Practice Relating to Rule 14. Proportionality in Attack
Note: For practice concerning indiscriminate attacks, see Rules 11 to 13. For practice concerning precautions to be taken before and during attacks in order to respect the principle of proportionality, see Rules 18 and 19. For practice concerning the limitation of destruction of enemy property to what is required by the mission, see Rule 50.
Additional Protocol I
Article 51(5)(b) of the 1977 Additional Protocol I prohibits
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.
Additional Protocol I
Under Article 85(3)(b) of the 1977 Additional Protocol I, “launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects, as defined in Article 57, paragraph 2 a) iii) is a grave breach.
Additional Protocol II (draft)
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”.
This provision was deleted from the proposal adopted by Committee III of the CDDH.
Protocol II to the Convention on Certain Conventional Weapons
Article 3(3)(c) of the 1980 Protocol II to the Convention on Certain Conventional Weapons prohibit any placement of mines, booby-traps and other devices “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”.
Amended Protocol II to the Convention on Certain Conventional Weapons
Article 3(8)(c) of the 1996 Amended Protocol II to the Convention on Certain Conventional Weapons prohibit any placement of mines, booby-traps and other devices “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”.
ICC Statute
Pursuant to Article 8(2)(b)(iv) of the 1998 ICC Statute, the following constitutes a war crime in international armed conflicts:
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.
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Lieber Code
Article 15 of the 1863 Lieber Code states: “Military necessity admits of all direct destruction of life or limb of ‘armed’ enemies, and of other persons whose destruction is incidentally ‘unavoidable’ in the armed contests of the war.”
Hague Rules of Air Warfare
Article 24(4) of the 1923 Hague Rules of Air Warfare states:
In the immediate neighbourhood of the operations of land forces, the bombardment of cities, towns, villages, dwellings or buildings is legitimate provided that there exists a reasonable presumption that the military concentration is sufficiently important to justify such bombardment, having regard to the danger thus caused to the civilian population.
Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia
Paragraph 6 of the 1991 Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia requires that hostilities be conducted in accordance with Article 51(5)(b) of the 1977 Additional Protocol I.
Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina
Paragraph 2.5 of the 1992 Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina requires that hostilities be conducted in accordance with Article 51(5)(b) of the 1977 Additional Protocol I.
San Remo Manual
Paragraph 46(d) of the 1994 San Remo Manual provides:
An attack shall not be launched if it may be expected to cause collateral casualties or damage which would be excessive in relation to the concrete and direct military advantage anticipated from the attack as a whole.
ILC Draft Code of Crimes against the Peace and Security of Mankind (1996)
Pursuant to Article 20(b)(ii) of the 1996 ILC Draft Code of Crimes against the Peace and Security of Mankind, “[l]aunching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects” constitutes a war crime.
UN Secretary-General’s Bulletin
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.
UNTAET Regulation No. 2000/15
The UNTAET Regulation No. 2000/15 establishes panels with exclusive jurisdiction over serious criminal offences, including war crimes. According to Section 6(1)(b)(iv), the following constitutes a war crime in international armed conflicts:
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.
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Australia
Australia’s Defence Force Manual (1994) states:
Collateral damage may be the result of military attacks. This fact is recognised by LOAC and, accordingly, it is not unlawful to cause such injury and damage. The principle of proportionality dictates that the results of such action must not be excessive in light of the military advantage anticipated from the attack.
The manual further states, in the specific context of siege warfare, that “if there are noncombatants in the locality, the anticipated collateral damage must not be excessive in relation to the concrete and direct military advantage expected to result from the bombardment”.
Both the Defence Force Manual and the Commanders’ Guide list “launching indiscriminate attacks that affect the civilian population or civilian objects in the knowledge that such attack will cause extensive and disproportionate loss of life, injury to civilians or damage to civilian objects” as an example of acts which constitute “grave breaches or serious war crimes likely to warrant institution of criminal proceedings”.
