Concept Paper: Strengthening Civilian Protection Through the Principle of Foreseeable Harm to Innocents (FHI)

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Executive Summary

Declaration on Foreseeable Harm to Innocents proposes a clear, operationally grounded standard: where ascertainable civilians - especially children - are foreseeably at risk of death or serious injury, an attack must not proceed unless narrowly defined emergency conditions are satisfied.

This principle responds to a structural difficulty in contemporary interpretations of international humanitarian law (IHL). In conflicts in Gaza, Ukraine, Yemen, Somalia, Afghanistan, and Syria, civilian deaths are frequently predictable, visible, and preventable - yet routinely characterised as "lawful" under permissive readings of proportionality and the intent/foreseeability distinction.

Recent national security strategies that broaden operational freedom and anticipate higher levels of incidental civilian risk make this clarification especially timely.

It is axiomatic that FHI must not and does not make new law. FHI articulates what existing IHL already requires - a further-protective standard that no state is legally barred from recognising, and that gives substantive content to obligations that current practice has allowed to atrophy.

FHI's intellectual foundations rest on three bodies of work: Jens David Ohlin's rigorous defence of the intent/foresight distinction, which shows why foreseeable harm cannot coherently be resolved by reconstructing intent and therefore invites inquiry elsewhere in the doctrinal structure; Neta Crawford's empirical analysis of systemic collateral damage, which exposes the accountability gap that intent-focused frameworks produce; and Henry Shue's insistence that legal obligation must be indexed to operational capacity. FHI synthesises these insights into a single doctrinal mechanism: the avoidability gate.

Scholarly Endorsement

The framework has benefited from receiving sustained and substantive engagement from leading scholars in international ethics and humanitarian law. Oxford Professor Henry Shue identified its central advance as the insistence that avoidability must be assessed prior to proportionality balancing, noting that prevailing approaches “plunge right into proportionality weighing,” whereas the framework’s “most valuable point is that the avoidability requirement comes first.” On that basis, he concluded unequivocally: “Your way is radically better.”

The proposal has also been endorsed as promising and conceptually sound by Matthew Evangelista, who wrote that “a number of us - Henry Shue and others and I—have studied Neil’s proposal and find it promising,” characterising it as “a kind of intermediate mechanism (an ‘avoidability gate’) between the systemic-level enabling of atrocity … and the rules of engagement.” In subsequent correspondence, Evangelista described revisions to the work as “excellent,” praising the clarity and force of the argument, noting that “the language is clear and compelling,” and commending in particular the treatment of intent, systemic harm, and human shielding as “as good as it can be, given the inherent conundrum.”

1. Why Clarification Is Needed

1.1 The Historical Erosion of Civilian Protection

The need for FHI reflects a pattern of normative erosion documented across decades of modern warfare. In The Doomsday Machine: Confessions of a Nuclear War Planner (2017), Daniel Ellsberg revealed how Cold War planners categorised hundreds of millions of civilian deaths - including in neutral countries like Finland, India, and Japan - as acceptable "collateral damage" in nuclear war scenarios. The moral architecture that made such calculations possible did not emerge suddenly; it developed through incremental redefinition of what counts as "excessive" harm.

This trajectory - from Roosevelt's 1939 appeal to spare civilian populations, unanimously affirmed by all belligerents including Nazi Germany, to the systematic firebombing of cities within three years - demonstrates how easily protective norms can be abandoned when military objectives are prioritised over civilian immunity. The same pattern recurs in contemporary conflicts, where Intelligence, Surveillance, and Reconnaissance (ISR) capabilities make civilian presence visible yet foreseeable deaths continue to be justified.

The 2015 film Eye in the Sky depicts the kind of deliberation that should precede attacks where civilian harm is foreseeable: verification of presence, consideration of alternatives, escalation to senior authority, genuine moral struggle over a single child's life. Yet the documented frequency of civilian casualties in actual operations - wedding parties struck repeatedly in Afghanistan, rescuers killed in "double-tap" drone strikes, taxi drivers killed alongside their passengers - suggests that such deliberation rarely occurs in practice. If it did, there would not be so many foreseeable, avoidable deaths.

