Indiscriminate attacks and the proportionality rule: what is incidental civilian harm? | Journal of Conflict and Security Law | Oxford Academic
I am grateful to Professors Eric Talbot Jensen, Kubo Mačák, Michael N. Schmitt, and several other colleagues who have taken the time to discuss some of the points raised here, including the anonymous reviewers. Aurel Sari, Indiscriminate attacks and the proportionality rule: what is incidental civilian harm?, Journal of Conflict and Security Law, Volume 30, Issue 2, Summer 2025, Pages 203–239, https://doi.org/10.1093/jcsl/kraf010 Proportionality in the law of armed conflict imposes an absolute ceiling on the level of incidental civilian harm that an attack may be expected to cause. Despite its importance, surprisingly little attention has been paid so far to the notion of ‘incidentality’, in other words, to what it means for civilian harm to be incidental in nature. According to what we might call the Lesser Effect Thesis, civilian harm qualifies as incidental only if it is a mere side consequence of the attack, rather than its main or prevalent effect. Proponents of this approach sug