ISLAMABAD: A recently published research paper titled “Concept and Implications of Collateral Damage in the Light of Islamic Law and International Humanitarian Law” urged for development of rules to determine legality of collateral damage during armed conflicts.
The author, Dr. Saqib Jawad, a Post-Doctoral Fellow at the Islamic Research Institute (IRI), International Islamic University Islamabad, who also serves as a Civil Judge in Islamabad, has profoundly examined the concept through a comparative analysis of Islamic law and International Humanitarian Law (IHL). According to the study, wars and armed conflicts have remained a persistent reality throughout history. Neither Islamic law nor international humanitarian law completely prohibits war; however, both legal systems prescribe limitations regarding the legality of warfare and the permissible means and methods used during conflicts.
The research explains that both Islamic law and IHL emphasize the protection of life and property, particularly of non-combatants. As a general rule, damage to the life and property of civilians and other non-combatants is considered impermissible. However, certain exceptional circumstances may render such damage lawful, one of which is the principle of collateral damage.
The paper notes that collateral damage may occur when a lawful military target is attacked and unintended harm is caused to nearby civilians or civilian property. While such damage may be considered permissible under specific limitations, the concept is often misused. In many cases, parties to a conflict justify civilian casualties by labeling them as collateral damage.
The study emphasizes that over time several legal principles have evolved to assess the legitimacy of collateral damage. A major issue remains the absence of a clearly defined ratio or proportion between damage inflicted on lawful military targets and the resulting harm to civilians. In practice, some military powers justify civilian casualties that far exceed the intended military objective, while others consider such actions excessive and unjust.
The author argues that it is therefore essential to develop concrete rules to determine the acceptable proportion of collateral damage. Currently, the IHL does not prescribe a specific criterion for determining such proportionality, and Islamic law also does not define an exact numerical limit. Through a comparative study, the paper explores how both legal systems address this issue and seeks to formulate more precise guidelines to determine the legality or illegality of collateral damage in contemporary conflicts.
In its conclusion, the research finds that both the Islamic law and the IHL recognize concept of collateral damage but rely on certain conditions rather than fixed numerical standards. Among the most important conditions are the principles of distinction and proportionality. The principle of distinction requires that combatants clearly differentiate between military targets and non-combatants before launching an attack. The principle of proportionality requires that any incidental loss of civilian life or property must not be excessive in relation to the anticipated military advantage, the researcher added.
Under the IHL, attacks must be directed at legitimate military targets and must not deliberately target civilians or civilian property. The law also discourages attacks that lack precision and may cause indiscriminate harm. If there is doubt about whether an object is civilian or military in nature, the attack must be avoided. Similarly, attacks cannot be launched solely on the anticipation of a potential military target.
The study also highlights that Islamic law provides detailed discussions regarding collateral damage within the broader framework of the law of war. Muslim jurists have historically differed regarding the conditions under which collateral damage may be considered legitimate. While some jurists adopted relatively flexible interpretations, all agree that such damage may only be permitted under exceptional circumstances when no alternative exists.
Certain jurists also maintain that collateral damage may only be justified if failure to act would lead to greater harm, such as the likelihood of an imminent enemy attack or the absence of any other way to enter an enemy stronghold. Even in such situations, all possible precautions must be taken to minimize harm to civilians. The paper also refers to historical traditions indicating that night attacks were discouraged by the Holy Prophet Muhammad (PBUH) due to the risk of harming non-combatants. Numerous traditions also emphasize the protection of women, children and other civilians during warfare.
Dr. Jawad’s research reveals that the concept of collateral damage was discussed within Islamic legal thought long before the emergence of modern international humanitarian law in the late nineteenth century. Islamic law of war contains detailed rulings addressing the legality of collateral damage in different circumstances. The author concludes saying the Islamic law appears to impose stricter conditions for the legitimacy of collateral damage compared to contemporary IHL. He suggests that modern legal frameworks regulating armed conflict could benefit from the ethical and legal principles developed in Islamic jurisprudence to establish clearer criteria for determining the legality of collateral damage.
