International law

A military target remains a legitimate military target, even if it is located in a civilian area.

"Civilians do not enjoy absolute immunity. Their presence will not render military objects immune from attack for the mere reason that it is impossible to bombard them without causing injury to the non-combatants." (Oppenheim's 'International Law')

The use of civilians as shields to try to prevent attacks on military targets is prohibited.

"The presence of a protected person may not be used to render certain points or areas immune from military operations." (Fourth Geneva Convention, Article 28)

The armed forces are not liable where injury to civilians results from unavoidable collateral damage, provided it is proportionate to the military gain expected of the attack.

"Although they are not military objectives, civilians and civilian objects are subject to the general dangers of war in the sense that attacks on military personnel and military objectives may cause incidental damage… Members of the armed forces are not liable for such incidental damage, provided it is proportionate to the military gain expected of the attack" (Major General A.P.V. Rogers, a former Director of British Army Legal Services)

Terrorist organizations that hide behind civilians bear the primary responsibility for civilian casualties.

"Should civilian casualties ensue from an attempt to shield combatants or a military objective, the ultimate responsibility lies with the belligerent placing innocent civilians at risk" (Dinstein,'Conduct of Hostilities under the Law of International Armed Conflict')

The correct party to assess the proportionality of a military action is the military commander in the field.

"It is unlikely that a human rights lawyer and an experienced combat commander would assign the same relative values to military advantage and to injury to noncombatants.… It is suggested that the determination of relative values must be that of the 'reasonable military commander' " (Committee Established to Review NATO Bombings in Yugoslavia)

The security of one's own forces is a relevant consideration in gauging proportionality.

"The concept of military advantage involves a variety of considerations including the security of the attacking force." (Bothe, Partsch and Solf, New Rules for Victims of Armed Conflict)

International practice

The above principles of the law of armed conflict have been adopted as the basis of military guidelines by most states. The following examples of military manuals are typical:

Australian Defence Force Manual:

The presence of non-combatants in or around a military objective does not change its nature as a military objective. Non-combatants in the vicinity of a military objective must share the danger to which the military objective is exposed.

Belgian Teaching Manual for Soldiers:

Objects occupied or used by enemy military forces are military objectives even if these objects were civilians at the outset (houses, schools or churches occupied by the enemy).

German Military Manual:

The term "military advantage" refers to the advantage which can be expected of an attack as a whole and not only of isolated or specific parts of the attack.

France's Law of Armed Conflict Manual:

The application of the principle of proportionality does not exclude that collateral damage may be suffered by the civilian population or civilian objects provided they are not excessive in relation to the concrete and direct military advantage anticipated.

Spain's Law of Armed Conflict Manual:

The principle of proportionality… is based on recognition of the fact that it is difficult to limit the effects of modern weapons and methods of warfare exclusively to military objectives and that it is likely that they will cause collateral damage to civilians and civilian objects.

Israel – IDF operational planning and orders:

In cases where there is doubt as to whether a civilian object has turned into a military objective… one is to assume that it is not a military objective unless proven otherwise.

Even when it is not possible to isolate the civilians from an assault and there is no other recourse than to attack, the commander is required to refrain from an attack that is expected to inflict harm on the civilian population that is disproportionate to the expected military gain.

International practice

A survey of military actions directed against terrorist and other groups using concealment strategies within civilian population centers underlines the tragic cost that inevitably results to civilians in such cases. For example, the campaigns directed against Taliban and Al-Qaeda in Afghanistan and against Serbian militants in Kosovo, give an indication of the scale of civilian casualties that have been involved:

Yugoslavia – 'Operation Allied Force'

About 500 Yugoslav civilians were reported to have been killed in the 90 air strikes that took place during the Allied Force operation. Among the significant incidents that occurred during the campaign:

* In April 1999, 16 civilian technicians and workers, mostly young people, were killed and 16 more civilians were injured in an attack on the Serbian Radio and Television headquarters in Belgrade. The Committee Established to Review the NATO Bombings in Yugoslavia conducted a review of the incident, and concluded that "the civilian casualties were unfortunately high but do not appear to be clearly disproportionate".

* In May 1999 at least 100 civilians were killed in an attack on the village of Korisa. NATO emphasized that the bombing was directed at "legitimate military targets" and that the loss of life was regrettable, but a legitimate outcome of a necessary operation. Later that month (May 1999), a bombing attack led to the deaths of at least three patients in the Dragiša Mišović hospital in Belgrade. The attack was directed at a military barracks in the Dedinje district adjacent to the hospital.