Aerial attacks on ground targets - need for international concern

Dr. Ruwantissa Abeyratne

DANGER: The attacks on petroleum installations in Kolonnawa and Muthurajawela by “ground attack aircraft” (which are aircraft used to destroy ground targets from low altitude, as against “bombers” which are aircraft that discharge bombs from high altitude) brings to bear the ominous danger posed by the new aeronautical dimension in the conflict in Sri Lanka.

Questions such as who should compensate the losses stemming from new forms of attacks? To what extent and under what conditions can insurers and reinsurers continue to cover this exposure? would be foremost in the minds of State authorities.

In modern warfare, aerial bombardment is the most effective means of attack since, although land and water military vehicles are capable of destroying enemy targets, military aircraft are most often the first choice for use because of the speed and accuracy in which they can reach the target.

Air strikes invariably portend damage to third parties on the ground, whether or not the attackers would deliberately target civilians (which is rare in modern warfare). Aerial attacks, however well planned they might be in accordance with the ethics of military warfare, inevitably involve the law of unidentified consequences (collateral damage).

There have been many instances in human conflict where civilians and their property have been destroyed by explosives deployed from aircraft. It is well known that during World War II, the number of civilian deaths outnumbered military deaths by 16 million (not including the Holocaust victims).

The law pertaining to warfare encompasses two fundamental tenets of international humanitarian law. They pertain to civilian immunity and the principle of distinction. Collectively, they impose a duty, at all times during the conflict, to distinguish between combatants and civilians, and to target only the former.

Under any circumstances, international law prohibits the carrying out of direct attacks against civilians; as to do so intentionally is a war crime. The parties to a conflict are also required to refrain from threats or acts of violence, the primary purpose of which is to terrorize the civilian population.

They are prohibited from attacking the civilian population or civilians by way of reprisals. International humanitarian law also makes direct attacks against civilians and civilian objects a crime.

Indiscriminate attacks are those that are not directed against a military objective; those that employ a method or means of combat that cannot be directed at a specific military objective; or those that employ a method or means of combat the effects of which cannot be limited as required by international humanitarian law.

In each such case, these attacks are of a nature to strike military objectives and civilians or civilian objects without distinction.

The perspective in Sri Lanka is however different, as there is no international law applicable to the country in its internal conflict. However, there are a few common factors that apply to both international and internal conflicts in terms of aerial combat.

The first consideration is the determination of the nature of aircraft used in the attacks on the installations. In the strict definitive sense, one cannot identify the aircraft used in the attack on the petroleum installations as “military aircraft”. - Sci Tech Encyclopedia defines military aircraft as “aircraft that are designed or modified for highly specialized use by the armed services of a nation”.

In this category are fixed-wing aircraft, rotary-wing aircraft, free-flight balloons, and blimps, all of which have been used in both crewed and crewless flight modes for military purposes.

However, it is obvious that the aircraft used were designed for military applications and they could be considered military aircraft if the widely used definition, that “a military aircraft is any aircraft which has a specific purpose of engaging enemy targets during conflicts between countries or intra-county disputes” were to be applied.

The Convention on International Civil Aviation, signed at Chicago on 7 December 1944, in Article 3 states that aircraft used in military, customs and police services are deemed to be State aircraft (as against civil aircraft) implying that aircraft used for military purposes are deemed to be operated by a sovereign State.

However, this distinction is purely one of nomenclature calculated to distinguish between State and civil aircraft. By this inclusionary definition the Chicago Convention notably clarifies an important point in that the most fundamental difference between the operation of civil and military aircraft lay in the fact that, although they were expected to share the same skies, the procedures by which they did this varied greatly.

Civil aircraft depended entirely on predetermined flight paths and codes of commercial conduct which varied depending on aircraft type and types of traffic carried, whereas military aircraft operated in line with the exigency of a situation and were not necessarily always guided by predetermined flight paths.

A Resolution adopted by the International Civil Aviation Organization’s Assembly in 1956 recognizes that the skies (airspace) as well as many other facilities and services are commonly shared between civil and military aviation, and calls for all Contracting States to co-ordinate between their various aeronautical activities in order that the common use of airspace inter alia be so arranged that safety, regularity and efficiency of international civil air navigation be safeguarded.

The definition of a military target is subjective to the aggressor’s objective. Often, these targets include intentional and unintentional targets that cause the loss of life or property to the civilian population. The types of targets range from strategic to confrontational.

Some legitimate military targets are armed forces and their supporting network which includes personnel, vehicles such as tanks, installations such as barracks, munitions, airfields and aircraft, and storage facilities such as fuel depots.

A second category, called “infrastructure targets” include those facilities which directly support the mobility and operation of the combatants such as railways, bridges, and highways.

