Proportionality in military force at war's multiple levels: averting civilian casualties vs. safeguarding soldiers.

• Author: Bohrer, Ziv
• Position: III. Proportionality at War's Multiple Levels C. Proportionality at the Tactical Level through V. Conclusion, with footnotes, p. 787-822

3. Proportionality at the Tactical Level

   Because war is littered with imponderables, it is often impossible to predict either the civilian harm or military advantage. (155) Even when the facts are relatively clear, reasonable commanders will many times differ in the relative weight they ascribe to the competing considerations. (156) The international law of in bello proportionality clearly opts for flexibility rather than invariant consistency--for a standard allowing situational discretion over any bright-line rule, whether stringent or indulgent. (157) Choosing a discretionary standard over a bright-line rule requires trust in the capabilities of the relevant actors; it also implies that a more precise norm would fail to capture the relevant situational complexities, leaving the rule either over- or under-inclusive of its purpose. (158) In the case of in bello proportionality, sweeping rules like those of Margalit and Walzer or Kasher and Yadlin cannot conceptually accommodate the need for "all things considered" judgment of the sort required by much military decision making. (159)

   Margalit and Walzer, (160) as well as Kasher and Yadlin, (161) doubt whether, in the face of war's ineradicable uncertainties, complex situational judgment by commanders can often be very accurate. There is hence little need, in their view, for international law to accord their judgment so wide a berth. Both approaches therefore implicitly seek to replace complex balancing with a simpler exhortation: always prefer the lives of your soldiers over foreign civilians (Kasher and Yadlin), or almost always prefer the lives of foreign civilians over your soldiers (Margalit and Walzer). Luban, too, knows that precise numerical calculation of military gains and civilian losses is usually impossible ex ante, but nonetheless thinks that it is realistic to expect soldiers in combat, despite its stresses and epistemic limits, to apply his theory, limiting the risk they transfer onto civilians to a ratio of one-to-one. (162) Unlike the other authors, Luban thus believes that soldiers can reliably assess risks to themselves and others, i.e., they have the capacities that in bello proportionality indeed requires of them. (163)

   This assumption, however, makes considerable sense only at the operational level, as will now be demonstrated. At war's tactical level, the pessimism of the other authors is, in fact, well warranted, and the applicable law must be construed to accommodate this reality, as it in fact seeks to do.

   The law generally cannot expect low-echelon soldiers, making tactical decisions in battle, to fully assess in bello proportionality. That would require more expertise and knowledge than they possess. It would demand, in particular, considerable familiarity with the larger attack to which their particular battle, and their role within it, was designed in small measure to contribute. Uses of force that may appear indefensible from their local standpoint may be eminently justified from a broader perspective and vice versa. (164) The time available for tactical decision making, moreover, is usually much shorter than for an operational one. (165) Evidence also suggests that soldiers tend not to be very good at accurately assessing benefits and harms from their immediate actions. Low-ranking soldiers often get caught up in and carried away by the momentum of events. (166) This frequently leads them to overvalue the military advantage likely to result from their battlefield behavior--and hence also to undervalue the moral significance of the civilian harm likely to ensue. (167) These problems are much less acute at the operational level, where decision makers enjoy a wider frame of reference, both temporally and spatially. (168)

   At the same time, completely absolving low-ranking agents from any duty to assess proportionality could lead to horrific results. (169) Under that legal arrangement, low-ranking soldiers would be duty bound to obey any order no matter how clear and grave the disproportionality of the harm expected from the action ordered. (170) International law seeks to strike a balance between these competing concerns and expresses recognition to capability differences between those at various levels in a chain of command. Consistent with those vagaries, the proportionality assessments required of lower ranking soldiers, in practice, are much less comprehensive and precise than those suited to the strategic and operational levels of warfare. To date, however, doctrinal articulation of the distinct expectations applicable to soldiers at each rung suffers from severe vagueness. According to current international law, lower ranking soldiers are only demanded to "be thoroughly aware, in carrying out [their] task, of [their] basic obligation to spare the civilian population as much as possible." (171) Among the authors this Article surveys, Margalit and Walzer best capture and defend this understanding of tactical-level, in bello proportionality.

