The obligation to distinguish between civilians and civilian objects on the one hand and military objectives on the other is a central tenet of international humanitarian law (the law that applies during an armed conflict). Collateral damage is inflicted when a party to the conflict intends to attack a military objective but kills or injures civilians or destroys civilian objects in addition to, or instead of, destroying the military objective.
Significant collateral damage is a particular risk with respect to aerial bombardment campaigns. There are several ways in which a conflict bombing of legitimate targets may kill and injure civilians. The civilians may be working inside the target, such as workers in a munitions factory, or they may live next to, or simply be passing by, a military target. An example of civilians killed and injured as a result of living near targets is the deaths of, and injuries to, civilians in the 2003 Iraq conflict, when houses in the vicinity of military objectives collapsed as a result of the shock of explosions.
Another risk is that missiles may simply go off course. In the 2003 Iraq conflict, Amnesty International reported that a U.S. missile hit a bus in Western Iraq, killing five civilians and injuring others. A U.S. spokesman reportedly stated that the real target was a nearby bridge. A further threat to civilians from aerial bombardment is the risk of damage caused by defensive measures such as anti-aircraft missiles, which may fall back onto civilian areas.
Collateral damage does not necessarily occur immediately following an attack on a military objective. During the 1990-91 Gulf conflict, many more deaths occurred as a result of the long-term effect of the targeting of power grids, as sewage plants and water purification facilities broke down, than were caused contemporaneously during the bombardment.
An important question in relation to the threat of collateral casualties resulting from aerial bombardment is whether this threat has become practically negligible as a result of the advent of precision-guided missiles. Unfortunately, although precision-guided missiles have the capacity to greatly reduce collateral damage, risks to civilians remain. Weather may affect the accuracy of such missiles, and countermeasures such as smoke or jamming devices may interfere with their targeting system.
International Armed Conflicts
Although treaties and customary international law regarding armed conflicts (i.e., law that results from the general practice of nation-states coupled with the belief that they are legally obliged to so act) prohibit the intentional targeting of civilians, they accept that civilians may be incidentally affected. Part of the reality of war is that innocent people are killed and injured and their property is damaged. International humanitarian law would never be respected if it established unrealistic rules.
The modern expression of the legal restriction on collateral damage in international armed conflicts is set out in Article 51(5) of the 1977 Protocol I Additional to the 1949 Geneva Conventions. It is prohibited to launch any attack with expectations that it will cause incidental loss of civilian life, injury to civilians or damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. This means that the death and destruction of innocent civilians and their property which is incidental to an attack on a legitimate military target (i.e., collateral damage) is prohibited only if it is excessive in relation to the military advantage anticipated from the attack. In a recent study on customary international humanitarian law, the International Committee of the Red Cross (ICRC) opined that this rule represents customary international law and so is binding on all nation-states.
Therefore, any commander who authorizes an attack in an international armed conflict which causes excessive collateral damage may be criminally responsible under international law for the commission of a war crime. Indeed, the statute of the International Criminal Court (created in 1998) prohibits, under Article 8(2)(b)(iv), intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated. This only criminalizes very clear incidents of excessive collateral damage when the accused person realizes that the attack would cause such excessive civilian casualties.
Noninternational Armed Conflicts (Civil Wars)
International humanitarian law is generally less extensive and less specific when it comes to noninternational armed conflicts. Historically, nation-states have been jealous of their sovereignty and unwilling to countenance any interference in domestic affairs. Humanitarian law in noninternational armed conflicts is governed by Article 3 common to the four 1949 Geneva Conventions (universally accepted by nation-states). However, owing to the generality of this article, it appears that the only possible bearing on collateral damage is the duty to treat noncombatants humanely, which arguably would be breached by intentionally attacking a target which would cause excessive civilian casualties.
The other treaty which may apply during noninternational armed conflicts (for those nation-states accepting it) is the 1977 Protocol II Additional to the Geneva Conventions. However, although this prohibits intentionally attacking civilians and attacking objects indispensable to the survival of the civilian population, it does not expressly prohibit excessive collateral damage. The statute of the International Criminal Court also fails to refer to excessive collateral damage in noninternational armed conflicts. Therefore, the issue arises as to whether or not customary international law prohibits excessive collateral damage in noninternational armed conflicts. The ICRC study proclaimed that the rule prohibiting excessive collateral damage applies in both international and noninternational armed conflicts, but the extent to which nation-states accept this finding remains unclear.
- Fenrick, William. 1982. “The Rule of Proportionality and Protocol I in Conventional Warfare.” Military Law Review 98:91-127.
- Lippman, Matthew. 2002. “Aerial Attacks on Civilians and the Humanitarian Law of War: Technology and Terror from World War I to Afghanistan.” California Western International Law Journal 33:1-67.
- Reynolds, Jefferson D. 2005. “Collateral Damage on the 21st Century Battlefield: Enemy Exploitation of the Law of Armed Conflict, and the Struggle for a Moral High Ground.” Air Force Law Review 56:1-108.
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