Australia
Australia’s LOAC Manual (2006) states:
5.1 … Due regard must be paid to the principle of proportionality …
…
5.9 Proportionality requires a commander to weigh the military value arising from the success of the operation against the possible harmful effects to protected persons and objects. There must be an acceptable relationship between the legitimate destruction of military targets and the possibility of consequent collateral damage.
…
5.30 … Attacks on military objectives that cause incidental loss or damage to civilians are not prohibited as long as the proportionality rule is complied with …
…
5.38 Collateral damage may be the result of military attacks. This fact is recognised by the LOAC and, accordingly, it is not unlawful to cause such injury and damage. The principle of proportionality dictates that the results of such action must not be excessive in light of the military advantage anticipated from the attack.
…
5.61 [Duties of Australian Defence Force commanders include] refraining from launching any attack which may be expected to cause collateral injury, or collateral damage, which would be excessive in relation to the concrete and direct military advantage anticipated.
The manual further states, in the context of siege warfare: “If there are non-combatants in the locality, the anticipated collateral damage must not be excessive in relation to the concrete and direct military advantage expected to result from the bombardment.”
The manual’s Glossary defines “collateral damage” as: “Incidental damage to persons, objects or locations arising out of combat action against a legitimate military objective.”
The manual’s chapter on “Compliance” states:
[The 1977 Additional Protocol I] extends the definition of grave breaches to include the following … acts when committed wilfully, in violation of the relevant provisions of the protocol, and causing death or serious injury to body or health:
- launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects.
Belgium
Belgium’s Law of War Manual (1983) states:
An attack against a military objective must not be launched when it is to be expected that such an attack will cause incidental loss or damage to civilians and civilian objects which would be excessive in relation to the concrete and direct military advantage expected.
Benin
Benin’s Military Manual (1995) requires respect for the principle of proportionality. According to the manual, “a military action is proportionate if it does not cause loss or damage to civilians which is excessive in relation to the expected overall result. This rule cannot justify unlimited destruction or attacks against civilians and civilian objects as such.”
The manual also states: “The principle of proportionality requires that needless suffering and damage be avoided. Pursuant to this principle, all forms of violence which are not indispensable to gain superiority over an enemy are prohibited.”
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) states: “The utilization of methods and means of combat may not be excessive in relation to the direct and concrete military advantage anticipated.”
The Regulations also states:
It is prohibited to cause suffering and destruction which are excessive in relation to the aim of the mission. The means utilized must be proportionate to the objective sought. Thus, bombarding a village because a single sniper is located there violates the principle of proportionality.
The Regulations further states: “The rule of proportionality must be respected. … The rule of proportionality does not justify unlimited destruction or attacks against civilians or civilian objects as such.”
Cameroon
Cameroon’s Instructor’s Manual (1992) states: “The rule of proportionality prohibits the launching of attacks which will cause loss or damage to civilians and civilian objects which is excessive in relation to the military advantage anticipated.”
Cameroon
Cameroon’s Instructor’s Manual (2006), under the heading “Rules of Conduct Regarding Military Objectives”, states: “The rule of proportionality prohibits the launching of attacks if they will cause loss or damage to civilian populations or civilian objects which is excessive in relation to the military advantage anticipated.”
The manual also states: “Blind bombardments are formally prohibited just like any other disproportionate attack.”
Canada
Canada’s LOAC Manual (1999) states:
The fact that an attack on a legitimate target may cause civilian casualties or damage to civilian objects does not necessarily make the attack unlawful under the LOAC. However, such collateral civilian damage must not be disproportionate to the concrete and direct military advantage anticipated from the attack.
The proportionality test is as follows: Is the attack expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof (“collateral civilian damage”) which would be excessive in relation to the concrete and direct military advantage anticipated? If the answer is “yes”, the attack must be cancelled or suspended. The proportionality test must be used in the selection of any target.
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.
