Incidental civilian harm remains to be avoided or minimized even when not excessive under mandatory precautions. Some military lawyers tend to interpret incidentality as accidentality (civilian harm not pursued). This is an exceptionally narrow interpretation of the term, re-translating the concept as ‘harm incidental to attacks.’ Crucially, incidentality in the wording of AP I provision is never relative to attacks, but always and unequivocally referred to the civilian harm.
That civilian harm occurs in the course of an attack directed against a military objective, in fact, is only sufficient to exclude that the attack was directly intended to strike civilians or civilian objects as such, and nothing else
A reasonably well-informed (par. 58) agent not only can but actually must foresee, as a minimum, the consequences of an action in their objective measure, before being able to assign any value to them.
Admitting non-incidental, extremely extensive, preponderant civilian harm expected as such to be balanced by high military advantages anticipated dissolves a fundamental boundary of proportionality evaluations and projects them beyond their legal limits.
the Protocol does not provide any justification for attacks which cause extensive civilian losses and damages. Incidental losses and damages should never be extensive”
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