Chapter

Valor's vices : against a state duty to risk forces in armed conflict

Peter Margulies

Counterinsurgence law : new directions in asymmetric warfare

Oxford [etc.] : Oxford University Press, 2013

p. 87-107

English

Suppose that state forces have entered an urban area effectively controlled by a terrorist group with a history of civilian attack and cross-border shelling. State forces have entered for the purpose of stopping these attacks. During this incursion, members of the non-state armed group have shot at state soldiers from within an apartment dwelling overlooking a key thoroughfare. The state has previously warned civilian residents of the dwelling to evacuate. Receiving new fire from inside the dwelling and not wishing to be pinned down, the commander calls in air support. That stops the hostile fire, but also kills civilians who remain inside. Some scholars have argued that military ethics should subject the state to further duties when it uses air power to minimize the risk to its own troops. Under the "duty to risk", the state has a categorical duty to risk its own forces and in this example, it would have an affirmative obligation to mount a ground assault on the apartment dwelling, even when IHL would not require this decision. The author argues that this theory misconceive both IHL and military ethics.

• Counterinsurgency law : new directions in asymmetric warfare / William Banks