A rejoinder to the incidental civilian harm debate, part II: the untenability of understanding incidental as ‘knowingly and willingly’ killing civilians (no matter how many) without ‘desire’, under ICL

[Luigi Daniele is Associate Professor of International Law at the University of Molise, Italy, where he recently moved after working as Lecturer and Senior Lecturer in IHL and ICL at Nottingham Law School (NTU)]

The first part of this rejoinder has detailed why ‘incidental’, as qualifier of the foreseeable civilian harm object of proportionality assessments, cannot be understood as synonymous of ‘accidental’ or ‘fortuitous’ under IHL. Moving to the other element Sari identifies as criterion to determine what is incidental civilian harm, the author confidently asserts that, under IHL, incidental civilian harm would include all harm to civilians, irrespectively of its calculated magnitude, “inflicted knowingly and willingly, but not as a desired outcome”.

But is desire to kill or injure civilians a tenable concept to discern between incidental and non-incidental civilian harm?

It is not. At all. To address this, we need to turn our attention to the law of war crimes and its mens rea thresholds. As van der Wilt indicated a few years ago, international criminal law (ICL) can (in my opinion must) assist a correct understanding of indiscriminate attacks. In this sense, it is indisputable that lack of desire, under war crimes law, does not come close to excluding intent; in our debate, intent of targeting civilians. Let me explain why.

First, if the dividing line between incidental and non-incidental civilian harm is the desire of commanders, the prohibition of attacks with means or methods of combat which cannot be directed at a specific military objective, or the effects of which cannot be limited by the protocol, are emptied of significance. Any attacker will be able to employ a method or means of attack which, in the circumstances, cannot meaningfully be directed at discrete military objectives, while claiming the desire was solely to hit the lawful target or targets. The impossibility of the means or methods selected to distinguish between target(s) and protected persons will thus be neutralized by the commander’s ability to classify as incidental all the civilian killing that was calculated and accepted, but not primarily pursued.

In short, little if anything of the prohibition of indiscriminate attacks violating distinction under Article 51(4) AP I would remain operative.

Second, and more importantly, since the early 2000s, ICTY judges crucially concluded that

certain apparently disproportionate attacks may give rise to the inference that civilians were actually the object of attack (Galić, Trial Judgement, par. 60).

The judges, in other words, explicitly recognized that the magnitude of the civilian harm (the same Sari proposes to consider irrelevant to qualify civilian harm as incidental) can per se indicate that attackers intended the protected persons and objects to be the object of the attack, at least jointly with the lawful target or targets.

Consistently with the Galić passage mentioned, in the Katanga case (cited by Sari, but curiously not in this much more relevant part), ICC judges affirmed

It must be noted that indiscriminate attacks – proscribed by a rule of custom –may qualifyas intentional attacks against the civilian population or individual civilians, especially where the damage caused to civilians is so great that it appears to the Chamber that the perpetrator meant to target civilian objectives (Katanga, Trial Judgement, par. 802)

Again, the extensiveness of the civilian harm becomes crucial for judges to evaluate whether it is legally necessary to conclude that the civilians and/or the civilian objects were object of the attack.

This alone rules out that we can construe, as Sari proposes, incidental civilian harm irrespectively of its magnitude.

There must be, in other words, some quantitative relation (as an upper limit threshold) with the lawful targets declaredly aimed at, in order to accept that the foreseen harm to civilians was incidental, rather than of such magnitude as to indicate that protected persons were actually the object of the attack.

I do not contend that this quantitative relation must be a categorical numerical equivalence, in every circumstance, as in ‘one lawful target aimed at + one or two protected objects knowingly and willingly damaged = indiscriminate attack’. 

This is a claim on which Sari builds his entire critique, even resorting to a blunt reductio ad absurdum, according to which a RPG attack against an armored military vehicle, launched under the certainty it would have damaged a street light and shattered a few windows, would be, under my reading, if “pressed to its logical conclusions”, an indiscriminate attack. But drowning an argument in irrational extremizations is not the same as pressing it to its logical conclusion. Be it as it may, this extremization relies on my analogical argument with the prohibition of area bombardments, as bombardments violating distinction. In essence, I argued that since horizontal area bombardments are categorically prohibited, the law should not be interpreted as permitting their vertical equivalent in attacks on high-rise towers. I may have communicated this argument ineffectively (I agree that the term ‘similar concentration’ in this prohibition refers to cities, towns, and villages, not to numbers of lawful targets and protected persons), but the problem entirely remains. For the sake of clarity, then, let me insist on what I think is the problem: what happens with, say, a skyscraper with hundreds of flats and offices, crowded with civilians, and a handful of flats used militarily, vertically interspersed among the former, on different floors? Would levelling the skyscraper not share, in essence, the same anti-juridical value as a carpet bombing (i.e. an area bombardment)? Why should it be assessed solely under proportionality, simply because the dense concentration of civilians and civilian objects is disposed vertically rather than horizontally? Sari is among those authors who, on the contrary, would assert that this would exclusively be a proportionality issue, contending that the skyscraper needs to be qualified as a unique, colossal military objective, even on the basis of the military use of merely a single flat in it (see p.45). Following the author’s conception of incidentality, in addition, the inevitable and conscious killing of the civilians in the skyscraper could fully be incidental, if resulting from the use of a weapon system “with some degree of accuracy”, without desire.

