Targeting, command judgment, and a proposed quantum of information component : a fourth amendment lesson in contextual reasonableness
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Brooklyn law review, Vol. 77, issue 2, Winter 2012, p. 437-498 : tabl.
Geoffrey S. Corn
The principle of distinction requires belligerents to constantly distinguish between lawful objects of attack and all other persons, places, and things. While the principle of distinction is a manifestation of the balance between military necessity and humanity, it is also an expression of perhaps an even more central tenet of the Law of Armed Conflict (LOAC) : the assumption that the only legitimate object of war is to weaken enemy forces. Accordingly, the legal regulation of targeting is based on a conclusive presumption that the deliberate infliction of death or destruction to civilians or civilian property will never contribute to this objective, thereby obligating belligerents to limit their destructive efforts to military objectives only. The framework for determining what is and is not a lawful target of attack is known as the military objective test. This article proposes a quantum of information framework to facilitate the effective implementation of the military objective test. In support of this proposal, the article will provide a comparative analysis of United States constitutional Fourth Amendment jurisprudence, focused specifically on the relationship between several distinct quantum of proof standards for assessing reasonableness and the interests they were developed to balance. Part I of this article addresses the relationship between the LOAC and the military targeting process. Part II discusses the concept of reasonableness as it relates to that process and to U.S. criminal search and seizure law. Part III outlines the contextual reasonableness equation, which is based on the proportional relationship between the nature of the intrusion on a protected interest and the quantum of information required to render that intrusion reasonable. Parts IV and V propose a framework for application to the military targeting process, and then the article concludes.