1.2 The Humanitarian Crisis of Foreseeability

Across modern conflicts, civilians - particularly children - are being killed not as accidents, but as foreseeable consequences of targeting decisions. This foreseeability stems from ISR visibility of civilians near targets, known presence in homes, vehicles, and shelters, repeated patterns of life, observable movement dynamics, and the conduct of hostilities in densely populated areas.

The justifications offered, "unintended," "collateral," "not excessive", have become difficult to sustain when attackers possess detailed knowledge of civilian presence before strikes are authorised.

The widening gap between modern strategic doctrines and longstanding humanitarian restraints makes clarification no longer optional but necessary.

1.3 The Indeterminacy of Proportionality

The proportionality test asks whether civilian harm would be "excessive" in relation to anticipated military advantage. Both variables are undefined: "excessive" lacks an objective threshold, and "military advantage" has been interpreted with considerable elasticity. Attackers apply the test subjectively, and post-strike reviews typically defer to their contemporaneous judgment. The result is a standard that can accommodate almost any level of foreseeable civilian harm. Proportionality, as currently interpreted, functions less as a restraint than as a vocabulary of justification.

1.4 The Difficulty with the Intent/Foreseeability Distinction

IHL permits foreseeable but "unintended" civilian deaths so long as they are not excessive. But when drone operators observe civilians in real time - children in courtyards, families in vehicles, individuals visibly non-combatant - and when collateral damage estimates predict their deaths, the claim that those deaths were "unintended" strains ordinary usage. If an attacker knows a civilian will die and proceeds anyway, the moral significance of "not intending" that death diminishes substantially.

When harm is both foreseeable and avoidable, continued reliance on intention alone ceases to perform any civilian-protective function.

1.5 The Imperative of Risk Reallocation

A fundamental principle of just war tradition, reflected in modern human rights jurisprudence, holds that combatants must accept risk rather than transfer it to civilians. As Michael Walzer has argued, "if saving civilian lives means risking soldiers' lives, the risk must be accepted." Yet contemporary practice routinely permits the opposite: standoff weapons and remote platforms eliminate combatant risk while externalising all danger onto foreseeable civilians. FHI incorporates the risk-reallocation principle directly into its operational framework.

FHI recognises that risk-reallocation is not merely a technical or legal issue but one that interacts with deep emotional and institutional instincts within armed forces. Commanders are shaped by strong obligations of loyalty and protection toward their own personnel, and drone operators or soldiers often experience powerful psychological resistance to accepting additional risk. Acknowledging these dynamics strengthens FHI: it explains why disciplined legal standards are required to counterbalance predictable human tendencies that would otherwise favour force-protection over civilian protection.

2. What the Principle of Foreseeable Harm to Innocents Does

FHI introduces:

• A presumption against attacks where persons identifiable as civilians are foreseeably at risk

• A shift from mental-state analysis ("did they intend harm?") to outcome analysis ("will ascertainable civilians die?")

• A requirement to take all feasible precautions, including reallocation of risk away from civilians

• An obligation to verify civilian presence through available means

• A duty to adopt feasible alternatives where they would reduce civilian harm

• A prohibition on unlawful risk transfer from combatants to civilians

• A narrowly defined emergency override for genuinely exceptional circumstances

• A two-tier accountability system aligned with military practice

• Provisions for remedies for victims of violations

• FHI's obligations are capacity-indexed: the scope of the precautionary duty scales with the attacker's capability. What was infeasible in 1977 may be routine in 2025. Forces with greater ISR, precision, and analytical capacity bear correspondingly thicker duties to prevent civilian harm

Under the Principle of Foreseeable Harm to Innocents, legal obligation thickens only as capacity thickens: where actors lack the practical ability to know or to do otherwise, moral tragedy may remain, but legal fault does not arise.

FHI is a lens through which existing IHL must be interpreted - not a repudiation of IHL, but a clarification of what its protective provisions already require.

3. The FHI Decision Sequence

FHI operates through a sequential analysis that must be applied in order. Each stage is a gate: only if the conditions of one stage are satisfied does the analysis proceed to the next.

Stage 1 — Status Determination Is the person directly participating in hostilities?

•         Yes → FHI does not apply; standard IHL targeting rules govern

•         No or Doubt → Doubt resolved in favour of civilian status; proceed to Stage 2

Stage 2 — Verification Has civilian presence been verified through all feasible measures?

