Avoid or compensate? Liability for incidental injury to civilians inflicted during armed conflict.

• Author: Ronen, Yael

ABSTRACT

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. (8)

Article 57 of Additional Protocol I establishes the general obligation of parties to take constant care to spare the civilian population, including individual civilians and civilian objects. (9) It also provides specific precautions that must be taken in this context: those who plan or decide upon an attack must "[d]o everything feasible" to verify that the objectives are legitimate military ones; (10) "[t]ake all feasible precautions in the choice of means and methods of attack" in order to minimize loss of, or injury to, civilian life; (11) give effective advance warning where circumstances permit; (12) and, among equivalent options, opt for the one that is least injurious to civilians while obtaining a similar military advantage. (13) The terms "feasibility" and "reasonableness" cannot be understood in technical terms only. If they were, parties would be required to opt for inaction, which is always feasible and is the only way to truly avoid incidental injury. Accordingly, these terms must be interpreted as setting a normative standard of care. Injury to civilians must be minimized, taking into account all of the circumstances at the time of the attack, including those relevant to the success of military operations. (14) In addition, a party must not carry out an attack which may be expected to cause incidental civilian loss that would be excessive in relation to the concrete and direct military advantage anticipated. (15) The principle of proportionality serves as a base line, in that even when specific precautions have been taken, civilian injury must never outweigh the military advantage anticipated. (16)

The targeted party is also obligated to take precautions against the effects of attack. (17) Article 58 of Additional Protocol I requires the targeted party to endeavor, to the maximum extent feasible, "to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives"; to "avoid locating military objectives within or near densely populated areas"; and to "take the other necessary precautions to protect the civilian population, individual civilians and civilian objects under their control against the dangers resulting from military operations." (18)

Articles 57 and 58 lay down a due diligence standard. They resemble rules of negligence in that international responsibility arises only from failure to comply with a determined standard of care, as reflected in the obligations to take feasible or reasonable precaution. If a party fails to comply with this standard and injury occurs, that party's conduct is regarded as negligent and the party is internationally responsible on the basis of fault. These rules differ from an ordinary negligence rule in that, under the laws of armed conflict, an expectation or even certain knowledge that an attack on a military object would result in injury or death does not automatically imply fault and does not render the attack wrongful, nor does it give rise to international responsibility for the attack.

When the attacking party complies with the precautionary requirements, primarily those of distinction and proportionality, the causation of injury to civilians is regarded as "unavoidable." The attack is not a breach of international law and the attacking party does not bear international responsibility for the resulting injury. (19) Nor is there any other party that is internationally obligated to provide redress to the individual victim. (20) The victim is left to shoulder the loss. This result is morally unsatisfactory. (21) Thus, there have been calls from nongovernmental organizations and academics (22) for a change in policy that would entitle victims of military attacks to compensation, even if the losses sustained are incidental, i.e., unavoidable and proportionate outcomes of attacks on military objectives.

An obligation on parties to compensate all civilian victims of military attacks, even when the injury could not have been avoided by the exercise of due care, is a quasi-strict liability rule. (23) It resembles a strict liability rule in that it places the burden of loss on the injurer regardless of fault. It differs from an ordinary strict liability rule under international law in that the causation of injury does not constitute an internationally wrongful act. (24)

An obligation to compensate all victims of military attacks, including those injured incidentally, (25) is morally laudable, but it is likely to disrupt the existing balance of powers and interests under the laws of armed conflict, and thus requires a more detailed examination. A preliminary issue, explored in Part II, is the conceptual basis for such an obligation. This informs the scope of arguments in support of and in opposition to the proposed obligation. Part III examines the effect of the proposed obligation on the conduct of parties to a conflict. For individual victims, compensation is no substitute for avoidance of incidental injury because monetary compensation can never fully reverse the consequences of personal physical injury. Therefore, if an obligation to compensate is expected to reduce incidental injury, it promises significant benefits to potential victims. If, on the other hand, it has an adverse effect on the protection of civilians, the benefit of an entitlement to compensation must be weighed against the increased risk of loss. A separate question, considered in Part IV, is how to ensure that the liability of the injuring party translates into an effective mechanism for securing compensation.

In the present context, the term "attacking party" refers to the instigator of a specific attack. Both parties to the conflict are invariably attacking parties. The term "military attack" is to be understood in terms of ius in bello rather than in terms of the overall engagement in military action under ius ad bellum. (26) This Article focuses on attacking...