Kenneth Roth, Executive Director
Human Rights Watch
1630 Connecticut Avenue, N.W., Suite 500
Washington, DC 20009

January 17, 2007

Dear Mr. Roth:

This letter is sent to request your participation in a meeting of experts on international humanitarian law / law of war which is being organized to discuss a change in that law. The change involves providing civilians with proper legal protection from foreseeable collateral damage during armed conflict. Please seriously reflect on what follows and on your organization’s involvement.

As we all know, civilians bear the brunt of the brutality of armed conflict. The brutal nature of their loss derives not only from the enormous numbers of civilians and civilian objects destroyed, and not merely from the awareness that what is being destroyed is innocent, but also – indeed, primarily – from the fact that much of this extensive destruction of innocents is allowed under the law. Despite the fact that the law requires a balancing test meant to reduce foreseen harm to civilians, and despite the fact that military planners take seriously their responsibility to limit expected civilian harm, we cannot escape the truth that our law, as now written, nevertheless permits an abhorrent practice – the knowing killing of the innocent – and that this practice results in a measure of civilian harm that should be unacceptable in our modern era.

Many claim that the world has never seen a more humane law of war than that which we have now. And this is true. Many claim that if the laws we have now were actually obeyed, much of the civilian harm now occurring would be avoided. And this is also true. Yet even assuming perfect adherence to the current laws of war, we are still left with one very incongruous rule, the rule which permits lawful killing of innocent noncombatants. Put this way, our law does not seem very humane after all.

As with many other significant changes in the law, this one will be strongly resisted. Much of the resistance will be in the form of assertions that such a change will make it impossible for militaries to fight each other. The claim will be that military necessity renders foreseeable civilian harm unavoidable, unfortunate but unavoidable. We must take the time, however, to envision a world in which civilians are offered genuine legal protection from foreseeable collateral damage. If we do so, we will also see a world in which professional militaries will nevertheless devise means to combat one another. The history of the world’s armed forces is one of adaptation to new and different laws and, given the chance to rise to another challenge – a challenge that codifies our highest aspirations for protecting noncombatants – armed forces most certainly won’t fail to develop new techniques and tactics. It is clear that military leaders and frontline troops must genuinely accept a law if there is to be any hope for its voluntary observance in battle. It is not unreasonable to expect that, given both the proper rationale and the proper training, militaries might even embrace a rule which gave them unambiguous justification for operating in ways which save civilians from known harm.

The ICBL and ICC campaigns were successful in large part due to their humanitarian focus and insistence on stringent legal provisions. A “total civilian immunity” campaign would strive towards an equally humanitarian goal and would likewise demand stringent rules rather than broad, general principles.

Please consider this issue and your organization’s role in initiating a meeting of experts. At the very least, a meeting of humanitarian and military experts could be convened initially to consider battlefield applicability of a rule banning foreseeable collateral damage.

Enclosed is additional information. Thank you very much for your time and consideration. As a key actor in humanitarian rights and international law, your participation is particularly important. Please consider this request with the utmost seriousness.

Sincerely,

D. Eugene Bahn

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ADDITIONAL INFORMATION: Campaign for Total Civilian Immunity

The following information explains why a campaign to change international law is necessary, why now is the time to begin the campaign, and why your organization should be involved.

A. Why

1. Thesis

Civilians deserve bona fide protection from harm due to armed conflict yet current provisions in international humanitarian law / law of war do not provide rules stringent enough to supply such protection; the law, consequently, must be changed.

2. Overview

Numerous declarations of world governing bodies and of international NGO’s state that respect for humanitarian rights is a paramount interest in world affairs. These statements along with both customary and codified law demand the protection of noncombatants during armed conflict. What passes for protection is provided by the principle of “immunity from attack.” Direct attack, however, is not the only way that innocent civilians are harmed. Even if the armed forces and militias of the world were to adhere to the immunity principle and to the current laws derived from it, unacceptable numbers of civilian lives and property would nevertheless be lost, and civilian suffering would still continue unabated. The source of such suffering is the general balancing test currently written into our laws.

The balancing test, produced by the twin concepts of necessity and proportionality, continues to be used as justification – even by professional armed forces of advanced nations – for horrendous harm done knowingly to noncombatants. This harm is accepted and brushed aside, designated as “collateral damage.” The lawmakers of the world community have placed the wellbeing of millions of noncombatants – all potential casualties – in the hands of those whose chief responsibility is to use violent means to destroy an enemy. One cannot continue to believe that civilians are offered any sort of true protection by armed forces which have the primary objective of winning the battle. It is incongruous.

The fate of innocent noncombatants must no longer be left to the battlefield decisions of planners who seek to balance their own specific duty to succeed against an armed foe with the broad, general ROE of “minimizing” civilian damage. Far from providing protection, necessity and proportionality provide for certain destruction for those unfortunate enough to live or work or go to school near battle zones. These innocents do not get to choose where the soldiers fight; they do not get to choose how much force is used. Their futures are in the hands of people whose hands are tied because, under current law, the commanders have no real duty to spare them. Necessity and proportionality obligate military personnel only to minimize civilian harm, to protect them “if possible.” Their mandate is: Win the battle at all costs; save the civilians if possible.