Canada
Canada’s Code of Conduct (2001) explains that the principle of proportionality “imposes a duty to ensure that the collateral civilian damage created is not excessive in relation to the concrete and direct military advantage anticipated”.
Canada
Canada’s LOAC Manual (2001) states:
This concept of humanity results in a specific prohibition against unnecessary suffering, a requirement of proportionality, and a variety of more specific rules. The concept of humanity also confirms the basic immunity of civilian populations and civilians from being objects of attack during armed conflict. This immunity of the civilian population does not preclude unavoidable incidental civilian casualties that may occur during the course of attacks against legitimate targets and that are not excessive in relation to the concrete and direct military advantage anticipated.
The manual further states:
4. Proportionality. The principle of proportionality establishes a link between the concepts of military necessity and humanity. This principle implies that collateral civilian damage arising from military operations must not be excessive in relation to the direct and concrete military advantage anticipated from such operations.
5. In deciding whether the principle of proportionality is being respected, the standard of measurement is the anticipated contribution to the military purpose of an attack or operation considered as a whole. The anticipated military advantage must be balanced against other consequences of the action, such as the adverse effect upon civilians or civilian objects. It involves weighing the interests arising from the success of the operation on the one hand, against the possible harmful effects upon protected persons and objects on the other.
6. There must be a rational balance between the legitimate destructive effect and undesirable collateral effects. As an example, you are not allowed to bomb a refugee camp if its only military significance is that refugees in the camp are knitting socks for soldiers. As a converse example, you are not obliged to hold back an air strike on an ammunition dump simply because a farmer is ploughing a field beside it. Unfortunately, most applications of the principle of proportionality are not quite so clear cut.
In its chapter on targeting, the manual states:
1. The fact that an attack on a legitimate target may cause civilian casualties or damage to civilian objects does not necessarily make the attack unlawful under the LOAC. However, such collateral civilian damage must not be disproportionate to the concrete and direct military advantage anticipated from the attack.
2. The proportionality test is as follows: Is the attack expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof (“collateral civilian damage”), which would be excessive in relation to the concrete and direct military advantage anticipated? If the answer is “yes”, the attack must be cancelled or suspended. The proportionality test must be used in the selection of any target.
The manual also explains, in the context of indiscriminate attacks:
1. Indiscriminate attacks are those that may strike legitimate targets and civilians or civilian objects without distinction. They are prohibited …
2. The following are examples of indiscriminate attacks:
b. an attack which does not meet the requirements of proportionality.
In its chapter on air warfare, the manual also states:
Air to land operations must be conducted in accordance with the principle of proportionality. This implies that collateral civilian damage must never be excessive in relation to the concrete and direct military advantage anticipated.
In its chapter on “War crimes, individual criminal liability and command responsibility”, the manual provides 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 of the 1977 Additional Protocol I.
In its glossary, the manual defines “collateral civilian damage” as “incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, arising from the use of military force”.
Canada
Rule 2 of Canada’s Code of Conduct (2005) instructs Canadian Forces (CF) personnel: “In accomplishing your mission, use only the necessary force that causes the least amount of collateral civilian damage.”
The Code of Conduct further explains:
1. Rule #2 deals with the legal obligation to minimize harm to civilians and their property while carrying out your mission. It balances the needs of military necessity against the humanitarian principle that civilians should be spared the hardship of conflict. This is known as the principle of proportionality. This principle imposes a duty to ensure that the collateral civilian damage created is not excessive in relation to the concrete and direct military advantage anticipated.
