Four Comments on the Application of Proportionality under the Law of Armed Conflict.

AuthorKatzir, Roni
PositionA - Special Issue: The Law of Armed Conflict

TABLE OF CONTENTS I. INTRODUCTION 857 II. ASSESSING "EXCESSIVENESS" AND A 858 "REASONABLE MILITARY COMMANDER" III. "MILITARY ADVANTAGE" IN CONTEXT 860 IV. DEFENSIVE SYSTEMS AND PROPORTIONALITY 862 V. FORCE PRESERVATION AND MILITARY ADVANTAGE 864 VI. CONCLUSION 866 I. INTRODUCTION

The existence of the principle of proportionality as a norm is undisputed, and military commanders in armed conflicts around the world apply it continuously. As the principle is formulated in general terms--prohibiting attacks that may be expected to cause incidental loss of civilian life, injury to civilians, or damage to civilian objects, or a combination thereof, that would be excessive in relation to the military advantage anticipated--it is also clear that interpreting and applying the different elements of the principle is no simple task.

This Article shall consider four select issues regarding different elements of the principle of proportionality.

First is how to determine "excessive" (Part II). International law does not elaborate on how one must determine what is "excessive." What is generally accepted, however, is that proportionality is assessed inter alia on the basis of subjective considerations and values. The Final Report to the Prosecutor Reviewing the NATO Bombing Campaign in the Federal Republic of Yugoslavia (FRY), for example, has espoused for this purpose the standard of a "reasonable military commander." How should this standard be understood and applied?

Second is interpreting "military advantage" (Part III). Here, should the military context in which the attack or operation is taking place matter, and if so, to what extent?

Third is the impact of defensive systems on determining "military advantage" (Part IV). Many parties to conflicts have some sort of defensive measures to protect civilians from attack (from passive systems, such as shelters and air raid warnings systems, to active defensive systems, such as aerial defense facilities or rocket interception mechanisms). Should the apparent reduced lethality of enemy capabilities as a result of these systems be taken into account when assessing military advantage in attacks against the enemy?

Fourth is the impact of "force preservation" on determining "military advantage" (Part V). It is axiomatic that in conflict, preserving one's forces is important. What role should this play in proportionality assessments?

  1. ASSESSING "EXCESSIVENESS" AND A "REASONABLE MILITARY COMMANDER"

    As noted above, customary international law prohibits attacks that may be expected to cause incidental loss of civilian life, injury to civilians, or damage to civilian objects, or a combination thereof, that would be excessive in relation to the military advantage anticipated. Thus, once a commander values both the anticipated military advantage and incidental damage, he or she must decide whether one--the expected incidental damage--is not excessive in relation to the other. When presented this way, it may seem that a proportionality assessment will always lead to a singular, simple answer. This is obviously not the case. If comparing apples to oranges is difficult, comparing incidental damage to military advantage--let alone assessing whether the former is excessive in relation to the latter--is very challenging.

    Difficulties in weighing two distinct and dissimilar variables make it particularly challenging to assess how significant the imbalance between the expected incidental damage and the anticipated military advantage should be so as to render an attack excessive. (1) The primary means in LOAC's toolbox for dealing with this problem is the standard of "a reasonable military commander." The reference to "military commander" in a legal standard does not simply indicate the identity of the person expected to make an assessment on proportionality. It first and foremost stresses that a special skillset is required to make such assessments: just as one has to be a jurist to properly consider legal questions, only military commanders can properly make proportionality assessments. Hence, a standard based on the perspective of a "military commander" implies that the determination whether an attack was excessive can only be made with a certain degree of operational expertise. At the same time, the term "military commander" is quite wide. The expertise demanded is non-specific, since commanders assessing proportionality come from different operational backgrounds and roles; some are infantry specialists making the assessment on the field, while others may be experts in fires or tanks sitting in a back office. Another aspect of the term "military commander" is that it includes a wide range of persons in the military apparatus--from the most senior officer to non-commissioned officers. (2)

    The standard does not refer to simply any "military commander." Rather, the "military commander" making the assessment must be "reasonable." A few observations on this point are warranted. First, reasonableness implies that the law accepts that assessing excessiveness is not a matter of reaching the "one and only" answer to a determination. It would be a mistake to think that in each and every case of a proportionality assessment there is a single point on a scale where each and every reasonable military commander agrees that a proportionate attack becomes excessive. Reasonableness implies a certain margin of appreciation--a possibility for an array of different ways of assessing proportionality, each way being reasonable, hence within the boundaries of the legal framework. This is especially--although not exclusively--the situation in borderline cases. The Committee Established to Review the...

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