•         Verification duties are capacity-indexed: forces with advanced ISR bear heightened obligations

•         Apply all feasible verification measures before proceeding

Stage 3 — Foreseeability Assessment Are persons identifiable as civilians foreseeably at risk?

• No → Attack may proceed (subject to standard IHL)

• Yes → Attack presumptively prohibited; proceed to Stage 4

Stage 4 — Avoidability Gate (Two-Stage Test)

Stage 4A — Elimination Test: Can any feasible alternative eliminate the foreseeable harm?

• Yes → Attack prohibited; employ the alternative

• No → Proceed to Stage 4B

Stage 4B — Substantial Reduction Test: Can any feasible alternative substantially reduce the foreseeable harm?

• Yes → Attack prohibited; employ the alternative

• No → Harm is genuinely unavoidable; proceed to Stage 5

Stage 5 — Risk Allocation Have combatants accepted risk rather than transferring it to civilians?

• No → Attack prohibited

• Yes → Proceed to Stage 6

Stage 6 — Proportionality Is expected civilian harm excessive in relation to concrete and direct military advantage?

• Yes → Attack prohibited

• No → Attack may proceed, subject to documentation requirements

Stage 7 — Emergency Override (exceptional circumstances only) Where Stages 4–6 cannot be satisfied but catastrophic imminent harm threatens, are all eight cumulative conditions of Article 8 met?

• No → Attack prohibited

• Yes → Attack may proceed; automatic post-strike review triggered

The Critical Innovation

The sequence embeds two principles that distinguish FHI from current practice:

1. Avoidability precedes proportionality. The question "could this harm have been avoided?" must be answered before the question "is this harm proportionate?" Foreseeable and avoidable harm is inherently excessive — no weighing of military advantage can justify harm that need not occur.

2. The operative presumption favours restraint. Under current interpretive practice, the presumption favours attack unless harm is deemed "excessive." Under FHI, the presumption favours protection when ascertainable civilians are foreseeably at risk, and that presumption may be overcome only through the staged analysis.

   
   

4. Legal Basis and Compatibility with IHL

4.1 Grounding in Geneva/AP I

It is axiomatic that FHI makes no new law; it builds directly on:

• AP I Article 51 (protection of civilians)

• AP I Article 57 (precautions in attack)

• The Martens Clause

• ICRC Commentary

• ICJ and ICTY jurisprudence

These provisions require "constant care," "all feasible precautions," and protection-favouring interpretation. FHI clarifies how these obligations operate when civilians are foreseeably present.

FHI’s clarifications are particularly important in an era where some states interpret military necessity more expansively; without such clarification, the protective purpose of AP I risks erosion through permissive practice.

4.2 Relationship with Proportionality

Proportionality is part of IHL; FHI does not displace it. Rather, proportionality, properly understood, specifies that foreseeable harm to ascertainable civilians, where avoidable through feasible precautions, is inherently excessive in relation to military advantage. This interpretation is consistent with the object and purpose of Additional Protocol I, existing state practice in precautionary doctrine, and the protection-favouring principle of IHL interpretation.

4.3 Extraterritorial Application

FHI applies wherever IHL applies, including extraterritorial operations such as drone strikes and special operations. The Declaration explicitly states that it applies to attacks "whether conducted within or outside the territory of an endorsing entity." The geographic location of an attack does not diminish precautionary obligations owed to civilians in the target area.

4.4 Alignment with Evolving Military Doctrine

FHI's principles are operationally achievable within existing military legal frameworks. The 2023 revision to the US Department of Defense Law of War Manual introduced a presumption of civilian status and new verification obligations - demonstrating that FHI's core requirements are compatible with advanced military doctrine. The Manual's progressive language coexists, however, with permissive targeting practices; the vocabulary of foreseeability and feasible precautions exists, but binding force does not. FHI provides that binding force by giving operational specificity to obligations that current formulations leave under-defined.

While the United States has historically been a principal architect of civilian-protection doctrine, its contemporary strategic posture shows growing tolerance for operational risk that endangers civilians. By contrast, several other states have moved toward stricter foreseeability-based standards.

• Netherlands: adoption of a formal Civilian Harm Mitigation and Response doctrine requiring structured alternatives analysis and post-strike transparency.

• Norway: doctrinal revisions emphasising risk reallocation and cautious use of high-yield munitions.