…
4. Whenever military force is used, civilians who are not directly involved in the conflict may be hurt and their property may be damaged … CF operations must be conducted in such a way that damage to civilians and their property is minimized. …
5. The question whether collateral civilian damage is acceptable is often referred to in terms of proportionality. Unfortunately, there is no scientific scale of “proportionality” on which to measure the permissible amount of collateral civilian damage. International law states that force should only be used against “military objectives.” Your commanders (and in some cases you) must decide if the collateral civilian damage resulting from the use of force is excessive in light of the direct and concrete military advantage anticipated. In most cases the assessment of what is an acceptable level of damage boils down to common sense. For example, the complete destruction of a town in order to eliminate a small pocket of opposing forces would be seen as unacceptable. In that case, the collateral civilian damage (numerous civilian casualties and widespread destruction of civilian property) would be excessive in light of the military advantage anticipated. Depending upon the goal of the mission and the accuracy or destructiveness of certain weapons systems, commanders may limit the types of weapons subordinates may use, or restrict the circumstances under which those weapons can be employed. Such restrictions are often found in the ROE [rules of engagement]. 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. Achieving your own local objective by any means, regardless of the consequences, cannot be allowed to place the overall mission at risk. The actions of each individual CF member must fit within the overall plan and goals of the mission, including the commander’s direction on the use of force.
Colombia
Colombia’s Instructors’ Manual (1999) prohibits the disproportionate use of force. The manual states: “In time of war, the principle of proportionality must be observed. This principle means that the degree of force, the weapons used and the actions taken must be proportionate to the seriousness of the situation.”
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book I (Basic instruction):
II.2 Principles of the Law of War
The Law of War is based on three fundamental principles:
- The principle of distinction;
- The principle of limitation;
- The principle of proportionality.
The principle of proportionality demands the fulfilment of one’s mission without causing unnecessary damage. It entails the adaptation of the means of combat to the military result anticipated. Recourse to excessive force is a flagrant violation of international humanitarian law.
In Book III, Volume 1 (Instruction of first-year trainee officers), the Teaching Manual provides:
II. The fundamental principles of IHL
Just as military operations are based on principles concerning attack, defence, withdrawal, etc., the law of armed conflicts contains a set of well-defined principles. These concrete principles reflect the realities of conflicts. They represent a balance between the principle of humanity and military necessity, and they are valid at all times, in all places, and in all circumstances. It is essential that these rules are known by all combatants. They must permanently be taken into consideration in every activity of assessment, planning, and military training or operation. The following principles can be found throughout the texts of the law of armed conflicts.
…
II.2. Proportionality
When military objectives are attacked, civilians and civilian objects must to the greatest extent practicable be protected against any incidental or collateral damage. Incidental damage caused must not be excessive in relation to the operation’s direct and concrete military advantage anticipated. Excessive recourse to force constitutes a flagrant violation of the law of armed conflicts.
Here we are addressing fundamental military demands, especially for commanders. Avoiding an infringement of this principle requires constant reflection and effort. Deficiencies in the area of preparation, intelligence or command can easily lead to the destruction of a town or village with its hospitals, religious buildings and its civilian population.
In Book IV (Instruction of heads of division and company commanders), the Teaching Manual provides:
The fact that an attack launched against a legitimate objective can cause losses among civilians or damage to civilian objects does not necessarily render the attack illegitimate in the sense of the LOAC. However, these collateral damages must not be excessive in relation to the concrete and direct military advantage anticipated at the moment of the attack.
Croatia
Croatia’s LOAC Compendium (1991) considers a military action to be proportionate “when it does not cause collateral civilian casualties and excessive damage in relation to the expected military advantage of the operation”.
Djibouti
Djibouti’s Manual on International Humanitarian Law (2004) states that IHL “has several principles [one of which is] … proportionality: the damage caused to the civilian population and civilian objects may not be excessive in relation to the direct advantage anticipated from the military operation”.
Ecuador
Ecuador’s Naval Manual (1989) states: “Loss of civilian life, injury to civilians or damage to civilian objects, incidental to an attack upon a legitimate military objective, are not illegal. Such injury or collateral damage must not, however, be excessive in light of the military advantage anticipated by the attack.”
The manual further specifies: “A weapon is not indiscriminate simply because it may cause incidental or collateral civilian casualties, provided such casualties are not foreseeably excessive in light of the expected military advantage to be gained.”
