Avoid or Compensate? Liability for Incidental Injury to Civilians Inflicted During Armed Conflict
Under international law, civilians suffering injuries that are incidental 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 that would entitle victims of military attacks to compensation, even if their losses are incidental and non-fault-based. This Article explores the notion of such a quasi-strict liability rule, which is likely to disrupt the existing balance of powers and interests under the laws of armed conflict. Following an exploration of the conceptual basis for such an obligation, the Article examines the effect of a strict liability rule on the conduct of parties to a conflict, inter alia through economic analysis. A final question is how to ensure that the liability of the injuring party translates to an effective mechanism for securing compensation. This Article concludes that if the moral commitment to victims justifies a strict liability rule, considerations of utility require a fine-tuning of the obligation and its implementing mechanisms.