FHI - IN A NUTSHELL

FHI in a Nutshell.pdf

Download PDF • 165KB

The Problem

Modern warfare has transformed beyond recognition. Drones, satellites, and surveillance systems mean military commanders often know exactly who is in a building before they strike it. They can see families on screens. They can count children in courtyards. They can predict, with statistical precision, how many civilians will die.

Yet the legal rules governing armed conflict were designed for a different era - one where commanders genuinely could not know who was below when bombs fell. Those rules focus on intention: as long as a commander did not intend to kill civilians, and the civilian deaths were not 'excessive' compared to the military advantage gained, the strike is lawful. The civilians who die are labelled 'collateral damage' - regrettable but legally permissible.

The result is a gap between what the law promises and what it delivers. Civilians are killed in circumstances where their presence was known, their deaths were predicted, and alternatives may well have existed that could have spared them. The current interpretation of the law of war calls these deaths 'unintended' and 'not excessive.' They were neither. They were foreseen, and they may well have been avoidable.

The Doctrinal Problem

International tribunals have tied themselves in knots trying to define 'intent.' As Dean Jens David Ohlin of Cornell Law School has documented, the ICTY's Galić jurisprudence effectively collapsed the distinction between targeting civilians and foreseeing their deaths - importing dolus eventualis into the concept of intent. If foreseeing civilian casualties counts as 'intending' to attack civilians, proportionality analysis becomes superfluous. Yet the law clearly contemplates that commanders will foresee collateral damage and proceed anyway, provided the harm is not excessive.

FHI cuts through this paradox by asking a different question entirely: not 'did the commander intend?' but 'could the commander have avoided?'

The Solution: FHI

The Principle of Foreseeable Harm to Innocents closes this gap through one core proposition:

If you can see them, and you can spare them, you must spare them.

FHI does not abolish existing rules. It clarifies what they already require in an age of unprecedented surveillance and precision. It introduces a two-stage avoidability gate:

Stage 1 - Elimination: Can any feasible alternative eliminate the foreseeable harm? If yes, the attack must not proceed as planned.

Stage 2 - Substantial Reduction: If elimination is impossible, can any feasible alternative substantially reduce the foreseeable harm? If yes, that alternative must be adopted.

Only if harm is genuinely unavoidable - only if both stages are exhausted - does traditional proportionality analysis proceed.

This reframes the legal inquiry. Currently, commanders ask: 'Is this level of civilian harm acceptable given the military advantage?' FHI requires them first to ask: 'Is this harm necessary at all?'

Academic Endorsement

Oxford Professor Henry Shue, whose work on protective proportionality is foundational in this field, has concluded that FHI's insistence on assessing avoidability before proportionality is 'radically better' than prevailing approaches that 'plunge right into proportionality weighing.' Cornell Professor Matthew Evangelista has described FHI as 'a kind of intermediate mechanism between the systemic-level enabling of atrocity and the rules of engagement.'

A Real Case

On 21 May 2016, President Obama authorised a drone strike against Mullah Mansour, leader of the Taliban, as he travelled by taxi through Pakistan. The driver, Mohammad Azam, was a father of four with no connection to any militant group — he had been randomly assigned the fare that morning.

Mohammad Azam was identifiable as a civilian. His death was foreseeable with certainty. It was avoidable - a ground operation, a different time, a different location. There was no ticking bomb.

Yet the legal framework never engaged with his death. The Pentagon classified Azam as "another combatant" -  consistent with an Obama-era methodology that presumed all military-age males in a strike zone to be combatants unless posthumously proven otherwise. This inverted the fundamental IHL rule that in doubt, a person must be presumed civilian.

With no acknowledged civilian, there was no proportionality question to answer.

Under FHI, the analysis would be different. The avoidability gate requires: Can you identify civilians? Can you foresee harm? Can you avoid it? In this case: yes, yes, and yes. The strike should not have proceeded as planned.

FHI does not ask whether Mohammad Azam's death was "proportionate." It asks whether it was avoidable.

What FHI Is Not

It is not pacifism. FHI does not prohibit military operations. It prohibits avoidable civilian deaths. Legitimate military objectives remain lawful.

It is not new law. FHI articulates what existing humanitarian law already requires when properly interpreted for modern capabilities. It clarifies; it does not invent.

It is not impossible. Modern militaries already have the technology to identify civilians and choose alternatives. FHI requires them to use capabilities they already possess.

It does not eliminate proportionality. Proportionality applies only after the avoidability gate has been exhausted - to the narrow set of cases where harm is foreseeable but genuinely unavoidable.

It does not criminalise mistakes. Genuine errors, made in good faith with reasonable verification, do not attract liability. FHI targets recklessness and wilful blindness, not the fog of war.

Why It Matters

FHI responds to a simple moral intuition:

If we can foresee harm, and we can prevent it, we must prevent it.

This is not a radical proposition. It is what the law of armed conflict has always promised. FHI simply holds modern militaries to that promise.