France
France’s LOAC Teaching Note (2000) provides that the action of both commanders and combatants must be guided by respect for the fundamental principle of proportionality.
France
France’s LOAC Manual (2001) states that the principle of proportionality requires that no attack must be launched,
which may be expected to cause incidental loss of civilian lives, injuries 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 application of this principle raises the question of the balance between the means used and the desired military effect. The application of the principle of proportionality does not exclude that collateral damage may be suffered by the civilian population or civilian objects provided they are not excessive in relation to the concrete and direct military advantage anticipated.
Germany
Germany’s Military Manual (1996) states: “Attacks on military objects shall not cause any loss of civilian life that would be excessive in relation to the concrete and direct military advantage anticipated.”
Germany
According to Germany’s IHL Manual (1996), “attacks against the civilian population, including launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attacks will cause excessive loss of life, injury to civilians or damage to civilian objects” are war crimes.
Germany
Germany’s Soldiers’ Manual (2006) states: “Military objectives may not be fought if loss of civilian life and/or damage to civilian objects is excessive in relation to the military advantage to be anticipated.”
Greece
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.
Hungary
Hungary’s Military Manual (1992) considers a military action to be proportionate “when it does not cause collateral civilian casualties and excessive damage in relation to the expected military advantage of the operation”.
Indonesia
Indonesia’s Directive on Human Rights in Irian Jaya and Maluku (1995) states:
The use of force should be proportionate, meaning there should be a balance between military necessity and humanity. Force must only be used in accordance with the objectives of the task or the achievement of the target.
Israel
With reference to Israel’s Law of War Booklet (1997), the Report on the Practice of Israel states: “The IDF [Israel Defense Forces] would not attack a target in cases in which it is expected that the attack would cause civilian loss, injury or damage excessive in relation to the military advantage anticipated.”
Israel
Israel’s Manual on the Laws of War (1998) states:
Even when it is not possible to isolate the civilians from an assault and there is no other recourse but to attack, this does not constitute a green light to inflict unbridled harm on civilians. The commander is required to refrain from an attack that is expected to inflict harm on the civilian population that is disproportionate to the expected military gain.
Israel
Israel’s Manual on the Rules of Warfare (2006) states:
In any attack, it is a duty to ensure that:
- That the military gain expected from the attack is proportional to the expected damage that would be caused to civilians as a result of the offensive.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Kenya
Kenya’s LOAC Manual (1997) states that one of the main principles which places constraints on the conduct of hostilities is “the principle of proportionality which calls for the avoidance of unnecessary suffering and damage and therefore prohibits all forms of violence not indispensable for the overpowering of the enemy”.
Madagascar
Madagascar’s Military Manual (1994) states: “The rule of proportionality must be respected so that civilian losses are not excessive in relation to the expected military advantage.”
Netherlands
The Military Manual (1993) of the Netherlands states:
During an attack on a military objective, the collateral damage (loss of civilian life and damage to civilian objects) may not be excessive in relation to the military advantage anticipated from the attack. In every combat action, therefore, the commander must assess whether the action is to take place in the proximity of civilians or civilian objects.
Netherlands
The Military Manual (2005) of the Netherlands states that “the humanitarian law of war” limits “military force in order to avoid … unnecessary suffering”.
The manual lists “proportionality and subsidiarity” as one of five “generally accepted principles of the humanitarian law of war”.
The manual further states:
Collateral damage and degree of force used must not be excessive in relation to the expected military advantage. This is known as the principle of proportionality. Proportionality implies that no more force may be used than is strictly necessary to achieve the set purpose. Moreover, no more force must be used than necessary to defeat the enemy. The principle of subsidiarity requires a commanding officer, when choosing from a number of means, to choose that which causes the least collateral damage. The principles of proportionality and subsidiarity are developed further in Chapter 5 (points 0541 ff.) and elsewhere.
