Aerial attacks on ground targets - need for international concern
DANGER: The attacks on petroleum installations in Kolonnawa and
Muthurajawela by â€śground attack aircraftâ€ť (which are aircraft used to
destroy ground targets from low altitude, as against â€śbombersâ€ť 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
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
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 â€śmilitary aircraftâ€ť. - Sci Tech
Encyclopedia defines military aircraft as â€śaircraft that are designed or
modified for highly specialized use by the armed services of a nationâ€ť.
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 â€śa military aircraft is any aircraft
which has a specific purpose of engaging enemy targets during conflicts
between countries or intra-county disputesâ€ť 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
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
Organizationâ€™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
The definition of a military target is subjective to the aggressorâ€™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
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 â€śinfrastructure targetsâ€ť 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
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
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
The Rome Convention states in Article 26 that, â€śthis Convention shall
not apply to damage caused by military, customs or police aircraft.â€ť It
should be noted that a â€śmilitary, customs or police aircraftâ€ť is not
necessarily the same thing as an â€śaircraft used in military, customs and
police servicesâ€ť although again the expression â€śmilitary, customs or
police aircraftâ€ť was left undefined. Similarly, other â€śstateâ€ť 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, â€śthis 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 â€śmilitaryâ€ť 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 Victimsâ€™ 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
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 worldâ€™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.)