Date: Thu, 27 Mar 2003 08:39:13 +0200
From: "Grant McKenna" <GrantM-AT-prcsu.durban.gov.za>
Subject: Re: Robert Fisk: 'It was an outrage, an obscenity'


The question as to who is responsible for "collateral damage" is an interesting one in law. We refer to the doctrine of "dolus"- intention. 

There are three forms of intention- the intent to commit an act [dolus directus]; the intent to commit another act, but where the consequences of the act will of necessity include a certain result [dolus indirectus]; and finally there is dolus eventualis, where a person subjectively foresees the possibility that the result may flow from their conduct and reconciles themself to this possibility. 

If the US deliberately targeted civilians then it intended their deaths; none, I think, contend that, so dolus directus does not apply. If the US aimed at a target in the marketplace/street, and disregarded the civilian presence then dolus indirectus applies, and we are then brought to the question of the proportionality of the targeting. I believe however that the US denies having targeted anything in the vicinity, so we do not need enter into the debate as to what level of threat justifies killing a three year old child.

We are left then the question of whether the US foresaw the possibility that electronic jamming equipment could be used, that it would cause a missile to move off target, and that such a "misguided" missile could then kill civilians. If it did foresee such a possibility, then the US has reconciled itself to the risks and can be deemed to have held them acceptable- to have therefore by accepting the risk to have intended the consequence.

There is, of course, the act without intention- negligence. It is possible that a pilot, engaged in a mission in a hostile airspace, fired off a missile at a target, not asking whether a particular circumstance could exist [radio jamming devices being possessed by the defenders] or a possible result could ensue [the missile impacts on a civilian area], or having wondered whether such circumstances or results were possible, took steps to prevent them which were inadequate and which a reasonable person would have considered inadequate.

Personally, I consider it unlikely that any pilot can be blamed, as the tensions of combat are such that a careful consideration of the circumstances are not possible.

The same does not hold true for more senior personnel, who in the knowledge that the defenders would attempt to protect themselves by corrupting missile guidance systems, continued to plan missions in circumstances where such systems were the only means of targeting. And for the senior personnel the defence remains to say that the ends justified the risk.

It is notable that the Nuremberg trials did not examine strategic bombing in any depth- because of Goring's defence that the allies did it also. Ironically, the Soviets were keen to open that can of worms- cynics suggest that this was so because the USSR did not then have a strategic bombing force of any significance. 

Perhaps the most important lesson we learn is that the victor decides the charges and determines the courts; accordingly, the missile that was fired into Abu Taleb Street was not a war crime, but a regrettable mistake.

My citations of law are from my memory of the law courses that I did some time ago [the South African National Defence Force requires all commissioned officers and senior NCOs to know this].  We only had to learn all these moral principles after 1994- does the US require one to know the legal consequences of one's actions? Or does it still adhere to the doctrine that one is excused if one followed orders?



Grant McKenna
Education Officer
Old Court House Museum
eThekwini Heritage Department
eThekwini Metropolitan Unicity Municipality
77 Aliwal Street, Durban, kwaZulu-Natal, South Africa
GrantM-AT-prcsu.durban.gov.za
+27 82 876 9635
+27 31 311 2228
Opinions expressed are not the responsibility of my employer.
!KE E:/XARRA / /KE





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