Avoid or Compensate? Liability for Incidental Injury to Civilians Inflicted during Armed Conflict
Ronen, Yael, Vanderbilt Journal of Transnational Law
Under international law, civilians suffering injuries that are incidental to a lawful attack on a military objective are left to bear the cost of their losses. In recent years there have been calls for a change in policy that would entitle victims of military attacks to compensation, even if their losses are incidental and non-fault-based. This Article explores the notion of such a quasi-strict liability rule, which is likely to disrupt the existing balance of powers and interests under the laws of armed conflict. Following an exploration of the conceptual basis for such an obligation, the Article examines the effect of a strict liability rule on the conduct of parties to a conflict, inter alia through economic analysis. A final question is how to ensure that the liability of the injuring party translates to an effective mechanism for securing compensation. This Article concludes that if the moral commitment to victims justifies a strict liability rule, considerations of utility require a fine-tuning of the obligation and its implementing mechanisms.
TABLE OF CONTENTS I. INTRODUCTION: INCIDENTAL INJURY TO CIVILIANS AND THE LAWS OF ARMED CONFLICT II. FRAMING AN OBLIGATION TO COMPENSATE FOR INCIDENTAL INJURY A. Incidental Injury as an Excused Breach B. Incidental Injury as an Injurious Consequence of an Act Not Prohibited by International Law C. Summary III. THE EFFECT OF AN OBLIGATION TO COMPENSATE FOR INCIDENTAL INJURY ON THE CONDUCT OF PARTIES TO AN ARMED CONFLICT A. Economic Analysis and the Laws of Armed Conflict B. An Incentive to Reduce Activity Levels C. A Disincentive to Take Action and the Ius ad Bellum/Ius in Bello Distinction D. The Distinction Between Legal and Illegal Attacks E. Conflicts with Non-State Actors F. Summary IV. AN OBLIGATION TO COMPENSATE FOR INCIDENTAL INJURY AS A MEANS OF RECOVERY OF LOSSES A. The Bearable Cheapness of Life and Limb B. Claim Mechanisms 1. Institutions for Individual Claims 2. State Claims 3. A Combined Mechanism 4. Political Enforcement 5. Conclusion V. SUMMARY
I. INTRODUCTION: INCIDENTAL INJURY TO CIVILIANS AND THE LAWS OF ARMED CONFLICT
Civilian injury and death resulting from conflict are by no means a new phenomenon. (1) However, such injury and death as incidental outcomes of military attack (hereinafter simply "incidental injury") have grown more prevalent and visible with new military technology and changes in warfare. Some of this growth owes to the expansion of battlefields into "battlespaces"; (2) some of it to the large-scale involvement of civilians in technical disciplines that support military operations; (3) and some of it to the escalating frequency of asymmetric conflicts, where the principle of distinction is less than rigorously observed, especially, but not exclusively, by the technologically inferior party.
In order to protect civilians from harm, the laws of armed conflict distinguish between combatants and civilians. The principle of distinction is expressed foremost in the absolute prohibition on intentional targeting of civilians expressed in the first Protocol Additional to the Geneva Conventions. (4) Yet the laws of armed conflict acknowledge the futility of a general prohibition on causing injury to civilians, because the only way to comply with such a prohibition and ensure that civilians are not injured is to abstain from attack altogether. (5) Parties would have a choice between compliance with the law by refraining from military action and violation of the law despite their best intentions. The former is unrealistic, (6) and the latter is unfair. Consequently, civilians are not entirely immune to attack, and not every injury to a civilian constitutes a violation of international law. Instead, beyond the absolute prohibition on intentional targeting of civilians and a handful of other absolute prohibitions, (7) the parties' conduct is governed by the obligation to minimize harm to civilians, without setting undue limitations on the pursuit of military goals. …