• Germany & Canada: political commitments aligning with EWIPA’s foreseeability logic.

• Latin American states (Argentina, Chile, Mexico): leadership in EWIPA and rights-based targeting constraints.

These developments illustrate that FHI is not a novel imposition but the natural continuation of an emerging pattern: states with strong democratic legitimacy increasingly recognise that modern ISR capabilities heighten, rather than diminish, the duty to prevent avoidable harm.

FHI therefore completes a normative arc already visible across multiple jurisdictions, providing a coherent doctrinal anchor for evolving practice.

Recent strategic doctrines - including the 2025 U.S. National Security Strategy - signal a willingness by some states to accept higher levels of incidental civilian risk in the name of anticipatory action and strategic competition. This development underscores the urgency of clarifying the limits imposed by IHL’s precautionary regime. FHI does not oppose strategic doctrine; it ensures that, whatever strategic framework a state adopts, foreseeable and avoidable civilian harm remains beyond the permissible boundaries of lawful force.

5. Operational Rationale

5.1 Modern Intelligence Makes Foreseeability Pervasive

ISR sophistication makes it routine to know whether civilians are present, likely present, or visible. This includes drone surveillance, satellite imagery, ground sensors, AI-assisted data fusion, and pattern-of-life analysis. In this environment, claims of uncertainty about civilian presence have limited credibility in many targeting contexts.

5.2 Feasible Alternatives Usually Exist

Modern forces can delay strikes, adjust angles, use smaller munitions, deploy ground units, warn civilians, abort attacks, or employ capture operations. FHI requires that these alternatives be genuinely considered and employed where feasible.

5.3 Risk Reallocation

Military convenience or force protection cannot outweigh civilian lives where feasible alternatives exist. FHI formalises the principle that when both soldiers and civilians face risk, and when precautions can significantly reduce civilian harm, the attacking force should bear increased risk. This reflects long-standing jus in bello tradition and the Walzer principle that combatants must accept risk rather than transfer it to innocents.

5.4 Complementary Responsibilities of Defenders

FHI does not impose a one-sided set of obligations. Defenders also bear duties under IHL to avoid co-locating military assets within civilian concentrations and to refrain from the unlawful use of human shields. Deliberately placing civilians at risk is itself a grave violation.

These violations, however, do not negate or diminish attackers’ obligations under FHI. One party’s breach cannot absolve the other of duties to ascertainable civilians. Instead, FHI clarifies a dual-responsibility framework: defenders must not expose civilians unnecessarily, and attackers must not treat defender misconduct as licence to cause foreseeable, avoidable harm.

This symmetry reinforces - rather than weakens - the protective purpose of IHL and prevents the erosion of civilian immunity in asymmetric conflicts.

6. Structure of the Declaration

The Declaration consists of nineteen articles organised into eight Parts, plus an Interpretive Guidance Annex:

Part I - General Provisions (Articles 1–2)

• Article 1: Purpose, Scope, and Application

• Article 2: Definitions (10 defined terms)

Part II - Substantive Obligations (Articles 3–7)

• Article 3: The Principle of Foreseeable Harm to Innocents (attacks will not be launched where ascertainable civilians are foreseeably at risk; persons directly participating in hostilities are excluded from this protection for such time as they participate)

• Article 4: Duty to Verify Civilian Presence

• Article 5: Duty to Minimise Harm and Reallocate Risk

• Article 6: Prohibition Where Harm Is Foreseeable and Avoidable

• Article 7: Human Shields

Part III - Emergency Override (Article 8)

• Article 8: Emergency Override (8 cumulative conditions)

Part IV - Procedural Obligations (Articles 9–11)

• Article 9: Documentation and Evidentiary Burdens

• Article 10: Transparency and Post-Incident Review

• Article 11: Accountability (Two-tier system)

Part V - Remedies for Victims (Article 12)

• Article 12: Reparation for Victims

Part VI - Relationship with International Law (Article 13)

• Article 13: Relationship with Existing IHL

Part VII - Implementation (Articles 14–16)

• Article 14: Domestic Implementation

• Article 15: Engagement with Non-State Armed Groups

• Article 16: International Cooperation

Part VIII - Norm Development and Final Provisions (Articles 17–19)

• Article 17: Judicial Consideration

• Article 18: Norm Development

• Article 19: Endorsement, Review, and Amendment

7. The Emergency Override

FHI includes a narrowly tailored override for genuinely exceptional circumstances. It may be invoked only where ALL conditions are satisfied:

(a) Imminence. A specific mass-casualty attack against civilians is imminent, meaning that harm on a scale involving tens, hundreds, or thousands of deaths will occur within a timeframe measured in minutes or hours, not days. Speculative or temporally remote harms do not qualify.