Communication targets include any system which is used by the enemy for relaying or receiving information. These targets include telephone lines, television and radio stations, telegraphs, and satellites.

While television and radio stations are generally not used for relaying military commands, they do report the status of the attackers which can give the advantage to the defenders.

Industrial targets include those factories and warehouses which produce and store munitions and machines of war such as tanks, chemical weapons, and any other weapon used on the battlefield. Energy targets include installations which produce energy for the enemy such as electrical power plants, coal mines, petroleum wells, and hydroelectric dams.

Sri Lanka is now faced with a situation analogous to the events faced by the United States on 11 September 2001. Although there are international treaties that provide compensation to victims on the ground for damage or injury caused by aircraft, these instruments pertain to aircraft operated by commercial operators of foreign aircraft.

On 31 March 1959, Sri Lanka deposited its instrument of ratification of the Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface (Rome Convention) of 1952, which became effective on 29 June 1959.

The Rome Convention states in Article 26 that, “this Convention shall not apply to damage caused by military, customs or police aircraft.” It should be noted that a “military, customs or police aircraft” is not necessarily the same thing as an “aircraft used in military, customs and police services” although again the expression “military, customs or police aircraft” was left undefined. Similarly, other “state” aircraft fall within the scope of the Convention.

However, the 1978 Hague Protocol to amend this Convention (which Sri Lanka has not ratified) reverts to more familiar language; and amends Article 26 by replacing it with, “this Convention shall not apply to damage caused by aircraft used in military, customs and police services.

Whether or not the aircraft used in the aerial attacks on Kolonnawa and Muthurajawela were “military” aircraft, the application of the Rome Treaty to the attacks is moot as the treaty is a multilateral agreement between States and does not apply to arrangements between States and groups of persons within that State.

Given the above facts, the only way in which civilian victims could be compensated is for the State to act as insurer of last resort. Immediately after the aerial attacks of 11 September 2001, the United States Congress cleared the Air Transportation Safety and System Stabilization Act on September 21, 2001.

This Act provides compensation for the victims of the four terrorist-related aircraft crashes of September 11, 2001 by establishing the Victims’ Compensation Fund.

The fund provides monetary compensation for the economic and non-economic losses (including pain, suffering, and loss of companionship) of individuals that were injured and the families of those killed in these attacks. It was estimated that the fund will pay about $6 billion over the 2002-2005 period to compensate victims.

The act directs the Attorney General to appoint a special master to administer the fund. (That appointment was made on November 26, 2001.) Within 90 days of enactment of the Act the special master must issue regulations for accepting claims and hearing evidence.

Victims seeking compensation from the fund must submit a claim within two years after the regulations are issued. By submitting a claim with the special master, victims will waive their rights to compensation through federal or state courts.

The act requires the special master to determine the amount of compensation, based on the harm to the claimant, the facts of the claim, and the individual circumstances of the claimant, within 120 days after a claim is filed.

Under the act, the amount of compensation payable from the fund will be reduced by the amount of compensation victims receive from other sources-for example, life insurance, pension funds, death benefit programs, and other government payments.

Human conflict around the world mirrors our own vulnerability to death and injury and a State confronted with this phenomenon has to approach this risk as a prudent risk bearer. There is no fundamental reason as to why State responses to risk to civilian life and well being should be episodic and crisis driven.

Although insurance underwriters may not necessary cover grave war risk, the key to approaching the issue would lie in identifying those risks which are inherently suitable for ultimate State support and then to devise appropriate terms and conditions under which such support can be made available, when required, on a contingent basis to the free market of specialized insurers and reinsurers.

Once a partnership between the State and insurers has been established there could be a way for cover to be available in response to a legislative requirement. Such an approach already applies to nuclear power installations and is eminently possible as a viable form of coverage.

The insurance community could assist the State as the insurer of last resort by re-examining core cover provisions and excluding the limited perils which the State can assume responsibility for, from an insurance perspective. In this context the State could consider establishing a long term partnership with indigenous insurance underwriters.

The long term solution to providing compensation to victims would lie in some form of international agreement or treaty between States.

The reason for this is that the world’s economies are inter-dependent and the worlds of insurance and reinsurance are progressively multinational and also inter-dependent, and consequences of war and terrorism should be managed by some form of partnership between States and their respective insurance/reinsurance industries, based on mutual recognition of what each does best.

As was seen in the aftermath of September 2001 events in the United States, individual States have already demonstrated the support which they can give to their economies when faced with chronic terrorism.

They should now collectively consider an international treaty that would clearly identify sovereign risks and provide coverage to States in a manner such that the underwriters are able to obtain reinsurance and ensure an adequate reserve for compensation.

(The writer is Co-ordinator, Air Transport Programmes, International Civil Aviation Organisation, Canada.)