That is a values based test. Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians [or] damage to civilian objects … which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated. Austria, Reservations made upon ratification of the 1977 Additional Protocol I, 13 August 1982, § 1. Italy, Declarations made upon ratification of the 1977 Additional Protocol I, 27 February 1986, § 6. In the present case the bombing pursued to military goals, namely the destruction of the fuel tankers robbed by the Taliban and of the fuel as well as the killing of the Taliban, including not least the high-level regional commander of the insurgents. Take all feasible precautions to avoid or minimize collateral damage. Article 26(3)(b) of the draft Additional Protocol II submitted by the ICRC to the CDDH provided that it was forbidden “to launch attacks which may be expected to entail incidental losses among the civilian population and cause the destruction of civilian objects to an extent disproportionate to the direct and substantial military advantage anticipated”. It also prohibits all forms of violence that are not absolutely necessary to make the enemy submit.”, The manual also states: “Attacks are considered to be indiscriminate … if they violate the rule of proportionality.”. 3. New Zealand, Declarations made upon ratification of the 1977 Additional Protocol I, 8 February 1988, § 2. UN Security Council, Res. b) Use of Proportionate Force … may include non-lethal weapons to control the situation … [T]he engagement should not exceed that which is required to decisively counter the hostile act or demonstrated hostile intent and to ensure the continued protection of AFP [Armed Forces of the Philippines] forces or other protected personnel or property. 5. “[R]egardless of the seriousness of certain actions and the culpability of the perpetrators of certain crimes, the power of the state is not unlimited, nor may the state resort to any means to attain its ends” (Velasquez Rodriguez v. Honduras, I/A Court H.R. The Philippines’ AFP Standing Rules of Engagement (2005) states: b. United States, Department of Defense, Report to Congress on International Policies and Procedures Regarding the Protection of Natural and Cultural Resources During Times of War, 19 January 1993, p. 202. 1055, 2 February 1995, § 2. …. At the CDDH, the United Kingdom stated that the principle of proportionality as defined in Article 51(5)(b) of the 1977 Additional Protocol I was “a useful codification of a concept that was rapidly becoming accepted by all States as an important principle of international law relating to armed conflict”. The principle of proportionality requires the commander to conduct a balancing test to determine if the incidental injury, including death to civilians and damage to civilian objects, is excessive in relation to the concrete and direct military advantage expected to be gained. Many factors need to be assessed in the proportionality equation. This principle, known as the “principle of proportionality,” is reflected in [the 1977] Additional Protocol I [Article 51(5)(b)], which prohibits launching attacks “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.” The “elements of crimes” drafted in the Rome Statute of the International Criminal Court implementation process and approved by the Assembly of States Parties to the Rome [1998 ICC] Statute clarifies two key matters as well – that the actionable offence of causing “excessive incidental death, injury or damage” is established only where these matters were “clearly excessive,” and that excess and proportion is to be judged “in relation to the concrete and direct overall military advantage anticipated.” While Israel is not a party to either Additional Protocol I or the Rome Statute, it accepts these clarifications as reflective of customary international law. To the contrary, As Bothe. It is a manifestation of the idea that there is a barrier of values which democracy cannot surpass, even if the purpose whose attainment is being attempted is worthy” (HCJ 8276/05, As we have seen, this requirement of proportionality is employed in customary international law regarding protection of civilians (, 46. The Hellenic Navy’s International Law Manual (1995) provides: In cases where a naval operation is expected to achieve a military advantage causing incidental loss of civilian life, injury to civilians, damage to civilian objects or a combination thereof, if the level of damage can be considered as excessive in relation to the advantage anticipated, then this naval operation should be called off. Norway, Statement by the permanent representative of Switzerland during a UN Security Council open debate on the protection of civilians in armed conflict made on behalf of the Group of Friends on the Protection of Civilians in Armed Conflict, namely Australia, Austria, Belgium, Brazil, Canada, France, Germany, Italy, Japan, Liechtenstein, Norway, Portugal, Switzerland, the United Kingdom and Uruguay, 12 February 2014, p. 2. Egypt, Declarations made upon signature of the 1998 ICC Statute, 26 December 2000, § 4(c). Spain, Interpretative declarations made upon ratification of the 1977 Additional Protocol I, 21 April 1989, § 5. On the basis of a press conference and a statement by the President of Iraq, the Report on the Practice of Iraq considers that the armed forces must