Collateral Damage and the Enemy
Sari, A; Tinkler, K
Date: 9 April 2019
Journal
British Yearbook of International Law
Publisher
Oxford University Press (OUP)
Publisher DOI
Abstract
The purpose of this paper is to determine whether a party to an armed conflict is
bound to ensure that any incidental harm it may cause to enemy military personnel
not or no longer liable to attack remains below a certain threshold. While the law of
armed conflict provides that incidental harm to civilians must not be excessive ...
The purpose of this paper is to determine whether a party to an armed conflict is
bound to ensure that any incidental harm it may cause to enemy military personnel
not or no longer liable to attack remains below a certain threshold. While the law of
armed conflict provides that incidental harm to civilians must not be excessive in
relation to the military advantage anticipated from an attack, the relevant treaty rules
are silent on the position of protected enemy personnel. This could indicate that
protected enemy personnel may be exposed to incidental harm without any
limitations. However, this position is difficult to reconcile with the humanitarian
considerations that motivate the law of armed conflict. Alternatively, this silence may
hint at a gap in the treaties, though not necessarily in the customary rules governing
the conduct of hostilities. If so, commanders would be left guessing what degree of
collateral damage is permissible, which in the absence of clarifying the applicable rules
may lead them to break the law inadvertently. Based on a detailed assessment of the
law, State practice and the competing arguments put forward in the literature, we
conclude that the principle of military necessity, more specifically the prohibition of
causing unnecessary destruction, as complemented by the duty to ‘respect and protect’ certain classes of enemy personnel, imposes an obligation on belligerents to reduce
the level of incidental harm inflicted on protected enemy personnel to what is
unavoidable and to justify that harm with reference to the military benefit anticipated
from an attack. We term this the ‘non-civilian proportionality rule’. Based on our
analysis, we believe that the non-civilian proportionality rule is a necessary part of any
targeting process that attempts to reconcile humanitarian imperatives with operational
requirements during times of armed conflict. The rule achieves this by safeguarding
protected enemy personnel from disproportionate, and thus unnecessary, incidental
harm without, however, unduly impairing an attacking party’s freedom of manoeuvre
against the enemy. By developing these arguments in some depth, our aim is to
provide a more compelling conceptual foundation for applying proportionality
considerations to protected enemy personnel and thereby bring clarity to those
planning, authorizing, executing and advising on targeting in current and future
operations.
Law School
Faculty of Humanities, Arts and Social Sciences
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