Reckless endangerment warfare

Abstract

This article examines how military organizations that are generally committed to following the laws and customs of war exploit what the author terms ‘the collateral damage exemption’, by employing legally-sanctioned war-fighting strategies that result in significant numbers of civilian casualties. This exemption shields combatants from legal liability for ‘incidental’ or ‘inadvertent’ civilian losses and the destruction of civilian objects that may occur during lawful actions. The author argues that military strategies which promote the use of overwhelming force under conditions that are likely to adversely affect the civilian population on a significant scale push the boundaries of legal behavior. Under these conditions, collateral damage is not inadvertent, but the calculated results of policy decisions. Most academics, journalists, and political leaders focus on blatant violations of International Humanitarian Law (IHL), for example, deliberate attacks on civilian populations. However, these actions are in many ways the least interesting from both a policy and scholarly perspective. This is because such violations are usually unambiguous, easily detected, and difficult to defend. More insidious are practices that deliberately straddle the line between legitimate action and violation by exploiting the collateral damage exception to IHL. This article demonstrates that high rates of civilian casualties that occur under the shroud of legality threaten the integrity of the laws and customs of armed conflict.