Air strikes are the signature modality of violence used by NATO militaries. Despite claims to ever more accuracy and precision, air strikes consistently kill significant numbers of non-combatants. When civilian victims of airstrikes have turned to courts in NATO countries, they have generally not been successful. This article seeks to determine what are the legal techniques and knowledges that render Western aerial violence legal or extralegal through the analysis of the responses by national, regional, and international courts to two sets of NATO bombings: the 1999 bombing of Yugoslavia and the September 2009 air strike near Kunduz, Afghanistan to which this summary is confined.

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It is argued that there is a pattern across the different sets of litigation, whereby courts rely on two forms of “legal technicalities” which render the aerial violence either legal or beyond the purview of applicable law. In two of the cases, courts assessed the merit of the case based on the visual evidence and re-viewed the video footage of the incidents in a way that confirmed the visual interpretation offered by the bombing NATO ally by which civilian presence on the ground was unexpected or disputed.. In the case of the Kunduz bombing, assumptions about hostility and stereotypical images of Afghans as likely militants were central to the reconstruction of the event. In this respect, even though the Bonn Court, Germany, agreed that the presence of civilians in the target area was objectively not recognizable in the video, it allowed the commander to assume that the persons were combatants. Arguably, the author stresses that seeing persons on the ground as civilian is a question of social and legal recognition shaped by gender, racial and spatial connotations. Thus, once the assumption of hostility of the targeted place and the persons there was established, any additional information provided to the commander could be interpreted to confirm rather than challenge it.

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NB: in one case the court denied jurisdiction. The European Court of Human Rights (ECtHR) ruled in 2001 that Bankovic’s application against Belgium was inadmissible because the  bombing of Radio Television Serbia building –  did not take place on the territory of one of the High Contracting Parties nor in an area where States exercised effective overall control. The Court interpreted jurisdiction to require a form of presence and control that would be achieved by ground troops but not by air strikes. In the end, the drawing of jurisdictional boundaries rendered aerial violence juridically invisible, as it pre-empted the ECtHR from reviewing the substance of the case altogether.

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