In the face of so much destructiveness and killing falling under the usual ‘potentially proportionate’ prism, I would also be less terrified, indeed reassured of debating the problems surrounding the critical legal challenges of damages to streetlights… If only there weren’t thousands of civilians and children killed, and many more mutilated, weekly, by attacks on residential towers, precisely while one writes.

Hence, leaving trivial damages where they should be, that is outside the debate, I do not deny numbers must be a factor in discerning, on the one hand, foreseeable civilian harm that can be deemed to be incidental from, on the other hand, civilian harm expected to be so great as to indicate civilians were actually made object of the attack. Such quantitative considerations, however, should still operate within reasonableness, and alongside other factors, to be deducted from other IHL rules, such as the availability of less harmful means or methods to achieve the same or a comparable, if lawful, military advantage.

While this determination requires further debate and refinement, we have already established that considerations related to the magnitude of civilian harm (in order to qualify it as incidental) are, in any event, mandated by war crimes jurisprudence.

A key to better understanding this issue lies in the above-cited paragraph of the Katanga case. While insisting on the extent of the calculated harm to civilians, the judges also invoke, in the same paragraph, the concept of ‘primary object’ of the attack, in relation to the civilians knowingly struck.

However, and this is crucial, making someone or something the primary object of an attack does not mean having the primary purpose of doing so.

Making civilians the primary object of attacks can fully refer, indeed can only refer, in my opinion, to attacks in which the overwhelming majority of the persons knowingly and willingly struck was protected.

In contrast, the concept of primary purpose is central to another type of situations, analyzed in the ICTY jurisprudence in relation to the crime of terror. First, judges noted that the crime was also configurable in cases of indiscriminate and disproportionate attacks:

(“The acts or threats of violence constitutive of the crime of terror shall not however be limited to direct attacks against civilians or threats thereof but may include indiscriminate or disproportionate attacks or threats thereof”.

Galić, Appeals Judgement, par. 102)

The ICTY judges also made clear that this crime indeed required a primary purpose of terrorizing civilians (see Galić, Trial Judgement, par. 136, and Dragomir Milošević, Trial Judgement, par. 970). This primary purpose thus takes the form of dolus specialis. 

Indisputably, unlike the old crime of terror at the ICTY, the crimes of direct attacks on civilians and/or civilian objects in the Rome Statute articles 8(2)(b)(i) and (ii) do not require any special intent.

In the elements of the relevant crimes, it is required 1) that the perpetrator directed an attack, 2) that objects of the attack were protected persons and/or objects, and 3) that the perpetrator intended them to be the object of the attack. The elements of the crimes (see recently Dill and Dannenbaum, p.663), do not require that the perpetrators had the primary purpose of making the civilians the object of the attack, nor that they wished for the injuring or killing of the relevant protected persons, and/or the destruction of the relevant protected objects.

Sari’s insistence on desire, on the wish to affect civilians in an attack, and the lack thereof as sufficient to qualify civilian harm as incidental, is therefore surprising and perplexing.

International criminal jurisprudence has clarified that the mens rea threshold sufficient to perfect Rome Statute crimes, including the crimes of intentional attacks on civilians and/or civilian objects, is not confined to direct intent. Volition is by no means the only component of the state of mind of the suspect to be relevant, as if we should totally and categorically exclude calculus, even when based on absolute moral indifference or callous disregard for civilian lives.

Conversely, the ICC has on multiple occasions concluded, at both trial and appeals level, that the notion of intent does not only encompass volition (as in the case of direct intent, purposeful will, desire) but also cognition (including knowledge, expectation, calculus).

In the Bemba Confirmation of Charges decision, judges importantly affirmed (par. 359)

Dolus directus in the second degree does not require that the suspect has the actual intent or will to bring about the material elements of the crime, but that he or she is aware that those elements will be the almost inevitable outcome of his acts or omissions […] In this context, the volitional element decreases substantially and is overridden by the cognitive element, i.e. the awareness that his or her acts or omissions ‘will’ cause the undesired proscribed consequence.

