Lifting the 'Fog of Law': A Clarification of the Knowledge Standard during the Conduct of Hostilities under International Humanitarian Law

In recent years, investigative journalists and other experts have increasingly criticized the so-called ‘flawed’ (aerial) targeting practices of important militaries such as those of the US. More specifically, the critique relates to the alleged usage of insufficient, outdated, and poor quality intelligence when making targeting decisions, often resulting in the misidentification of targets and the underestimation of civilian harm. Such criticism, however, raises a fundamental question under the International Humanitarian Law (IHL) rules governing the conduct of hostilities (CoH), namely, where exactly the demarcating line lies between targeting mistakes that are unavoidable due to uncertainty that is inherent in times of armed conflict (the so-called ‘fog of war’) and unlawful attack judgments.

To draw this fundamental demarcating line, my PhD aims to address two interrelated questions that have remained largely unexplored and/or controversial in contemporary international legal scholarship: (1) What is the ‘knowledge standard’ under the rules of IHL on the CoH, i.e., what information (which types, amount, and quality) must militaries require when making targeting decisions in conformity with the law? (2) How must military decision-makers lawfully address uncertainty in the targeting context?

By clarifying these fundamental questions under IHL, this research project hopes to contribute to better targeting decision-making, to prevent avoidable thus unlawful civilian harm, and to facilitate inquiries in cases of alleged IHL violations.