Sebastian Kaempf offers a sympathetic review of Bugsplat, critiquing not its central thesis or evidence but its focus on the behavior of combatants - rather than the deficiencies in international humanitarian law (IHL) - as the explanation for collateral damage. I am happy to address this concern, inasmuch as Kaempf’s view that IHL is too permissive in allowing combatants to engage in actions that are dangerous to civilians is not the typical criticism that I receive. Many political leaders and military commanders actually argue that IHL is too restrictive and fails to recognize the realities of war. In my book, I tried to allow for both views by taking the laws of armed conflict as given, focusing instead on the degree to which Western states uphold the spirit of the principles that they themselves have agreed to follow.

While it is certainly legitimate to question whether current law sufficiently protects civilians, my study found that high rates of collateral damage are not the result of deficiencies of IHL itself but rather the policies and practices that define the Western approach to warfare. I concluded that when applied as they were intended, the core principles of IHL should provide a sufficient level of protection to civilians, but only if the combatants comply with the spirit, not just the letter, of the rules. In this sense, the problem is political rather than legal or moral. On the basis of my research, I am not convinced that changes in the law will result in fewer civilian casualties, so long as Western armies continue the practice of employing overwhelming military force against political and military targets without greater regard for the consequences to civilians.

Moreover, given the absence of a global authority with the power to issue binding rulings, combatants will always have leeway in determining how the laws apply in particular circumstances, regardless of the specific rules. This speaks directly, for example, to Kaempf’s charge that IHL does not adequately address the problem of risk transfer. While it is generally agreed that as the principle actors in armed conflict, combatants are expected to assume greater risk than civilians, it is difficult if not impossible to establish the precise amount of risk they are required to accept. For these reasons, I found that the key to resolving the problem of high collateral damage is for political leaders and military organizations to adjust the reckless policies that endanger civilians in conformity with the spirt of IHL.

International humanitarian law is a compromise between the contrasting values of military advantage and civilian immunity, a clash that Kaempf himself recognizes as a major source of tension in his own excellent book. Military officials have traditionally held that military advantage (kriegsraison) should dictate strategy, while human rights supporters have promoted the notion that noncombatants should be immune from military activities. The laws of armed conflict are designed to balance these competing values through the principles of distinction, military necessity, proportionality, and feasible precaution. Kaempf implies that the rules that embody these principles are inadequate for achieving the moral and ethical standards necessary to protect civilians. However, he does not specify which rules need to be revised and how such revisions would better protect civilians. Granted, he only had limited space, but it is not clear to me which moral and ethical principles should be transformed into legal obligations in order to provide greater protection to civilians.