Reflections on the research

Time and space are factors that mitigate casualty by multiplying the chance that a contingency of events intervenes to break the causal link, rendering the damage remote.

The reality of certain type of damage that occur in armed conflicts, is however, that they only materialize over time or that they are experienced beyond the location of combat operations. An example is damage to the environment.

In recent years, there has been a growing understanding of the long-term effects of certain weapons or method of combat on the ecosystem as well as growing sensibility to the value of environmental considerations. Today, most states agree that the balance to be struck between military and humanitarian considerations must take into account the potential for damage to the environment that is not immediately apparent⁶⁵. This is reflected in the prohibition on attacks that may cause widespread, severe and long-term damage to the natural environment, especially thus, long-term damages should be factored into proportionality calculations⁶⁶. The risk posed by unexplored remnants of

64. The legal position consistent with present-day customary law is that when an attack is launched, environmental considerations must play a role in the targeting process” (Distein, supra note 35 at 177.

65. Ottawa Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction 18 September, 1997, Reprinted in Roberts & Guelff, Ibid at 645.

66. These are known as submunitions. Submunitions are small bomblets that are delivered by a cluster bomb or artillery shell. They are dispersed in large numbers (varying from tens at a time to 600-700 per bomb) and have the Capacity to Spread Destruction over an Area as Large as a Football Field which is considered their military advantage (P. Herby & A.R. Nuiten, Explosive Remnants

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war, which includes anti-personnel landmines, anti-vehicle mines, submunitions⁶⁷ from airborne cluster bombs or land-based systems as well as other unexplored ordinances (UXO) are examples of damage that materializes over time and space.

In November 2003, an international agreement was adopted in the form of a Fifth Protocol I to the 1980 Convention, which deals comprehensively with the use and clearance of unexplored munitions⁶⁸. One of the core principles of the newly adopted conventional instrument is that states that insist on using munitions which remain after the end of hostilities have a responsibility to assist in its clearance. This type of approach is a useful and creative way to hold belligerents accountable for acts that pose a long-term threat to civilians. The suggestion whether proportionality as possessing the elements of time and as a dynamic requirement is particularly useful in dealing with the recent propensity to view attacks on dual-use infrastructure as indispensable to an effective wartime campaigns⁶⁹.

Derivative damage must factor into the proportionality calculation in that it highlights the „insincerity‟ of those who refuse to admit the foreseability of long-term civilian causalities when targeting key facilities within the national infrastructure. Since the 1990-1991 Persian Gulf War, it has been established that neutralizing the national electric power grid and targeting water treatment facilities or sewerage plants is likely to result in major failures in the health sector, thereby affecting the most vulnerable

of War: Protecting Civilians through an Additional Protocol to the 1980 Convention on certain Conventional weapons” (2001) 83:84.

67. International Review of the Red Cross, 195 1t 198

68. Protocol on Explosive Remnants of War (Protocol v to the 1980 Convention) of 28 November 2003, ICRC IHL Database, Available online <http://www.icrc.org/ihl-ngF/FUL?Openview?

Accessed on 2 May, 2016

69. Op cit

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segments of society⁷⁰. Because so much turns on the casual link between the attack and the damage, it is clear that any move toward introducing derivative harm into the proportionality calculation would have to be limited to damage that is foreseeable or likely or that can be reasonably expected.

Among the options recently explored for dealing with the problem of excessive long-term damage caused by targeting dual-use facilities are two proposals worth considering briefly. The first proposes the establishment of a regime of special protection for dual-use facilities that are deemed indispensable to the survival of the civilian population.⁷¹ The authors of this proposal draw an analogy between facilities that supply the power necessary for the necessities of life and the objects protected under Article 54 of the First Additional Protocol. Article 54 prohibits attacks against objects indispensable to the survival of the population for the specific purpose of denying them for their sustenance value to the civilian population or the adverse party, whatever the motive, power plants and other infrastructure that contribute directly to the survival of the population are rarely targeted for the specific purpose of starving the civilian population, making it impossible to slot these objects under Article 54. Given the potential harm caused by targeting basic infrastructure, the proposal calls for a more stringent proportionality test. Where the survival of the civilian population is of issue, not only must the military advantage anticipated be concrete and direct, but it must also be

70 . Prevailing military doctrine emphasis infrastructure attacks particularly attacks on the national power grid as an essential means to degrade an enemy‟s air defuse, telecommunication and control capabilities” (Crawford, supra note 90 at 108-109)

71 . During the meeting of experts that was convened in May, 2005, one expert explained that in the planning of an attack, the following reverberating effects were taken into account when conducting a proportionality calculation: the risk of disease, access to clean water and climatic effects contents”, aviation week & space Technology, interview with W.M. Arkin, 27 January 1992, accessed on Lexis Nexis. On20th July, 2016

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compelling⁷². At the moment, no such additional criterion is applicable but in the event that states one day agree that a regime of special protection should apply to certain dual-use facilities, this proposal may constitute a helpful starting point.

The second proposal is with respect to unexploded remnants of war. This is a policy-oriented proposal, which may be especially appropriate in the case of interventionist conflicts, such as in Kosovo, in Afghanistan and in Iraq. It posits that victorious states and their allies have a responsibility to assist in the repair of the infrastructure and economy at the end of hostilities, in order to limit the long-term damage that may materialize as a result of their attack⁷³. This is good example of searching for solutions beyond the letter of the law where it is clear that the existing regime faces new challenges because of new battle field realities. To be certain, a commitment to offer post-conflict assistance does not retroactively justify an act that constituted a violation of the jus in bello at the time it was committed.