As stated by Human Rights Watch on their International Justice web page, the 20th century was the “bloodiest century in human history . . . .” Most of that blood was civilian, and though not all was due to collateral damage, much of it was. It is not necessary here to list all the statistics from all the sources which delineate all the suffering experienced by innocent noncombatants in recent times. What is necessary is to take seriously all the broad statements about the primacy of humanitarian rights and civilian protection and to begin to formulate a new law which will honor those sentiments with stringent code. We cannot continue to accept law which permits so much innocent destruction. Foreseeable harm to civilians and civilian objects has no military utility. Saving innocent civilians has the highest humanitarian value. Our written law must strike the correct balance.

3. Arguments for a new law providing total civilian immunity

Here is a selection of the numerous arguments which exist for creating new law which would offer civilians bona fide protection from foreseeable destruction due to armed conflict.

• MILITARIES ARE FULLY CAPABLE OF ADAPTING TO SUCH A LAW We must not fail to act because of a faulty belief that soldiers will not be able to fight each other under such a law. When we require the world’s armed forces to spare civilians from foreseeable harm “at all costs,” not just “if possible,” they will adapt. They most certainly will be able, and will continue, to find ways to fight. Militaries are used to changes in the law and their rules of engagement. The entire history of armed force is one of adaptation to new weapons and new rules. Even if civilians are given true, total immunity from foreseeable harm, soldiers will still be able to envision ways to engage one another effectively to secure the interests of their governments.

• OUTLAWING TYPES OF WEAPONS DOESN’T DO ENOUGH
  Efforts made to outlaw certain types of weaponry or their use against civilians (chemical, biological, napalm, landmines) are significant in that they save many lives, avoid much needless debilitating injury and live up to high moral standards. Nevertheless, millions of people continue to die from weapons which continue to be legal. If we do not better regulate the way in which legal weapons are used, we fail to do enough for civilians.

• HUMAN COSTS
  Current law permits the killing of innocent noncombatants based upon a balancing test. Because the law gives this permission, the balance is often struck in favor of proceeding with attacks on military targets despite the foreseeable certainty of significant civilian losses.

  Many sources report that nearly 90% of the victims of modern armed conflict are civilian. The World Health Organization’s year 2000 report indicates that over 95 million civilians were killed by armed conflict in the 20th century. Journalists who risk their own wellbeing to cover the humanitarian crises suffered by civilians worldwide, military personnel who witness the horrific results of decisions resulting in collateral damage, as well as the observers and investigators of international NGO’s can all confirm that the balancing test of current international law belies, in practice, the universal humanitarian rights declared to be the birthright of everyone. Page after page of statistics and incident reports could be included here. Suffice it to say that civilians, those who have no ability to control the “if’s,” “when’s,” “where’s” or “how’s” of armed conflict, bear the brunt.

• CURRENT LAW ALLOWS FOR BIGGER HUMANITARIAN CRISES
  Numerous other problems faced by the world community during armed conflict – e.g. refugees, IDP’s, transport and delivery of humanitarian aid, – are all compounded by the result of permitting foreseeable civilian harm. These are costs which are avoidable given a stringent law genuinely protecting civilians.

• COLLATERAL DAMAGE INCREASES INCIDENTS OF PTSD
  The current legal regime creates numerous opportunities for combat soldiers to witness the killing and wounding of (literally) untold numbers of innocent civilians. The sights, sounds and smells experienced by soldiers leave lasting scars. These soldiers are not saved from psychological trauma merely because they “did not intend” to kill the civilians. Soldiers who see what their bombs and bullets “incidentally” do to women and children and the elderly are left with indelible memories which often haunt them, and continue to hurt them, long after the conflict is over. Once the target is attacked, the “incidental” damage does not stop with the noncombatants lying around dead and wounded; the post-conflict suffering of the combatants, which endures for lifetimes, is also included in that collateral damage. It is another avoidable human cost.

• NO MILITARY UTILITY
  It is impossible to argue that collateral damage has any military utility. In fact, the more death and destruction experienced by civilians, the worse it is for invading or occupying forces attempting to “win the hearts and minds” of local populations. For this reason, counterinsurgency manuals highlight the importance of minimizing collateral damage. The logic of “if some’s good, none’s better” holds true for these operations.

  Often when thinking about collateral damage a scenario is proffered which pits, say, a military communications station against a few square blocks of residential neighborhood. On the page, a scenario which sets up the balance in this way seems reasonable; that is, many people would accept that it is worth the civilian losses to take out the enemy communications. During the course of an armed conflict, however, there are not just a few of these scenarios which require the balancing test, but rather there are hundreds or thousands of such decisions to make. In real life, scenario after scenario after scenario adds up to massive foreseen civilian casualties.

