cleveland, others - because this can be seen as so far beyond what the US would regard as acceptable that it is easy for them to denounce this, while holding open possibilities on other issues such as extra-territorial application of the ICCPR or other things; it might provide a convenient route for transnationalist lawyers to establish sovereigntist bona fides. But maybe not. Maybe this amounts to just a repeat of what happened in the Kosovo probe, in which a probe was initiated and closed without any forward movement. Maybe that is what Ocampo is holding out for. I'm not very clever about the politics of these things. If there are knowledgeable commenters who have a sense of what is going on either in the US government, NATO, or the ICC prosecutor, I would be grateful to hear about it in the comments.

What I am clear about is that this question is the moral and legal argument of much modern war between a well armed state adversary and an insurgent, in reductio. The insurgent resorts to violations of categoricals, such as attacks directly aimed upon civilians, or the use of human shields, or other violations that are against categorical rules. The state and its army engage in attacks that raise questions, among the human rights monitors, the ICC prosecutor, and others, that the attacks were in some way, some sense or other, disproportionate. Not categorical violations, but claims of violations that involve, by their nature, legal judgments weighing up radically different things, civilian harm and military advantage. Moreover, the kinds of possible violations of the laws of war that can be contemplated here all raise issues entirely relevant to targeted killing via Predator - distinction, failure to warn civilians, excessive civilian harm, etc.

Readers of my academic work understand that I am no great fan of the ICC. Still, I cannot imagine that it can be in the ICC's legal or political interest to seek to cross that bridge as a matter of individual criminal liability; I equally understand that this trope is at the heart of contemporary conflict between states and non-state actors. (Cross posted in somewhat different form from Opinio Juris; I'll go back and try to add some more links later.)