(b) No feasible alternative. No tactical, temporal, positional, operational, or non-kinetic alternative exists to avert the imminent threat; the contemplated strike is the only means by which the mass-casualty event can be averted. All alternatives must have been considered and rejected on documented grounds.

(c) Unavoidability confirmed. Foreseeable harm to persons ascertainable as civilians is genuinely unavoidable as determined through the two-stage avoidability test, not merely inconvenient to avoid.

(d) Decisive asymmetry. The expected civilian casualties from the strike are substantially lower - by a very large margin - than the casualties that would result from the imminent threat. This is not a close proportionality balance; rather, the harm prevented must vastly exceed the harm caused.

(e) Irreversibility. The threatened mass-casualty event cannot be mitigated by subsequent action. If later intervention could prevent or reduce the harm, immediate action causing civilian casualties is not justified.

(f) Intelligence reliability. The intelligence supporting the threat assessment is current, multi-source where feasible, and highly reliable.

(g) Highest-level authorisation. The attack is authorised by an authority designated in advance for emergency override decisions, at the highest level practicable under the circumstances.

(h) Contemporaneous documentation and automatic review. The commander must record, at the time of the decision, the factual basis for invoking the override, including the intelligence supporting the mass-casualty assessment, the alternatives considered and rejected, and the basis for the asymmetry calculation. Independent post-strike review is automatically triggered.

The override may NOT be invoked for:

• High-value targets (unless actively directing an imminent mass-casualty attack)

• Strategic degradation

• General battlefield advantage

• Political considerations

• Preventing speculative or future harm

• Targets of opportunity

This provision exists to maintain philosophical coherence while ensuring the exception does not consume the rule. It is expected to apply rarely, if ever. Frequent invocation indicates misapplication.

8. Accountability and Remedies

8.1 Tier 1 - Criminal Liability

Criminal liability applies to grave violations:

• Launching attacks in clear violation of FHI where civilian presence was known

• Knowingly misrepresenting intelligence

• Reckless disregard amounting to wilful blindness

• False invocation or abuse of the emergency override

• Falsifying or destroying documentation

• Command responsibility failures

Such conduct may constitute war crimes under existing international law.

8.2 Tier 2 - Administrative Liability

Administrative review applies to serious violations:

• Failure to verify

• Failure to take feasible precautions

• Failure to escalate decisions

• Failure to document

In such proceedings, the operator or commander may be required to demonstrate due diligence. This tier ensures systemic discipline without requiring proof of criminal culpability for each incident.

Consequences may include reprimand, mandatory retraining, suspension from targeting duties, loss of promotion eligibility, operational restrictions, or administrative separation.

8.3 Remedies for Victims

Civilians harmed in violation of FHI are entitled to effective remedy: acknowledgment, compensation, medical assistance, truth recovery, and assurances of non-repetition.

States should establish accessible procedures for reporting harm and seeking remedy, including procedures accessible to persons in conflict-affected areas.

Condolence payments should not require a finding of violation and do not constitute admission of liability - but they do not discharge the obligation to provide full reparation where a violation is established.

9. Pathways to Adoption

FHI fits within a long trajectory of humanitarian legal development - from Lieber to The Hague, from AP I to EWIPA - each responding to the technologies and political realities of its era. As modern ISR technologies make civilian presence visible and avoidable harm common, the next step in this trajectory is to clarify the legal consequences of that visibility. FHI therefore does not create a new norm; it completes an existing one whose doctrinal components have been present for decades but insufficiently articulated for modern targeting environments.

Step 1 - Political Endorsement

States, international organisations, and NGOs endorse the Declaration as a political commitment.

Step 2 - Targeted Early Adopters

Humanitarian norms rarely emerge from universal agreement at the outset. As with landmines, cluster munitions, and safe-schools norms, progress begins with a coalition of committed states - Nordics, Latin American democracies, segments of the EU, and AU peace operations - that already champion strong civilian-protection standards. Early adoption by these actors generates normative weight and reduces the political cost for later adoption by states operating under more permissive strategic-competition doctrines.

