Incidentality of the civilian harm in international humanitarian law and its Contra Legem antonyms in recent discourses on the laws of war

Abstract

Abstract This article develops an interpretative effort to clarify the meaning of the notion of incidentality of the civilian harm in international humanitarian law (IHL), with particular concern to the role of this concept as normative cornerstone for a systematic reading, and coherent implementation, of the law of targeting. The article begins with a critical analysis of recent discourses on the laws of war, focusing on the emergence and growth of contra legem uses of the concept of ‘collateral damage’. These discourses revolve around proportionality in attacks, commonly re-translating this rule by removing incidentality as legal qualifier of the civilian harm susceptible of proportionality assessments. The article shows that proportionality misconceptions neglecting incidentality have become so common and accepted as to be often confused with structural features of IHL. On the contrary, the analysis highlights the collisions between these conceptions, on the one hand, and IHL targeting prescriptions, their interplay and protective functions, on the other, unveiling how the former result in promoting unlimited expansions of the entity of civilian harm that can be object of proportionality assessments, even when this civilian harm constitutes the largely preponderant, main anticipated result of a given attack. Within a background of unequal relativization of international humanitarian law (IHL) parameters, minimalist understandings of incidentality have also been the basis of questionable orientations about attacks on residential tower buildings, reproducing exponential ‘militarizations’ of civilian objects (and at times of the protected persons therein) for proximity with lawful targets. Cumulatively, these discourses and scholarly orientations contributing to depriving proportionality of its incidentality requirement continue to produce dramatic consequences for civilian protection worldwide and provide aggressive military powers with arguments functional to circumvent the prohibitions of disproportionate and indiscriminate attacks. Against these tendencies, it is proposed that the notion of incidentality of the civilian harm, in homage to letter, object, and protective purpose of IHL, and understood with the interpretative help of mens rea categories, should be strictly construed and urgently re-centralized by laws of war scholars as a fundamental conditio sine qua non for proportionality assessments and as main dividing line between the operative spheres of distinction and proportionality.