The challenge of aerial dimension

Dr. Ruwantissa Abeyratne

The recent attacks on the Kelanitissa Power Station once again brings to bear the ominous danger posed by the aeronautical dimension in the conflict in Sri Lanka.

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.

There are three fundamental tenets of aerial targeting. Firstly, there must be a military necessity for the use of force against a target; secondly, the use of force employed on a target must be proportional to the military value of the target, and finally, the act of military bombardment must be consistent with principles of humanitarian law and unnecessary suffering must be prevented as a result of the bombardment.

The first principle is important in that any aerial attack must have a military objective. In this sense it is arguable whether an attack on a power station which provides electricity to a civilian population has a military objective.

It is also a recognized principle of military warfare that an aerial attack, which is justified on the above-mentioned grounds cannot be impugned simply because of an attendant risk of incidental injury or collateral damage.

A military objective, for the purpose of an aerial attack are primarily enemy combatants or places or installations that by their nature, location and purpose make an effective contribution to military action directed against combatants who may be prompted to use aerial targeting.

The targeting of an installation by military attack should result in a definite military advantage to the initiator of the aerial offensive.

The inherent danger of aerial targeting is that 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).

Conflict

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.

The law pertaining to warfare also 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.

International law

David Turns, in his book Terrorism and the Laws of War puts forward the view that individuals or groups of individuals cannot be “at war”with States, for the same reason that the attacks on the United States of 11 September 2001 cannot be regarded as acts of war in any legally meaningful sense. Turns maintains that in the parlance of international law, armed conflict requires two or more State belligerents, or a conflict within one State, but with a high threshold of intensity.

In the case of Sri Lanka’s armed forces and their military action against the LTTE, it may be arguable that a high threshold of intensity has been reached.

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.

Attack

In the strict definitive sense, one cannot identify the aircraft used in the attack on the petroleum installations as “military aircraft”. - Sci Tech Encyclopaedia defines military aircraft as “aircraft that are designed or modified for highly specialised 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.

Protecting Civilians

Sri Lanka is 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 in earlier instances or on the Kelanitissa power station recently 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 Stabilisation 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 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.

risk factor

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 specialised 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.

Solution

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.

(Dr. Ruwantissa Abeyratne is Coordinator, Air Transport Programmes International Civil Aviation Organisation.)