MILITARY COLLATERALS AND IUS IN BELLO

By Jann K. Kleffner*

I. INTRODUCTION

The law of armed conflict provides that wounded, sick and shipwrecked military personnel as well as military medical and religious personnel (hereafter referred to as protected military persons) shall be respected and protected in all circumstances. Yet, neither conventional nor customary law of armed conflict specifically addresses the question whether and to what extent such military personnel is protected against incidental harm that can be expected to be caused to them by an attack against a lawful target. Do those who plan or decide upon an attack against a group of enemy combatants who have in their midst a number of military wounded from a previous attack have to take into account incidental harm to those wounded? May an attack on a command post that is placed next door to a field hospital be carried out regardless of the incidental harm to protected military persons that may be expected? What are the legal requirements for an attack on a retreating convoy of enemy forces which also contains military medical vehicles that transport military wounded? How, in short, does the law of armed conflict strike a balance between, on the one hand, the right of belligerents to attack lawful targets, and, on the other hand, their obligation to extend respect and protection to protected military persons in all circumstances?

In the realm of the protection of civilians and civilian objects, the law of armed conflict strikes that balance in the form of the principle of proportionality, which provides that an attack on a lawful target becomes unlawful if it may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. Proportionality in the law of armed conflict manifests itself in a number of rules, chiefly the prohibition of indiscriminate attacks, certain precautions in attack and the crime criminalizing a violation of the prohibition. Yet, nothing in the conventional law of armed conflict suggests that proportionality equally governs incidental harm to protected military

* Professor of International Law and Head of the Centre for International and Operational Law, Swedish Defense University. The author wishes to thank Isak Malm for his assistance.

43 44 ISRAEL YEARBOOK ON HUMAN RIGHTS persons; nor can one deduce from customary law of armed conflict such a rule. This absence of regulation has led to diverging views as to how the law of armed conflict is to strike the aforementioned balance between the right of belligerents to attack lawful targets, and their obligation to extend respect and protection to protected military persons in circumstances where an attack on a lawful target entails the risk of incidental death or injury of military protected persons. The present inquiry offers one such view and argues that proportionality has a role to play by virtue of the fact that it is a general principle of the law of armed conflict.

After a brief recount of the pertinent treaty (Section II) and customary (Section III) rules on proportionality, this article examines the notions of _ _ ‚Section IV) as well as the obligation to respect and protect the latter in all circumstances (Section V). The subsequent section then turns to the question how the aforementioned obligation can be reconciled, if at all, with the absence of protected military persons from the collateral damage side of the proportionality equation (Section VI). In Section VII, it is argued that proportionality as a general principle of the law of armed conflict provides a legal framework for such reconciliation, followed by some observations on the operational feasibility and practical application of such a principle that includes protected military persons into the collateral damage side of the proportionality equation (Section VIII).

II. CONVENTIONAL LOAC

All treaty provisions pertaining to the requirement that attacks be proportionate make it clear that the calculus is between military advantage, on the one hand, and civilian life and injury and damage to civilian objects, on the other hand. In the words of Article 51 (5)(b) API, a disproportionate attack is one that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.1 The pertinent parts of the rule on precautions in attack in AP I2 are couched in identical terms. In conjunction with Article 50

1 See also subsequent treaty provisions, such as the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended on 3 May 1996 (Protocol II to the 1980 Convention as amended on 3 May 1996) (adopted 3 May 1996, entered into force 3 Dec. 1998) 35 I. L. M. 1206 art. 3 (8)(c); Rome Statute of the International Criminal Court (adopted 17 Jul. 1998, entered into force 1 Jul. 2002) 2187 U.N.T.S. 3 art. 8 (2)(b)(iv). 2 Protocol Additional to the of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (adopted 8 Jun. 1977, entered into force 7 Dec. 1978) 1125 U.N.T.S. 3 ƒAdditional Protocol I„ art. 57 (2)(b).