   So imprecise a formulation of tactical-level proportionality provides little effective guidance to even the most conscientious soldier. Standing alone, the injunction to spare the civilian population "as much as possible" could, for example, plausibly be interpreted as authorizing soldiers to override decisions made at much higher echelons, i.e., whenever they think fewer civilians might be harmed by pursuing the designated mission in some other fashion. The law must not be understood to authorize this.

   Given the disorienting experience of tactical combat, low-ranking soldiers inevitably make decisions that prove mistaken, and on many matters besides how to apply the law of proportionality. National military law, rules of engagement, and "military doctrines" (172) all seek to cabin discretion and accord greater decision-making authority to higher ranking personnel. (173) Rules of engagement, for instance, generally permit upper echelon soldiers to depart from their particular strictures when circumstances reasonably seem to so require; low-ranking soldiers may not. (174) The need for differential norms follows from concern both with fairness to soldiers, given their limited knowledge or expertise, and with preventing decisional blunders certain to result from imposing expectations inconsistent with cognitive debilities. (175)

   International law should not be interpreted as requiring subordinates to override any superior's order on the basis of their own judgment of in bello proportionality. The law is thus right to let subordinates defer to their superior in most circumstances. (176) It would be preposterous, in fact, to insist that low-ranking soldiers make de novo proportionality assessments from each bullet to the next, or to demand that they accurately assess the proportionally of the attack as a whole. To be sure, the law rightly expects even the lowliest subordinate to be able to identify and disobey orders that are "manifestly illegal," which would in principle include an order to inflict blatantly disproportionate civilian harm. (177) But the law of tactical proportionality can demand no more in efforts to safeguard civilians than consistent with the measure of discretion that soldiers of lower rank, in those circumstances, actually possess.

   Even low-ranking soldiers generally have some discretion about how to perform a given order, because virtually no order can possibly specify every conceivable aspect of its possible implementation. (178) At the tactical level, ground troops have a natural inclination to exaggerate the larger military advantage to be gained from saving themselves (by minimizing their risks) at the expense of transferring that risk onto the shoulders of others, notably the enemy's civilian population. (179) This problem is exacerbated by the tendency for grueling combat over a sustained period to sap soldiers' natural human decency, making them indifferent to the civilian suffering they unintentionally inflict. (180) The tactical-level proportionality norm therefore imposes (in addition to the duty to disobey manifestly unlawful orders of the kind mentioned above) a hard-and-fast rule aimed at counteracting these potent temptations. It instructs that within the strict limits of the discretion you may possess, seek to spare the civilian population as much as circumstances permit. (181)

   This legal duty, however, as stated earlier, remains extremely vague. That vagueness is what lets both Kasher and Yadlin, (182) as well as Margalit and Walzer, (183) suggest that their position provides the proper interpretation of this duty, i.e., the duty to attempt to spare the civilian population as much as possible. Margalit and Walzer's stance in this regard is defensible. The admonition to prioritize civilian life above all could certainly lead to situational misjudgments that cause either mission failure or expose the soldier to suicidal risks. (184) Yet, by allowing soldiers to take force protection into account, when not doing so will lead to mission failure, Margalit and Walzer's approach is, in fact, able to acknowledge that low-ranking soldiers can safeguard the enemy's civilian population only within the scope of a discretion necessarily limited by their place at the bottom rungs of a long chain of command. (185) Margalit and Walzer's stance, properly understood, aids in clarifying the way in which the duty set by the norm of tactical-level proportionality should be interpreted. This duty (in cases in which the order given is not manifestly unlawful) should be interpreted as requiring that soldiers risk their lives as much as is needed in order to maximize protection to civilians unless (1) their superiors' concern with either mission goals or force protection (or both) demands otherwise, or (2) the risk they need to take in order to further protect civilians is a suicidal one. (186) In other words, their position transforms the flexible legal standard for...