The Tribunal dismissed charges that General Lothar Rendulic unlawfully destroyed civilian property via a "scorched
earth" policy because "the conditions, as they appeared to the defendant at the time were sufficient upon which he could
honestly conclude that urgent military necessity warranted the decision made." Current norms for protection (and
destruction) of civilian property: Do not destroy real or personal property of civilians "except where such destruction is
rendered absolutely necessary by military operations. (GC, art. 53.) It is "forbidden . . . to destroy or seize the enemy's
property . . unless demanded by the necessities of war." (HR, art. 23g.)
There may be situations where because of poor intelligence or the failure of the enemy to abide by the law of
war, mistakes are made concerning the status of a site: Example: Al Firdus Bunker. During the Persian Gulf War,
planners identified this bunker as a military objective. Barbed wire surrounded the complex, it was camouflaged, and
armed sentries guarded its entrance and exit points. Unknown to coalition planners, however, Iraqi civilians used the
shelter as nighttime sleeping quarters. The complex was bombed, resulting in 300 civilian casualties. Was there a
violation of the law of war? No. Based on information gathered by coalition planners, the commander made a reasonable
assessment that the target was a military. Although the attack unfortunately resulted in numerous civilian deaths, (and
that in hindsight, the attack might have been disproportionate to the military advantage gained--had the attackers known
of the civilians) there was no international law violation because the attackers, at the time of the attack, acted reasonably.
See DEPARTMENT OF DEFENSE, CONDUCT OF THE PERSIAN GULF WAR, FINAL REPORT TO CONGRESS 615-16 (1992).
Principle of Unnecessary Suffering or Humanity - "It is especially forbidden . . . to employ arms, projectiles or
material calculated to cause unnecessary suffering." (HR, art. 23e.) This concept also extends to unnecessary destruction
of property. Combatants may not use arms that are per se calculated to cause unnecessary suffering (e.g., projectiles filled
with glass, irregularly shaped bullets, dum-dum rounds, lances with barbed heads), and may not use otherwise lawful
arms in a manner that causes unnecessary suffering; for example, with the intent to cause unnecessary suffering.
Principle of Proportionality - The anticipated loss of life and damage to property incidental to attacks must not be
excessive in relation to the concrete and direct military advantage expected to be gained. (FM 27-10, para. 41, change 1.)
Protocol I. Under GP I, Article 51 (Protection of the civilian population), paragraph 5(b) prohibits "indiscriminate
attacks," defined in part as an attack where incidental injury to civilians or incidental damage to civilian objects would be
"excessive in relation to the concrete and direct military advantage anticipated." Under GP I, Article 57 (Precautions in
the attack), paragraph (2)(b) requires planners to cancel an attack in the same circumstances. The U.S. considers these
provisions customary international law.
Example: During Operation Allied Force, Serbian civilians painted red targets on themselves and congregated on key
bridges over the Danube River. These bridges were military objectives because they enabled the Serbs to quickly
transfer military forces. The Commander making the targeting decision had to balance the concrete and direct military
advantage gained by destruction of the bridge against the anticipated number of civilian deaths resulting from the attack.
Incidental Injury and Collateral Damage. Collateral damage consists of unavoidable and unplanned damage to
civilian personnel and property incurred while attacking a military objective. Incidental (a/k/a collateral) damage is not a
violation of international law. While no law of war treaty defines this concept, its inherent lawfulness is implicit in
treaties referencing the concept. As stated above, GP I, Article 51(5) describes indiscriminate attacks as those causing
"incidental loss of civilian life . . . excessive . . . to . . . the military advantage anticipated."
Judging Commanders. It may be a grave breach of GP I to launch an attack that a commander knows will cause
excessive incidental damage in relation to the military advantage gained. The requirement is for a commander to act
reasonably. Those who plan or decide upon an attack, therefore, must take all reasonable steps to ensure not only that the
objectives are identified as military objectives or defended places . . . but also that these objectives may be attacked
without probable losses in lives and damage to property disproportionate to the military advantage anticipated. (FM 27-
10, para. 41.)
In judging a commander's actions one must look at the situation as the commander saw it in light of all
circumstances. See A.P.V. Rogers, Law on the Battlefield 66 (1996) and discussion of the "Rendulic Rule," above. But
based on case law and modern applications, the test is not entirely subjective--"reasonableness" implies an objective
element as well. In this regard, two questions seem relevant. First, did the commander reasonably gather information to
determine whether the target was a military objective and that the incidental damage would not be disproportionate?
Chapter 2
5
Law of War
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