Commentary: Henry Shue

• Author: Henry Shue
• Pages: 207

F ocusing on dual-purpose targets, I would like to do two things. First, I want to do a little bit of abstract worrying, which is inconclusive and really just a plea for other people to tell me whether there is a real issue here or not. Secondly, I want to go onto something that is fairly concrete. When Professor Dinstein began, he made the traditional point that today we are talking about discrimination and tomorrow we will talk about proportionality.

Normally that is how we think about things. It seems to me that it is not absolutely clear that proportionality is as separate in the case of dual-purpose targets as it is in the case of other targets although maybe that is so.

I would just like to raise this question. In the really clear case where you have an object, and you ask if this thing is civilian or military and the answer is that this thing is clearly military, so it is eligible to be a legitimate target.

Now we ask if we can destroy this thing without causing collateral damage to some other objects which are civilian. So there is a military object, there are other civilian objects located nearby, and so we ask how much damage will there be to the co-located civilian objects? That is the discussion about proportionality. But the thing about dual-purpose targets is that they are undoubtedly military, but they are also undoubtedly civilian. So rather than having two different objects, we have one object that has two different purposes. Now maybe there is no reason not to treat this in essentially the same way, but I am sort of bothered by that. That is, you can say just as we first ask is this object military, and then we go and look at whether the damage to civilian objects will be disproportionate-why can't we just say okay, here we have a military purpose.

Now let's talk about whether the frustration of the civilian purpose, which this same object also plays, is proportional. But because this is after all only one object, I wonder whether the proportionality shouldn't come up a bit sooner. One way of raising the question is to ask something about Professor Dinstein's list. I do not think I am actually disagreeing with him, but the question is what does it mean to say a certain object is, for example, by nature a military objective. If that just means it's over the first hurdle-that it's now eligible for consideration of whether destroying it will cause proportional damage or not-then that's fine. That is, if all we're saying is...