act with only the degree of force necessary to achieve the specific military objective. The application of the principle requires an assessment of whether the civilian casualties are out of proportion to the legitimate military advantage achieved and whether collateral damage is so widespread as to amount to an indiscriminate attack. Section 5.5 of the 1999 UN Secretary-General’s Bulletin provides: The United Nations force is prohibited from launching operations … that may be expected to cause incidental loss of life among the civilian population or damage to civilian objects that would be excessive in relation to the concrete and direct military advantage anticipated. At the CDDH, the United Kingdom stated that in its view the expression “military advantage anticipated” was intended to refer to “the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack”. According to the Senator, it would prove very difficult for an Australian naval commander to determine whether a shore bombardment would or would not injure civilians or damage civilian property to an extent that would be excessive in relation to the direct military advantage. It does not address justifications for war or other rules related to. United Kingdom, House of Lords, Statement by the Parliamentary Under-Secretary of State, Foreign and Commonwealth Office. The manual also states that “launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive collateral civilian damage” constitutes a grave breach. - The LOAC [law of armed conflict] accepts the reality that the civilian population will be affected by the ravages of armed conflict. Loss of civilian life and damage to civilian property (collateral damage) must not be excessive in relation to the concrete and direct military advantage gained by an attack. Organized by Dr. Jessica Whyte. United Kingdom, Reservations and declarations made upon ratification of the 1977 Additional Protocol I, 28 January 1998, § i; see also United Kingdom, Declarations made upon signature of the 1977 Additional Protocol I, 12 December 1977, § e and Declarations made upon ratification of the 1996 Amended Protocol II to the Convention on Certain Conventional Weapons, 13 February 1995. Accordingly, it applies to official members of the armed forces, except for those persons in administrative roles whose status as military personnel is suspended and students undergoing military training. 3 VStGB [for carrying out an attack by military means and definitely anticipating that the attack will cause death or injury to civilians or damage to civilian objects on a scale out of proportion to the concrete and direct overall military advantage anticipated], The objective element of § 11 para. In 2003, in reply to written questions by Parliament concerning. 123. The requirement of the Just War doctrine is that the opposing forces do their utmost to avoid it. The same criteria for assessing “military advantage” apply in the proportionality context, namely that the “military advantage anticipated” from a particular targeting decision must be considered from the standpoint of the overall objective of the mission. 1322, 7 October 2000, § 2, voting record: 14-0-1. Intentionally launching an attack which may be expected to cause incidental loss of life or injury to civilians or persons or damage to civilian objects … which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated. To permit attacks against the civilian population and civilian objects if such attacks had military advantages was tantamount to making civilian protection dependent on subjective decisions taken by a single person, namely, the military commander. United States, Letter from the Department of the Army to the legal adviser of the US Army forces deployed in the Gulf region, 11 January 1991, § 8(F), Report on US Practice, 1997, Chapter 1.5. - A commander is not allowed to cause harm to civilian life or property, which is disproportionate to the military need. Human Rights Watch, Letter to the Government of Yemen, New York, 19 May 1994. The following are examples of indiscriminate attacks: b. an attack which does not meet the requirements of proportionality. It therefore prohibits any form of violence which is not indispensable for gaining superiority over an enemy.”, Also in Volume 3, the manual states: “The rule of proportionality must be respected at all times.”, Colombia’s Instructors’ Manual (1999) prohibits the disproportionate use of force. Peru’s Decree on the Use of Force by the Armed Forces (2010) states: For the purposes of the present decree, the following terms are defined as: The following principles are recognized by the norms of international humanitarian law as applying before, during and after the use of force: Peru’s Military and Police Criminal Code (2010), in a chapter titled “Crimes involving the use of prohibited methods in the conduct of hostilities”, states: A member of the military or the police shall be punished with deprivation of liberty of not less than six years and not more than twenty-five years if, in a state of emergency and when the Armed Forces assume control of the internal order, he or she: 3. … in relation to the question of proportionality, the IDF position is clear: In 2008, in a briefing to the Diplomatic Corps on Israel’s operations in Gaza, Israel’s Vice Prime Minister and Minister of Foreign Affairs stated: I think that Israel is the only state in the world in which its Minister of Defense has today, during a time of almost war, met with the Attorney General, the Minister of Justice, and Foreign Ministry experts on international law, in order to speak about and understand the terms of proportionality in accordance with how the IDF [Israel Defense Forces] works and will continue to work on the ground. No war has ever been fought without collateral damage. I therefore do not find it altogether surprising that Mr, I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the. Egypt, Written statement submitted to the ICJ, The Report on the Practice of Egypt states: “Egypt is of the opinion that the principle of proportionality must be respected [at] all times and in any circumstance.”