In the Lubanga Appeals Judgement, clarifying the standard of foreseeability necessary to perfect intent, it was stated (par. 447)

the words ‘[a consequence] will occur’ refer to future events. The verb ‘occur’ is used with the modal verb ‘will’, and not with ‘may’ or ‘could’. Therefore, this phrase conveys, as does the French version, certainty about the future occurrence. However, absolute certainty about a future occurrence can never exist; therefore, the Appeals Chamber considers that the standard for the foreseeability of events is virtual certainty.

Calculus, corresponding to the cognitive component of intent, is indeed at the heart of both the IHL targeting prescriptions and war crimes law and jurisprudence.

While Sari’s objections ultimately treat “incidental” as the negative of desire—of purpose—neither IHL nor war crimes law constructs the concept that way. ‘Incidental’ is not simply every civilian harm that remains once direct intent is excluded; it is a legal qualifier of harm to civilians that draws a line between violations of distinction and violations of proportionality. If “incidental” just meant undesired, the treaty could have said so. Instead, it consistently links the term to foreseeability (“may be expected to cause”), excessiveness, and total avoidance of the relevant harm, even when not excessive, subject to feasible precautions. That language is in no way about desire; it is about cognition and evaluation.

An attacker may not specifically desire to massacre hundreds or thousands of civilians and yet knowingly and willingly do so, utterly disregarding the value of their lives. This legally amounts to intent, in ICL terms. Sari’s interpretation, in other words, would surreptitiously morph the crimes of direct attacks on civilians into crimes confined to purposeful will to kill and/or injure the civilians themselves, effectively pushing their mens rea threshold to an intermediate point between direct and special intent. This irremediably clashes with the fact that indirect intent, in the form of virtual certainty that masses of civilians will be made the object of the attack, is entirely sufficient as mens rea imposing convictions for the crime of intentionally directing attacks against civilians.

This does not mean that every time a commander is sure the attack will also impact significant numbers of civilians alongside the lawful targets, then the attack will always be an indiscriminate attack, and always amount to an intentional attack on civilians (reproducing what Ohlin once contended in relation to recklessness). Incidentality becomes crucial in these instances, allowing, on the contrary, to adjudicate the relevant attack under the interplay of the IHL targeting rules (better captured, in my opinion, by this intent breakdown by Heller, and by Haque in his comments), in the circumstances of each case. The relevant indirect intent becomes decisive only when the foreseeable civilian harm was so extensive as to turn the presence of lawful targets into (let me simplify) a fig leaf, concealing the attacker’s unlawful willingness to strike entire concentrations of protected persons and objects, primarily and indiscriminately.

Under Sari’s reading, paradoxically, in these cases, the attackers’ state of mind lacking desire to kill the masses of civilians they have knowingly and willingly killed would exclude indiscriminate attacks under IHL… And yet (under the ICC jurisprudence mentioned) would be simultaneously sufficient to perfect the crimes of intentional attacks on civilians and/or civilian objects under ICL.

This is obviously untenable and represents the breaking point of all the interpretative structure proposed by Sari, one that would substantially abrogate, as demonstrated in this post, not only most of the prohibition of indiscriminate attacks, but even crucial elements of the war crimes of direct attacks on civilians and civilian objects, and the very jurisprudence of the ICC about intent (those interested in the issues discussed will find more about it in this monograph).

As a final note, in the face of wars becoming tools of depopulation of entire swaths of land for annexing powers determined to denationalize their peoples, with the Commander in Chief of the first world military power publicly threatening the death of “entire civilizations” in one night, and his Secretary of War dismissing so-called “stupid rules of engagement”, I doubt any sector of our discipline should, in this moment, be preoccupied with the presumed dangers of excessively protecting civilians and rendering armies’ operations “all but impossible”. To be frank, this concern could hardly be more divorced from current war realities, at the very antipode of what authors set to defend the merits of positions “tempered by pragmatism” should do.

We are not dealing with war in a “not ideal world”, as Sari suggests with a rather euphemistic truism. We are dealing with the most catastrophic collapse of civilian protection, and accountability, in decades. This catastrophic collapse critically interrogates the arguments and the approaches of the sectors of our discipline with the closest professional ties to the relevant armies, and no amount of theoretical, military necessity-centric speculation about rendering war impossible to wage can obscure a reality in which wars are making the very survival of entire civilian populations on their land all but impossible. If anyone thinks to be striking any ‘balance’ between military necessity and humanity by unseeing the latter, then it is likely the scales they are using are essentially broken.