Chapter 14 Compensation for civilian casualties in armed conflicts and theory of liability

• DOI: https://doi.org/10.1108/S1572-8323(2010)0000014018
• Date: 08 July 2010
• Published date: 08 July 2010
• Pages: 243-259
• Author: Minako Ichikawa Smart

CHAPTER 14

COMPENSATION FOR CIVILIAN

CASUALTIES IN ARMED

CONFLICTS AND THEORY

OF LIABILITY

Minako Ichikawa Smart

ABSTRACT

Purpose – The purpose of this chapter is to highlight the current

limitations in compensating the civilian victims of armed conf‌licts and to

examine the possibility of extending this practice.

Methodology/approach – The f‌irst half of the chapter employs legal and

political analysis of the current framework of international law and the

practice of the United States. The latter half of the chapter examines the

literature on theory of liability in economics and philosophy.

Findings – The framework of international law, which does not require

compensation for the victims of lawful attacks, is increasingly at odds with

the current trend in which military force is used by a powerful state against

a much weaker state on the grounds that the local population would benef‌it

from the operation. The system developed by the United States is the most

extensive and can form a model for other states and international

institutions. Keating’s analysis of enterprise liability can be applied to

compensation of victims in military operations that are deemed to be

Economics of War and Peace: Economic, Legal, and Political Perspectives

Contributions to Conf‌lict Management, Peace Economics and Development, Volume 14, 243–259

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ISSN: 1572-8323/doi:10.1108/S1572-8323(2010)0000014018

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benef‌icial to the population. Economic analysis, on contrary, suggests that

compensation of civilian victims has minimal effect on the level of risks.

Originality/value – This chapter makes a unique contribution by applying

theory of liability to a situation that widely diverges from the context in

which the theory has developed. It critically examines the current practice

and proposes a morally preferable and economically sustainable

alternative model.

INTRODUCTION

Minimising civilian casualties and providing remedies for civilian victims

have become essential elements of recent military operations in Iraq and

Afghanistan. Although these practices are developing among states

participating in international military operations, compensation scheme

coverage is limited, and there is a lack of coordination among states

participating in the same operation (Human Rights Watch, 2009;Campaign

for Innocent Victims in Conf‌lict [CIVIC], 2008). One reason for insuff‌icient

compensation is that the current framework of international law does not

require compensation for the damage caused by incidental and proportional

attacks (i.e. ‘collateral damage’). Another reason is that states are reluctant

to admit legal liability for damages caused in armed conf‌lict. Most states

provide compensation only when negligence has been established and offer

limited amount of payment variously called ‘condolence’ or ‘ex-gratia’

payments (Human Rights Watch, 2009;CIVIC, 2008). Even in the United

States, which allows compensation on the basis of causation rather than

negligence, many civilian victims are denied compensation as the claims

caused by ‘combat activities’ are precluded, as discussed later.

This chapter challenges these assumptions limiting the practice of civilian

compensation by the following methods. The chapter f‌irst outlines the

framework of international law and then examines the compensation

mechanism developed by the United States, which provides the most

extensive remedy for civilian victims, with a specif‌ic focus on the clause of

‘combat exclusion’. The latter half of the chapter investigates the literature

on tort liability to propose that analysis of both economic and philosophical

aspects of tort liability supports compensating all civilian victims without

regard to negligence on the part of the injurer, particularly in the case of a

military operation where a powerful state uses force against a much weaker

state that has not initiated the conf‌lict.

MINAKO ICHIKAWA SMART244