. In those cases, one might attempt to quantify both military advantage and civilian losses and apply the somewhat subjective rule of proportionality. These restrictions are put in place to ensure that decisions with respect to the use of force made at the local level do not interfere with the overall goals of the military mission. International humanitarian law … prohibits … attacks … against a military objective if at the time of the order to attack the anticipated civilian damage is out of proportion (“excessive” see Art. 0516. The Geneva Conventions and Additional Protocols Act (2002) of the Cook Islands punishes “any person who in the Cook Islands or elsewhere commits, or aids or abets or procures the commission by another person of, a grave breach … of [the 1977 Additional Protocol I]”. 5 sub-para. In an explanatory memorandum submitted to the Belgian Parliament in 1985 in the context of the ratification procedure of the 1977 Additional Protocols, the Belgian Government stated: “The military advantage must be assessed … in the light of what a military commander can foresee on the basis of the available and relevant information which is available at the time of the assessment.”. However, these collateral damages must not be excessive in relation to the concrete and direct military advantage anticipated at the moment of the attack. This workshop aims to illuminate the invention of ‘collateral damage’. From the perspective of the foreseeable harm principle, the precautionary principle permits attackers to consciously disregard foreseeable harms to civilians and thus approves actions that display a callous indifference to civilian lives. 1 of 8) True False 2) The principle of Proportionality addresses collateral damage and the commander's obligation to refrain from attack when the expected collateral damage would be excessive in relation to the military advantage expected to be gained. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop. Rwanda, Law Repressing the Crime of Genocide, Crimes against Humanity and War Crimes, 2003, Articles 8–9. In a resolution adopted in 2007 on the work of the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Palestinian People and Other Arabs of the Occupied Territories, the UN General Assembly: UN General Assembly, Res. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978. The Government recognises the UN statistics that the Committee highlights in its report. The rules of war have laid down a number of rules of engagement in a theatre of war containing civilians: - Even if it is not possible to isolate civilians from the military target and there is no choice but to attack, the commanding officer is required to refrain from conducting an attack that could be expected to cause the civilian population damage that is disproportionate to the expected military gain. The principle of proportionality prohibits attacks against military objectives which are “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”. Louise Doswald-Beck (ed. Germany, Declarations made upon ratification of the 1977 Additional Protocol I, 14 February 1991, § 4. Germany’s Military Manual (1992) states: “The term ‘military advantage’ refers to the advantage which can be expected of an attack as a whole and not only of isolated or specific parts of the attack.”. However, such decisions will be based on the “circumstances ruling at the time”. At the CDDH, France voted against Article 46 of the draft Additional Protocol I (now Article 51) because it considered: The provisions of paragraphs 4, 5 and 7 were of a type which by their very complexity would seriously hamper the conduct of defensive military operations against an invader and prejudice the exercise of the inherent right of legitimate defence recognized in Article 51 of the Charter of the United Nations. an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause loss of human life, injury to civilians or damage to civilian objects which would be excessive in relation to the concrete and direct military advantage anticipated, without prejudice to the criminal nature of an attack whose harmful effects, even where proportionate to the military advantage anticipated, would be inconsistent with the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience. b AP I … “may be expected”; ICRC Customary IHL [Study] p. 50 …). Israel, Ministry of Foreign Affairs, The Operation in Gaza 27 December 2008–18 January 2009: Factual and Legal Aspects, 29 July 2009, §§ 120–122 and 128–129. 