Civilian Casualties in Modern Warfare: the Death of the Collateral Damage Rule

• Citation: Vol. 41 No. 2
• Publication year: 2013
• topic: Military Law

CIVILIAN CASUALTIES IN MODERN WARFARE: THE DEATH OF THE COLLATERAL DAMAGE RULE

Valerie Epps^*

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Table of Contents

I. Introduction...............................................................................309

II. The Changing Nature of Warfare..........................................310

A. The Threshold of War/Armed Conflict.....................................310
B. Categorizing Types of Armed Conflict.....................................312

1. Interstate Armed Conflict...................................................312
2. Armed Conflict by States Against Overseas Non-State Entities...............................................................................312
3. Internal Armed Conflict.....................................................313

C. Transnational and National Conflicts and Their Transmutation..........................................................................314
D. The Changing Prevalence of the Types of Armed Conflict......315

1. The Prevalence of Inter-state Armed Conflicts..................316
2. The Prevalence of Extra-territorial Armed Conflicts by States Against Non-State Entities......................................316
3. The Prevalence of Internal Armed Conflicts.....................317
4. Conclusions on the Prevalence of Types of Armed Conflicts.............................................................................318

III. The Shifting Ratio of Military to Civilian War-Related deaths...........................................................................................319

A. Introduction.............................................................................. 319
B. Problems with Compiling Data on War-Related Casualties.................................................................................320
C. War-Related Casualties............................................................320

1. U.S. Military Deaths .......................................................... 320
2. Overall Military Deaths..................................................... 321
3. Civilian War-Related Deaths............................................. 322

a. Problems with Data Compilation on Civilian War-Related Deaths .................................................... 322

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b. Problems with Calculating the Ratio of Military to Civilian War-Related Deaths ...................................... 325

i. The 10 to 1; 9 to 1; and 8 to 1 Ratios...................325
ii. The Range of Acceptable Ratios of Civilian to Military War-Related Deaths................................326

IV. THE COLLATERAL DAMAGE RULE.................................................329

A. Introduction..............................................................................329
B. A Brief History of the Collateral Damage Rule ....................... 331

1. The Idea of Restraints on Warfare.....................................331
2. The Principle of Distinction...............................................333
3. The Formulation of the Collateral Damage Rule..............335

a. The Prohibition on Indiscriminate Attacks..................335
b. Proportionality in Attack.............................................335
c. Precautions in Attack .................................................. 336
d. Precautions Against the Effects of Attacks..................336

C. Criticisms of, and Problems with, the Collateral Damage Rule...........................................................................................336
D. Does the Collateral Damage Rule Require a Direct Causal Link from Military Attack to Civilian Death or Damage to Violate the Rule?......................................................................344
E. Conclusion on the Protection Afforded to Civilians by the Collateral Damage Rule...........................................................347

V. THE REGULATORY EFFECT OF THE COLLATERAL DAMAGE RULE IN LIGHT OF ITS OVERALL FAILED PURPOSE........................348

A. Introduction..............................................................................348
B. The Purposes of the Collateral Damage Rule Viewed Narrowly and Broadly..............................................................348
C. The Fate of Legal Rules That Cannot Fulfill Their Overall Purposes ...................................................................................350

VI. CONCLUSION: A FEW MODEST SUGGESTIONS TO ASSIST THE FULFILLMENT OF THE COLLATERAL DAMAGE RULE.....................353

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I. INTRODUCTION

Members of armed forces are sent off to war to kill enemy combatants. They are not sent off to kill civilians. Nonetheless, modern wars invariably result in far more civilian deaths than military deaths.¹ This Article examines the collateral damage rule,² one of the central operational rules regulating the conduct of hostilities, that essentially permits civilian casualties only when they are incidental to an attack on a legitimate military target. The rule is explored in light of the changing nature of warfare over the last two centuries including the shifting ratios of military to civilian war-related deaths. The Article ultimately questions the continuing validity of this rule when, in recent decades, the overall statistics for war-related deaths reveal that civilian fatalities are considerably greater than military deaths.

The collateral damage rule, also known as the proportionality rule, is meant to offer protection to civilians in wartime and to give content to the principle of distinction in contexts where military and civilian targets are interwoven.³ That statement reflects the usual assessment of the collateral damage rule but this Article asks whether that assessment simply tricks us into thinking that ethical military advisors, by following the rule, will in fact avoid all but incidental damage to civilians. If the many and varied studies on the ratios of civilian to military war-related deaths reveal disproportionate civilian deaths (as they do) and if the many and varied epidemiological studies reveal war-related civilian displacement, disease, deprivation, and famine (as they do), the Article asks whether the collateral damage rule has become simply an organized deceit to persuade us that condoning the combatant's privilege (permitting solders to kill enemy combatants)⁴ is not signing the death warrant for civilians, except "incidentally." The Article argues that in the context of modern warfare, the collateral damage rule can never accomplish what it purports to do, except in the most temporally restricted sense. It then explores what should be the fate of a legal rule that is central to the laws of armed conflict and cannot, by the nature of the context in which the rule is operative, be effective.

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Trying to determine when there is sufficient armed violence to constitute armed conflict or war is difficult and varies depending on what is being studied. Classifying the different types of armed conflict is controversial and changes depending on the focus of the research. Quantifying military and civilian deaths in armed conflict presents multiple classification problems and much disputed or unavailable data.⁵ Nonetheless, despite all of these difficulties, it has become possible to discern significant trends within the last two centuries. Part II of this Article examines the changes that have taken place, over roughly the last two centuries, regarding the types of wars that occur. Part III focuses on the shifting ratio of military to civilian war-related deaths during this period, noting that we now live in an era where wars result in a hugely disproportionate loss of civilian lives. Part IV traces the history and applicability of the collateral damage rule, also known as the proportionality rule. Part V brings together the data on the changes in the types of wars fought and the shift from mainly military to mainly civilian war-related deaths. Part V further asks what continuing regulatory effect the collateral damage rule can be expected to exert when the data on war-related deaths inevitably indicates that the rule has utterly failed to achieve its purpose. Part VI makes a few modest suggestions that may, in some measure, help fulfill the purpose of the collateral damage rule.

II. THE CHANGING NATURE OF WARFARE

A. The Threshold of War/Armed Conflict

Characterizing different types of armed conflict is difficult and different authors have taken somewhat different approaches. First, there is the question of which armed conflicts are sufficiently serious to be taken out of the category of "internal disturbances and tensions"⁶ and placed into the category of armed conflict. Picking which armed conflicts merit study will often depend upon the issues being researched. Many authors choose a certain level of deaths in armed conflict per year to qualify for inclusion in statistical data. For example, in their seminal book, Resort to War, Meredith Reid Sarkees and Frank Whelon Wayman use the standard of conflict that produces "1,000 [battle-related] deaths per year (or twelve month period)."⁷

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This was the war typology used by Singer and Small in two earlier studies, and is also used by authors such as R.J. Rummel⁹ and many others.¹⁰ It should be noted here that this typology does not address the issue of when international humanitarian law becomes applicable either to international armed conflict—also called inter-state armed conflict—or to non-international armed conflict. That very different question is answered by examining the language of the Four Geneva Conventions: Common Article 2 (inter-state wars and occupation); Common Article 3 (conflict not of an international character); Additional Protocol I, Article 1 (inter-state wars, but including fighting against colonial domination, alien occupation, and racist regimes when exercising their right of self-determination); Additional Protocol II, Article 1 (internal armed conflicts...