• MILITARY FUTILITYM
  History has shown numerous examples of fields or hills or cities or islands which have been brutally fought over, taken, occupied – then abandoned or lost again. Why should countless innocents have their lives destroyed for such momentary military advantage?

• COLLATERAL DAMAGE DURING URBAN FIGHTING
  It makes no sense to have laws prohibiting certain siege tactics which are meant to protect civilians who are intermingled with armed forces and not have a law protecting civilians during other forms of “taking a village.”

• LEGAL GAP-FILLING IS A CONTINUAL PROCESS
  The history of the modification of IHL / LOW has been to attempt to fill the gaps in the protection afforded to protected classes. A large class continues to need protection: civilians near legitimate military targets. It is still possible to fill that gap with a law which places civilians “out of bounds.”

• THE CONCEPT OF IMMUNITY IS LIP SERVICE
  Immunity says civilians cannot be intended targets. The distinction based upon intended targets is meaningless to countless dead people. Immunity from targeting is worse than an empty promise of protection; for many it’s a lethal insult: “We cannot intentionally cause you harm by targeting you, but we can knowingly crush your home and your very life if we anticipate some military advantage.”

• PROPORTIONALITY IS PREPOSTEROUS
  The concept of proportionality is problematic due to a fundamental flaw. The flaw is the fact that the military advantage spoken of in its definition is based on a “best guess.” Military action which will – often without a doubt – result in civilian casualties is permitted merely when the military “anticipates” some advantage. There is too much “wiggle room” in this wording.

• THE LEAST WE CAN DO IS OUR BEST – OUR LAW MUST REFLECT OUR BEST MORAL POSITION
  Though a law providing total immunity to civilians from foreseeable military harm will be violated, this is no reason not to have the law. To date, the world community has been unsuccessful in preventing aggressive war. Putting aside all the complicated reasons for this truth, it is also true that the least we can do is to do our utmost to be sure our written laws provide real protection for those who do not fight.

• CURRENT LAW IS TOO LITTLE TOO LATE
  Current law creates an environment in which we are forced to try to help civilians who have already been harmed (orphans, refugees, IDP’s, etc.) rather than putting them off limits from the start. We must decide to be proactive rather than reactive if we seek to protect civilians from harm.

• THE FACT THAT LAWS ARE VIOLATED IS NO REASON NOT TO HAVE ADEQUATE LAWS
  Even though robberies and murders take place every day we would never imagine not having laws against such behavior. Likewise, even though some collateral damage to civilians would certainly occur, we should never have imagined not having a law which gives civilians total immunity from foreseeable harm. Our laws must reflect our very best moral position.

• MILITARY DECISIONS ARE RARELY QUESTIONED
  The law must provide a clear, stringent rule rather than a balancing test because military decisions are seldom questioned. Even in the rare instance that a commander’s decision (to attack a target despite foreseeable civilian harm) is questioned, the fact-finders have a difficult, if not impossible, time second-guessing what all the facts and circumstances were for the commander. In other words, even if the commander’s decision was wrong and led to excessive (disproportionate) innocent deaths or failed to provide a military advantage, the likelihood of knowing that, and learning from it, is almost nonexistent.

• ECONOMIC COST
  The real costs of collateral damage also include loss of income and total loss of livelihood for many. When attacks occur, those who survive are often faced with loss of their business, their field or farm, or their job. Injuries received often make it impossible for the injured to earn at a level near that which they were earning prior to the attack. Sometimes the bread-winner of the entire family is killed or entirely disabled.

• SOCIAL COST
  In many countries there is a strong stigma involved in “not being whole.” People who have been maimed, lost limbs or been badly scarred become near outcasts in their own villages.

B. Why Now

Now is the time to embark on the effort to provide civilians with total immunity from foreseeable military harm. Now is the time because our recent era is both the best and the bloodiest in human history. It is the best because we now have an enlightened world community dedicated to creating the very best humanitarian legal regime. Yet the twentieth century was also the “bloodiest century in human history.” With this state of affairs, there is need both for better enforcement of the laws and for better laws. In fact, because enforcement is so complex and difficult there is all the more reason to seek to reduce the bloodiness of our world through improving the laws themselves. It is precisely because we have lived a large portion of the bloodiest time on earth that we now have the inspiration to do each and every thing we can to remedy the situation.

Now is the time also because we live in a post- ICBL, -ICC environment which is open to considering the types of changes urged here.

C. Why You

As shown by other successful campaigns for changes to international law, the non-governmental players must be well-established, sizable, NGO’s with experience both in raising public awareness and in lobbying governments for law change. As a founding member of the ICBL, Human Rights Watch is an obvious lead participant.

Of the 27 separate campaigns indicated on HRW’s website, several of them (Arms, Child Soldiers, Refugees, Terrorism) deal with the harm suffered by civilians due to armed conflict. HRW’s work would be complimented positively if it were to add another campaign, one which would work towards a law giving civilians total immunity from foreseen collateral damage.

Finally, if HRW speaks out on this and commits to working for change, the chance of saving civilians becomes a reality.