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M. Kolanoski – Undoing the Legal Capacities of a Military Object: A Case Study on the (In)Visibility of Civilians





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The article aims to determine how legal actors assess the legality of a military operation after the fact and verify whether the parties to the conflict distinguished between combatants and civilians. The author analyses the civil proceeding for compensation by victims of a German-led airstrike in Afghanistan, known as Kunduz air strike. Reconstructing the court hearing, she focuses on how the court of Bonn reached the categorical finding that people who could only be seen through the military video material as infrared dots were Taliban.

The question of the legality of the operation turned into a question of visibility of civilians in the video. The author shows that lawyers, judges, and expert witnesses sought to establish what a “military viewer” would have made of the pictures, based on an assumption of unequal distribution of knowledge between experts and the laypersons. During the hearing, however, the parties failed to reconstruct the actual military identification work. In fact, the pictures were not read as an integral part of a flow of changing information available to the commander during the planning and coordination of the airstrike. Instead, the judges singled out the issue of what the videos show by excluding all (disturbing) circumstances. Isolated like this, the military viewer of the hearing could not see more than infrared dots, and lawyers and judges abstained from applying the legally prescribed distinction between combatants and civilians.

The article contends that, contrary to how the military viewer was produced in the hearing, the video material needs to be assessed as a situated, concerted, rule-based activity through which civilians and combatants become visible. Thus, in practical setting, the legal evaluation of the presence/absence of civilians on the ground should be based on identification and verification that the identified target indeed is a military target.

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