Concept and Implications of Collateral Damage in the Light of Islamic Law and International Humanitarian Law

Abstract

Wars and armed conflicts are irresistible reality of every time. Neither Islam nor international humanitarian law absolutely prohibit wars. The limitations prescribed only discuss the legality and illegality of wars and means and methods of that time. In this regard, Islamic law as well as international humanitarian law prescribe certain limitations regarding the damage to the life and property of people including combatants and non-combatants. Generally, it is well settled that damage to the life and property of non-combatants is not permissible both under Islamic law and international humanitarian law. However, there are certain conditions when any such damage to the life and property of non-combatants including civilians could be legalized. One such scenario is the case of collateral damage. While aiming at a lawful military target, if any damage is caused to the life and liberty of non-combatants, it becomes permissible subject to certain limitations. However, the principle is often misused by the aggressive parties in a way that whenever damage occurs to the non-combatants, it is labeled as collateral damage and is justified on this ground. Whereas there are certain principles that have evolved with the passage of time and need to be observed while ascertaining the legality of collateral damage. Furthermore, the scale of collateral damage also needs to be observed. For instance, it is yet to be ascertained what proportion or percentage of collateral damage could be legalized as compared to damage to a lawful military target. Various powers justify killings of ten people in collateral damage as compared to one lawful target which is declared excessive and unjust by many others. Therefore, it is imperative that some definite concrete rules should be developed for ascertaining the exact ratio and proportion of collateral damage. No provision under international humanitarian law prescribes any such criterion. Islamic law also does not specify the exact quantum of collateral damage. However, case law developed under international humanitarian law prescribes some rules regarding certainty of the principle. On the other hand, Islamic law also contains instances that could lead us to ascertain the exact criterion for ascertaining the legality or illegality of collateral damage. This paper aims to conduct a comparative study of Islamic law and international humanitarian law on the issue and attempts to produce some concrete rules regarding ascertaining the exact quantum of collateral damage for the purpose of its legality and illegality particularly in today’s scenario.