Dr Faisal Al-Mutairi
President, International Diplomatic Union
Advisor and Independent Researcher in Public International Law
Abstract
This article re-examines one of the current practices of international humanitarian law, namely that repeated harm in contemporary conflicts is often not viewed as a series of recurring events and is not discovered until after time has passed and the humanitarian harm has worsened, even though the legal principle recognizes the concepts of widespread conduct or systematic harm. Legal assessment methods still largely depend on individual incidents and need to change in principle. The article also questions whether it is possible to better accommodate the patterns of conduct defined here as cumulative responsibility within current law. The article also questions whether, under certain circumstances, the conduct observed at the outset may not be a cumulative indicator but could be a means of future proof, taking into account legal considerations and discipline in collecting evidence.
1. Introduction:
Legal Definition in this Case
International humanitarian law, in its legal aspects, relies on the separation of events. It assesses each case by referring to specific acts, such as strikes, detention, and confinement. This structure is designed to ensure and reflect a commitment to legal certainty: that is, responsibility rests with the event that can be clearly described, assessed, and challenged when necessary.
However, this approach sometimes encounters problems and ambiguities in certain forms of harm that appear as isolated incidents, or are deliberately presented as such in many contemporary conflicts. But the harm accumulates gradually and does not appear, from a distance, as a series of cumulative acts to observers.
Therefore, the problem does not lie in the law’s inability to classify such cases, but rather in the difficulty of linking and classifying the events as cumulative and systematic harm.
2. Patterns Without a Method
It cannot be claimed that international law ignores systematic practices. The International Criminal Court and the International Criminal Tribunal for the former Yugoslavia have previously relied on different grounds of evidence that have proven to extend beyond individual acts. Furthermore, the term “systematic conduct” itself presupposes some form of accumulation.
However, admissions do not entirely align with the method of proof based primarily on individual incidents. The possibility of cumulative conduct is not considered as a legal basis, and this constitutes a kind of inconsistency. Legal principles suggest adopting this approach, while judicial rulings remain focused on isolated events.
This is not a flaw, but rather reflects a deliberate legal caution and an awareness that the boundaries of responsibility may become less precise once conduct becomes cumulative.
3. The topic from another angle
In this discussion, we approach the issue differently. We are not proposing a new category of offenses, nor are we seeking to override existing standards. Rather, we are asking whether patterns of behavior under certain circumstances might indicate a cumulative effect, and whether the evidence supports this. The concept of cumulative responsibility, in this context, offers a way of interpreting events. It calls for attention to whether a series of actions, none of which is clearly and individually illegal, but which, when considered together, constitute a form of harm already recognized by international law. This principle operates within existing legal categories but focuses on how to prove that such cumulative acts are recognized by international law.
A. Attention and caution, not hesitation.
The step in this direction must begin with precision and control over every move because the objections are not simple and the subject is important and touches on what gives international law its authority.
B. Legality and Foreseeability
One of the most important principles of law and its legitimacy is that there is no crime except by virtue of a legal provision. This sets legal boundaries to prevent the expansion of the scope of cases. Moreover, the recommendations of the International Court of Justice emphasize the importance of due diligence, legal reasoning, and certainty before determining cumulative responsibility.
It is also self-evident that repetition can sometimes exceed the bounds of prediction. Sometimes, a habitual behavior becomes persistent, its effects accumulating clearly, and the claim that the consequences were unforeseeable becomes inevitable.
C. The Risk of Over Construction
One of the methodological concerns is that behaviors or patterns, however convincing, can be misleading. A series of seemingly unrelated incidents may appear cumulative due to selective interpretation, and international criminal courts have repeatedly warned against this selectivity, ordering that evidence not be overused.
For cumulative reasoning to remain credible, it must be carefully calibrated and verified. Not every accumulation constitutes a case.
D. Institutional Limits
There is also the issue of the institutional role of courts; they interpret and investigate, but they do not legislate. Expanding the methods of expressing responsibility might be seen as a new form of judicial practice.
Here, caution is necessary, because expanding in this direction will require greater precision and time to develop a proposal based on logic that remains closely aligned with existing legal principles.
4. Constrained Approach
If cumulative liability is more than just a presumption, then it requires clear and defensible boundaries.
A narrower formulation might require, for example: continuity of conduct over a defined period; a logical connection to policy, strategy, or operational logic; or a specific level and quantity of cumulative harm that conforms to recognized legal categories.
Under these conditions, cumulative liability does not create new forms of liability but rather serves to identify the types of harm that have occurred, in accordance with the principles of international law.
5. Why the Distinction Matters
The necessity of such verification and scrutiny may be questioned, given that international law inherently includes classifications capable of addressing widespread damages.
The difficulty lies not in the absence of standards, but in how to structure the facts in light of these standards.
This is crucial for bridging the gap between how to present a loss of rights and the failure to construct a comprehensive legal claim in accordance with the principles of international law.
Conclusion
In this discussion, we do not claim to offer a comprehensive solution to the issue of cumulative responsibility. Rather, we highlight its importance and emphasize the need to prevent systemic cases from escaping punishment due to a lack of investigation and verification of the chain of harm and its accumulation. We also stress the risks of applying cumulative responsibility without thorough investigation and verification.
We humbly suggest that the current framework of international humanitarian law, based on individual incidents, while crucial, could benefit from a deeper examination of conduct that points to cumulative responsibility. However, the question remains: can this examination be further developed without compromising the principles of international law?
