Hostile intent and civilian protection - interview with Bonnie Docherty

Reducing the number of civilian causalities has become a stated key priority for the US military over the last years, notably during  the latest operations in Afghanistan and Iraq. The human cost of such military operations can be significantly reduced by increasing the accuracy of determinations of “hostile intent,” which entitles troops to fire, and by institutionalizing lessons learned from previous cases where a threat of imminent use of force has been misidentified.

On 8 November, Bonnie Docherty, Lecturer on Law and Senior Clinical Instructor at Harvard Law School’s International Human Rights Clinic, will present an Expert Briefing focused on her recent research on the issue of hostile intent, providing legal experts and humanitarian practitioners with an update on recent trends and challenges related to its determination. As an introduction to this session, we spoke to Bonnie who explained the motivation behind her research and the relevance of this topic for not only legal experts, but also humanitarian workers in the field.

Bonnie, you were the lead researcher and author of a recent report on hostile intent and civilian protection, that we’ll be learning more about during the Expert Briefing session you will participate in on 8 November. What was it that prompted this research?

Advancing the protection of civilians in armed conflict has long been a goal of my research and that of the Harvard Law School International Human Rights Clinic. Several experts who had done field work in Afghanistan and Iraq informed me that erroneous determinations of hostile intent were a major cause of civilian casualties during US operations in those countries. Therefore, an in-depth study of the issue seemed warranted.

Our research examined the challenges of making hostile intent determinations and the threats posed to civilians. It also identified shortcomings in both the rule of hostile intent and its implementation, and offered suggestions for addressing those shortcomings in order to increase civilian protection.

The timing of the project turned out to be fortuitous. The fact that US combat operations in Afghanistan and Iraq were coming to an end made it a good time to reflect on lessons learned. Despite the efforts the United States and its allies made to increase civilian protection during those operations, we found that more could be done in future operations and in training of other states’ security forces.

Why is the knowledge of the rules and practices of determining hostile intent essential for an advanced understanding of international humanitarian law (IHL)?

The rule of hostile intent is articulated in national rules of engagement (ROEs) rather than IHL. But there are multiple reasons that an understanding of the issues surrounding hostile intent are essential for those interested in IHL.

First, one of the key objectives of IHL is to increase the protection of civilians in armed conflict. An in-depth knowledge of any law or rule that can augment or diminish that protection should be of interest to IHL experts. The rule of hostile intent falls in that category. In Afghanistan and Iraq, its application led to civilian casualties – yet, if properly interpreted and implemented, the rule could protect civilians without undermining troops’ right to self-defense.

Second, it is important to understand the relationship between rules of IHL and national rules of engagement because both affect the conduct of militaries in armed conflict. At times these rules can reinforce each other, but at other times they can compete.

Third, some countries, notably the United States, have started to blur the distinction between “direct participation in hostilities” (DPH) (an IHL concept) and “hostile intent” (an ROE concept). When describing why a civilian was targeted intentionally, US sources tend to say that a service member fired in self-defense because the individual was demonstrating hostile intent, rather than arguing that the individual was directly participating in hostilities. IHL experts should be aware of this shift in order to ensure that IHL rules are adequately applied.