13 Israelis are also said to have been killed. To assess whether these claims are accurate, and to flesh out how states interpret the principle in practice, the author and a colleague have undertaken a long-term, multinational empirical study of state practice in interpreting and enforcing the proportionality principle. EC, Declaration on Yugoslavia, Haarzuilens, 6 October 1991, annexed to Letter dated 7 October 1991 from the Netherlands to the UN Secretary-General, UN Doc. In 1996, the German Government reminded the Turkish Government to respect the principle of proportionality during hostilities in northern Iraq. The military advantage at the time of the attack is that advantage anticipated from the military campaign or operation of which the attack is part, considered as a whole, and not only from isolated or particular parts of that campaign or operation. ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, The Hague, 14 June 2000, § 28. That balancing is inherently difficult, and raises significant moral and ethical issues. New Zealand, Declarations made upon ratification of the 1977 Additional Protocol I, 8 February 1988, § 3. Rather, it is intended to prohibit “[. It is unlawful to carry out any attack that may reasonably be expected to cause collateral damage or injury to civilians or civilian objects that would be excessive in relation to the military advantage anticipated from the attack. 51 para. They are prohibited …. In this chapter I will defend the precautionary principle against these powerful and troubling charges. In effect, it defines the protection of the civilian population in times of international conflict. LoW principle of proportionality explicitly prohibits civilian casualties during a conflict. Incidental damage caused must not be excessive in relation to the operation’s direct and concrete military advantage anticipated. The principle of proportionality establishes a link between the concepts of military necessity and humanity. In 1994, in a Memorandum on Compliance with International Humanitarian Law by the Forces Participating in Opération Turquoise in the Great Lakes region, the ICRC stated: Attacks … which may be expected to cause incidental losses of human life among the civilian population or damage to civilian objects which would be excessive in relation to the concrete and direct military advantage anticipated are prohibited. For military use of weapons, it is necessary to conduct a proportionality assessment between the military advantages of the attack against the expected civilian casualties. Thereby they did in fact put themselves at risk to become victims of a legitimate military attack as “collateral damage”. …, The article has remained controversial. In all probability, this principle is in reality opposed by a practice based on the assumption that the aim to gain military superiority over the enemy can justify any means of warfare, which, in fact, often means the violation of the principle of proportionality. All parties are subject to the obligation to respect the principles of distinction, proportionality and precaution. Russian Federation, Statement by the permanent representative of the Russian Federation before the UN Security Council during a meeting on the protection of civilians in armed conflict, 10 May 2011, p. 9. The principle of proportionality seeks to limit the damage caused by military operations. This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts. Australia’s LOAC Manual (2006) refers to the declaration made by Australia upon ratification of the 1977 Additional Protocol I to the effect that “ADF [Australian Defence Force] commanders will, by necessity, have to reach decisions on the basis of their assessment of the information available to them at the relevant time”. No war has ever been fought without collateral damage. There will be circumstances when it would be considered more appropriate to use other munitions than cluster bombs. Commanders and others responsible for planning, deciding upon or executing necessary attacks, have to reach decisions on the basis of their assessment of whatever information from all sources may be available to them at the relevant time. for murder under Germany’s Penal Code]. In a Memorandum on the Applicability of International Humanitarian Law sent in 1990 to all States party to the Geneva Conventions in the context of the Gulf War, the ICRC stated: The following general rules are recognized as binding on any party to an armed conflict: … attacks that would cause incidental loss of life or damage which would be excessive in relation to the direct military advantage anticipated are prohibited”. This continued use of indiscriminate force is unwarranted and condemnable. Only if suspicion arises that said result occurred as a result of an attack that was directed against those “civilians” (or against “civilian objectives”), with a goal of harming them per se, or as a result of an attack directed against a legitimate objective where it was known that it was likely to cause excessive collateral damage – can it be said that it is a prima facie breach of the principles of distinction and proportionality; and if it turns out that this indeed took place, and that the collateral damage that was expected to be caused thereby was clearly excessive, it is likely to lead to individual criminal liability, pursuant to international law; that is, it is liable to constitute a war crime.