Combating Civilian Casualties: Rules and Balancing in the Developing Law of War

Abstract

This Article addresses why we need to reconsider the roles of rules, explicit balancing, and focusing on consequences of key international law provisions in light of recent developments in war. In conducting this reconsideration, this Article weighs the possible tradeoffs between enhancing the progressive content of the law of war and enhancing compliance with that law. This reconsideration will also be impacted by differences in motives for fighting and a group's responsiveness to relevant international law. This Article concludes that some circumstances, particularly in the context of the intentional killing of civilians, require flat, fixed rules, while others require more sensitive, explicit balancing tests.