Avoid or Compensate? Liability for Incidental Injury to Civilians Inflicted During Armed Conflict

Abstract

Under international law, civilians suffering injuries that are incidental, that is unintentional and proportionate, 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, which would entitle victims of military attacks to compensation, even if their losses sustained are incidental and non-fault based. Such a quasi-strict liability rule, while morally laudable, is likely to disrupt the existing balance of powers and interests under the laws of armed conflict and therefore requires close examination. This article begins with an exploration of the conceptual basis for such an obligation, which informs the scope of arguments in support of and opposition to the proposal. It then examines the effect of a strict liability rule on the conduct of parties to a conflict, taking into account that for individual victims, avoidance is always preferable to compensation. This examination is based on an economic analysis. A final question is how to ensure that the liability of the injuring party translates into an effective mechanism for securing compensation. The article concludes that if the moral commitment to victims justifies a strict liability rule, considerations of utility require and can be met with a fine-tuning of the obligation and its implementing mechanisms