Step 3 - Integration into Doctrine

States update military manuals, rules of engagement, and targeting procedures to reflect FHI standards.

Step 4 - Engagement with Non-State Armed Groups

ICRC, UN, and specialised organisations promote FHI compliance among non-state armed groups. Unilateral declarations of commitment are welcomed and may be deposited with the UN Secretary-General. FHI's capacity-indexed structure means that less capable actors face correspondingly less demanding feasibility inquiries - but not no inquiry at all. The principle that foreseeable and avoidable harm is impermissible does not depend on technological sophistication.

Step 5 - Judicial Recognition

Domestic courts, the ICC, the ICJ, and regional courts cite FHI as evidence of how states understand their existing IHL obligations.

Step 6 - Customary Law Formation

As state practice and opinio juris accumulate, FHI may crystallise into customary IHL.

Step 7 - Treaty Transformation

A future FHI Convention or Additional Protocol becomes viable.

10. Why States Should Support FHI

Moral legitimacy: States benefit when they demonstrate commitment to civilian protection.

Strategic effectiveness: Civilian casualties undermine counterinsurgency, peacekeeping, and stability operations.

Political credibility: Democracies face public pressure to reduce civilian harm; FHI provides a clear standard.

Technological realism: FHI reflects what modern sensors and ISR already make possible.

Legal coherence: FHI resolves ambiguities without contradicting treaty law.

Reduced litigation risk: Clear standards reduce exposure to legal challenges.

11. Why NGOs, Academics, and UN Actors Should Support FHI

FHI:

• Provides a clear, measurable standard

• Prioritises the lived experience of affected civilians

• Addresses long-standing criticisms of proportionality's indeterminacy

• Strengthens protection in extraterritorial operations

• Aligns with the EWIPA movement

• Provides a workable advocacy tool

• Includes provisions for victim remedies often absent from IHL discourse

• Incorporates the risk-reallocation principle

12. Anticipated Critiques and Responses

"FHI is too strict."

Civilian protection is meant to impose genuine constraints; flexibility already lies overwhelmingly with militaries. FHI restores balance.

"It undermines military necessity."

Necessity has never justified foreseeable killing of civilians where alternatives exist.

"It is unrealistic."

Modern ISR and precision capabilities make FHI entirely feasible.

"It conflicts with existing IHL."

FHI clarifies ambiguous standards in favour of civilians, as required by IHL's protection-favouring interpretive principle.

"It criminalises mistakes."

Only reckless, negligent, or deliberate failures attract criminal liability; the administrative tier handles genuine errors.

"Intent should matter."

Intent remains relevant. But when harm is foreseeable with near-certainty, the moral significance of "not intending" diminishes. FHI focuses on what the attacker knew would happen.

13. Implementation Roadmap

Launch

• Publish Declaration, Explanatory Report, Concept Paper, Policy Brief, and academic article

• Secure endorsements from reputable NGOs

• Present to Geneva-based missions and sympathetic states

Promotion

• Organise expert roundtables

• Publish academic commentary

• Secure press coverage

• Engage with UN human rights mechanisms

Adoption

• Encourage states to incorporate FHI language in national doctrine

• Reference FHI in court submissions

• Submit to UN bodies (OHCHR, UNGA committees, Special Rapporteurs)

Institutionalisation

• Encourage inclusion in military training

• Support research funding

• Advocate for inclusion in UN protection-of-civilians practices

Long-term Consolidation

• Move toward a FHI Convention or Additional Protocol

• Achieve jurisprudential recognition as evidence of customary law

14. Conclusion

The Declaration on Foreseeable Harm to Innocents offers a clear, humane, and operationally practical clarification of existing humanitarian law. It responds to a pressing need: to restore credibility to civilian protection and to prevent foreseeable, avoidable civilian deaths.

FHI does not weaken states; it strengthens their legitimacy. It does not hinder military operations; it elevates their legal and ethical credibility. It does not contradict IHL; it gives effect to IHL's protective purpose where interpretation has become permissive.

This Concept Paper invites states, NGOs, scholars, and institutions to endorse FHI as a vital step toward more humane and responsible conduct of hostilities.