Interpretive complexity and the international humanitarian law principle of proportionality.

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The panel was convened at 9:00 am, Thursday, April 10, by its moderator, General Richard Gross of the U.S. Joint Chiefs of Staff, who introduced the panelists: Daniel Cahen of the International Committee of the Red Cross; Janina Dill of Oxford University; Yoram Dinstein of Tel Aviv University; and Sandesh Sivakumaran of the University of Nottingham. *

INTRODUCTORY REMARKS BY RICHARD GROSS

I am very happy to see everyone here for the panel, "Interpretive Complexity and the International Humanitarian Law Principle of Proportionality," which is a mouthful just to begin with. In a nutshell, we are going to be delving into the idea of proportionality.

I am pretty excited about this panel for two reasons. The first reason should be obvious to you, based on the folks on my left and right. We have here some of the most distinguished scholars in the field of international humanitarian law, with both practical experience and academic experience, so it's going to be exciting to hear from the four of them as they delve into this.

The second reason I'm excited about this panel is the format. It's called a simulation panel, and we're going to go through fact patterns and talk about fictitious hypotheticals. Any resemblance to real life is entirely coincidental, I promise. Even though some of them may seem uncomfortably close to real life, they are in fact hypothetical. And we're going to talk through those. So I think you're going to get a nice blend of the academic and the practical views of this important principle of the law of armed conflict.

Let me introduce our panel to you, starting from my right and we'll go across. First of all, Janina Dill is a departmental lecturer at Oxford University. She is an Associate Fellow of the Oxford Institute for Ethics, Law, and Armed Conflict and the Center for Socio-Legal Studies. She's written extensively in the law of armed conflict and is very well-known for her writings.

Next we have Daniel Cahen. Daniel is the Legal Advisor for the Washington Regional Delegation for the United States and Canada of the International Committee of the Red Cross, so he's responsible for legal support to the ICRC in the U.S. and Canada. With that come the duties, some would say the baggage, of Guantanamo Bay and some of the other tough legal issues that the United States is dealing with, with respect to our armed conflicts in Afghanistan and other places.

Next, the individual who needs no introduction: Professor Yoram Dinstein of Tel Aviv University. As you well know, he's written extensively on the law of armed conflict and is well-known for being a scholar in this area. He has four books that he's written at Cambridge on the law of armed conflict. The fourth is coming out soon and will be on non-international armed conflict. We'll all certainly look forward to that important work.

And to my left is Sandesh Sivakumaran,' who is an Associate Professor and Reader in International Law at the University of Nottingham School of Law. His book on the law of non-interaational armed conflict was awarded the 2012 ICRC Paul Reuter Prize, and then the 2013 ASIL Francis Lieber Prize, so he is a well-known scholar in this particular area.

I'm going to ask each of our panelists to give a brief introduction on proportionality, and then we're going to get into the fact patterns. First, let me read to you the principle of proportionality--both the traditional definition from international humanitarian law, and then the definition from the Additional Protocol--and then I'll give you a quick overview of the issues we'll be discussing.

International Humanitarian Law: The principle of proportionality in IHL is a requirement to desist from forcible action where incidental harm to civilians would be excessive in relation to the concrete and direct military advantage anticipated.

Additional Protocol I to the Fourth Geneva Conventions, Article 51(5)(b): The Additional Protocol states: "Among others, the following types of attacks are to be considered as indiscriminate: ... (b) an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated."

Each one of the proportionality principle's component definitions is contested, and the prospective nature of the obligation makes its effectiveness dependent on the accuracy of intelligence estimates. Interoperability concerns also influence targeting and the IHL principle of proportionality, where one or more states in a multinational force have ratified Additional Protocol I, while other members of that multinational force have not. Proportionality is absent from Additional Protocol II (applicable in non-international armed conflicts where ratified and where the conditions in Article 1 of that Protocol are satisfied), but does appear in some weapons treaties applicable in non-international armed conflict. Most believe the principle is binding in non-international armed conflicts as a matter of customary international law. Both case law and state practice suggest a further indeterminacy which might affect the principle's application: the extent to which the international human rights law principle of proportionality is co-applicable with and influences the IHL principle of proportionality.

With regard to the hypotheticals we're going to be discussing, they are organized along the following themes:

(1) The open-texture, subjectivity, prospectivity, and temporal scope of the principle of proportionality in international armed conflict (IAC);

(2) The implications of proportionality in international humanitarian law as compared to the much narrower proportionality standard in international human rights law;

(3) Whether and to what extent the principle of proportionality is binding de jure in non-international armed conflicts, and/or how the principle of proportionality operates in a "three-block war" where personnel face combat, law enforcement, and peacekeeping duties; and

(4) The relevance or otherwise of jus ad bellum proportionality and new just war theories to the interpretation of proportionality in international humanitarian law.

With that, I'll start with Janina, if you would, please, and just tell us your opening thoughts on the proportionality principle.

JANINA DILL

The principle of proportionality is multidimensional, and so is its indeterminacy. Open or contested questions we should aim to address today include: (1) What is the role of the principle of necessity in a proportionality judgment? (2) What is the minimum probability of an event occurring for it to be reasonably considered "expected" or "anticipated"? (3) To what length does "the reasonable commander" go in order to acquire intelligence about an attack so that the parameters of a proportionality calculus can be considered sound? The most important question, by far, is what it means to weigh anticipated military progress and expected incidental harm to civilians, proportionality stricto sensu.

In a first-semester German law class students learn that proportionality has three dimensions: adequacy (a reasonable connection of the means chosen to the goal sought), necessity, and commensurability. It is the last dimension that has so far stubbornly evaded scholarly efforts at concretization but which most urgently requires clarification. The absence of a consensual understanding of non-excessive incidental civilian harm comes into sharp relief in international case law. International criminal jurisprudence has largely failed to elucidate the concept of a "balance" between loss of human life and military gain. The Gotovina case provides the most striking example of this desideratum.

Answering the question of what it means properly to accommodate both military and humanitarian concerns in hostilities is not only--not even primarily--a matter of academic urgency. My research on the question of how military personnel define a legitimate target of attack in air warfare suggests that for the practitioner (specifically the practitioner under time pressure) a proportionality assessment may often amount to merely establishing necessity, or, in other words, answering the question: Have we done everything to minimize the collateral damage to be expected from a certain attack? However, collateral damage that was unavoidable, i.e., necessary, is not therefore also proportionate. The "extra protective layer" that the prescription of commensurability adds to combat operations thus often gets lost. One reason why this is true, even during good-faith applications of the law, may well be the difficulty of determining what commensurability between anticipated military advantage and expected incidental loss of civilian life means in any given situation.

The danger is that in the absence of an intersubjective legal standard, commentators and practitioners may fall back on their moral principles and intuitions. Recourse to morality in the interpretation of law is not per se problematic. However, if we approach the question of how much civilian life may justifiably be endangered for a certain military gain from a moral point of view, we cannot but consider the aims for which a belligerent has resorted to force in the first place. When we make purely intuitive or moral proportionality judgments, what inevitably guides our ideas, if implicitly or even subconsciously, is whether we think the attacker overall has a legal, just, or politically urgent reason for harming civilians. This is not how the law works. For the legal prescription of proportionality to be action-guiding on its own, we require an intersubjective legal understanding of proportionality, one that abstracts from the legality, morality, or prudential worth of a belligerent's reasons for resort to force and corresponding overall goals in war.

RICHARD GROSS

Thank you, Janina. Daniel?

DANIEL...

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