IHL’s Reasonable Military Commander Standard and Culture : Applying the Lessons of ICL and IHRL

Empirical studies have demonstrated that cultural considerations are a factor in assessing proportionality and evaluating whether an attack causes unreasonable injury. Yet, culture’s influence has received minimal attention in the literature on International Humanitarian Law (IHL). This article seeks to redress this gap by opening a discussion on how the "reasonable military commander" standard — determining the relative values assigned in the proportionality equation — might be made "reasonable" from a cultural perspective. Undeniably, incorporating culture into IHL risks a dangerous slide into cultural relativism, however, ignoring its hidden applications under IHL also has risks. It has exposed the IHL to charges of Eurocentrism and neocolonialism, which has compromised its institutional reputation and effectiveness; nations are less likely to adhere to a standard which they view as biased. Requiring prevention of harm to civilians is a starting point; however, current hegemonic applications necessitate careful consideration of how a balanced interpretation of cultural reasonableness might be achieved. Through an analysis of cultural relativism and defenses in International Criminal Law, this article offers a preliminary discussion of the potential risks and gains of introducing a narrow application of cultural defense into IHL as a means of counterbalancing culture’s hidden influence