Principle of Proportionality

Summary

The Principle of Proportionality in International Humanitarian Law (IHL) requires military commanders to assess whether the anticipated harm to civilians and civilian objects is excessive compared to the military advantage of an attack. Rooted in historical legal frameworks, this principle aims to limit unnecessary civilian casualties during armed conflict. Through real-world examples, including decisions made during World War II, the principle underscores the challenge of balancing military objectives with humanitarian concerns. Ultimately, it guides commanders to make informed, ethical decisions under complex circumstances to minimize civilian harm.

Takeaways

• 😀 Proportionality in International Humanitarian Law (IHL) mandates that military commanders weigh the expected civilian harm against the anticipated military advantage before launching an attack.
• 😀 The principle of proportionality is grounded in historical practices, with early references from figures like Hugo Grotius and Francis Lieber, who emphasized minimizing civilian casualties in warfare.
• 😀 According to Article 51 of Additional Protocol I to the Geneva Conventions (1977), an attack must not cause excessive harm to civilians in relation to the anticipated military gain.
• 😀 Proportionality only considers the impact on civilians and civilian objects, not on combatants or military objectives.
• 😀 The principle does not outlaw civilian casualties but ensures that these losses are not excessive relative to the expected military advantage.
• 😀 The proportionality calculation is not a precise science; it relies on the judgment of military commanders, who must act based on the information available at the time.
• 😀 The decision on proportionality is assessed according to what a reasonable commander would have done given the circumstances and information at the time of the attack.
• 😀 A military commander’s judgment of proportionality is reviewed using the available information at the time, not with the benefit of hindsight after the attack is completed.
• 😀 A real-world example from World War II shows how General Douglas MacArthur decided against bombing Manila, fearing excessive civilian casualties that would outweigh the military advantage.
• 😀 Proportionality in armed conflict aims to inject humanity into warfare, ensuring that military actions avoid unnecessary harm to civilians while still achieving legitimate military objectives.

Q & A

What is the principle of proportionality in International Humanitarian Law (IHL)?

The principle of proportionality in IHL requires that military commanders weigh the anticipated harm to civilians and civilian objects against the expected military advantage before conducting an attack. If the harm to civilians is deemed excessive compared to the anticipated military gain, the attack should not proceed.

How does the principle of proportionality relate to other fundamental principles of IHL?

The principle of proportionality works alongside other fundamental principles of IHL, such as military necessity, distinction, and unnecessary suffering. These principles aim to limit the effects of armed conflict on civilians while ensuring that military actions are necessary and proportionate to the objectives being pursued.

What historical figures contributed to the development of the principle of proportionality in warfare?

The principle of proportionality has roots in the works of legal scholars like Hugo Grotius in the 17th century, who argued for the protection of innocent life, even in conflict. Additionally, during the American Civil War, Francis Lieber emphasized precautionary measures to protect non-combatants, contributing further to the development of proportionality.

What does Article 51 of Additional Protocol I to the Geneva Conventions state about proportionality?

Article 51 of Additional Protocol I, adopted in 1977, states that an attack should not be conducted if it may result in excessive loss of civilian life, injury to civilians, or damage to civilian objects compared to the direct military advantage anticipated.

What are the key considerations when applying the principle of proportionality?

There are four key considerations: 1) The impact on civilians and civilian objects, not on combatants or military objectives. 2) The anticipated civilian harm must not be excessive in relation to the military advantage. 3) Proportionality requires a judgment call based on available information. 4) The decision is reviewed based on what a reasonable commander would have done under similar circumstances.

How is the proportionality calculation made in military decision-making?

The proportionality calculation involves military commanders using their best judgment to weigh the anticipated harm to civilians against the expected military advantage. This decision is based on the available information at the time of the attack, and the judgment may vary depending on the situation.

Why is the principle of proportionality considered a judgment call?

Proportionality is considered a judgment call because there is no precise or objective formula for measuring when civilian harm becomes excessive. Commanders must rely on their judgment, considering the context and available information, to determine if an attack is proportionate.

How does the principle of proportionality impact the review of military decisions after an attack?

After an attack, the proportionality of the decision is reviewed based on the information that was reasonably available at the time of the attack. It is crucial to assess whether the commander’s judgment was reasonable given the circumstances, not with the benefit of hindsight or perfect information.

Can an attack still be considered legal under the principle of proportionality if civilian casualties occur?

Yes, an attack can still be legal under the principle of proportionality if civilian casualties occur, as long as the loss is not excessive in relation to the military advantage gained. The principle does not make civilian casualties illegal but seeks to minimize unnecessary harm to civilians.

How does the example from World War II illustrate the application of proportionality?

The World War II example involving General Douglas MacArthur demonstrates how proportionality is applied in real-life military decisions. MacArthur chose not to conduct airstrikes in Manila, despite potential military benefits, because the civilian casualties would have been excessive compared to the expected military advantage.