During the Second Gulf War, the Iraqi military had placed aircraft in hangars in residential districts. To destroy these aircraft from the air, by indiscriminate bombing, would not have been proportionate. In any case, since the aircraft were in hangars in residential districts, they posed no direct threat, and indiscriminate bombing would undoubtedly have caused (severe) collateral damage to civilian property. [emphasis in original]
In its chapter on behaviour in battle, the manual states that “disproportionate damage to civilian objects and the civilian population caused by attacking military targets must be limited”.
The manual also states:
0516. The following attacks are also considered indiscriminate:
- attacks which may be expected to strike the civilian population excessively hard. AP I [1977 Additional Protocol I] describes these as attacks that may be expected to cause collateral loss of life among civilians, damage to civilian objects on a scale that is excessive in relation to the military advantage anticipated.
In addition, the manual states: “An attack should not be carried out if it can be expected to cause collateral damage to cultural property on a scale out of proportion to the expected military advantage.”
In its chapter on non-international armed conflict, the manual states: “In attacks, the basic principle of proportionality must be central. This imposes an obligation to avoid excessive damage with regard to the civilian population and civilian objects.”
In that same chapter, the manual further states: “Military operations in which civilians or civilian objects may be affected must be carried out with due regard for the principle of proportionality.”
In its chapter on peace operations, under the heading “Code of Conduct for the Armed Forces”, the manual states: “Members of the armed forces may be ordered to use force, but must refrain from using it unnecessarily or to excess.”
In this chapter, the manual further states:
The RoE [Rules of Engagement] describe the way in which a peace force may use force (and actions classifiable as provocative) and the means to be used to this end. The RoE are based on the principles of proportionality and subsidiarity in the use of force: use no more force than necessary to achieve the purpose, and ensure that no less invasive alternatives are available.
In addition, the manual provides: “The use of force to protect goods is (also) always conditional on the principles of legality, necessity and proportionality (often called use of minimum force).”
New Zealand
New Zealand’s Military Manual (1992) states: “As a general rule, an attack is not to be carried out if it would result in collateral civilian casualties clearly disproportionate to the expected military advantage.”
The manual considers:
The principle of proportionality establishes a link between the concepts of military necessity and humanity. This means that the commander is not allowed to cause damage to non-combatants which is disproportionate to military need … It involves weighing the interests arising from the success of the operation on the one hand, against the possible harmful effects upon protected persons and objects on the other. That is, there must be an acceptable relation between the legitimate destructive effect and the undesirable collateral effects.
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 loss of life, injury to civilians or damage to civilian objects” constitutes a grave breach.
Nigeria
Nigeria’s Military Manual (1994) states:
Every commander has … to respect the rule of proportionality, i.e. the use of proportional military force so as to avoid causing incidental civilian casualties and damage which is excessive in relation to the value of the expected result of the whole operation.
Nigeria
Nigeria’s Manual on the Laws of War states: “In any case of attack or bombardment of a defended locality, the killing and destruction must be proportionate to the military advantage sought.”
Peru
Peru’s IHL Manual (2004) states: “The Principle of Proportionality establishes that the use of methods and means of warfare must not be excessive in relation to the concrete and direct military advantage anticipated.”
The manual further states: “The rule of proportionality must be respected. According to this rule, all unnecessary suffering and damage must be avoided. 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.”
The manual further states:
In the immediate vicinity of the operations of the land forces, the bombardment of cities, towns, villages, habitations and buildings is legitimate, provided there is a reasonable presumption that the military concentration is important enough to justify the bombardment, taking into account the danger to which the civil population will be exposed.
Philippines
The Joint Circular on Adherence to IHL and Human Rights (1991) of the Philippines states: “When the use of armed force is inevitable, strict controls must be exercised to insure that only reasonable force necessary for mission accomplishment shall be taken.”
Philippines
The Philippines’ Air Power Manual (2000) provides:
1-6.3. The 1949 Geneva Convention includes the doctrine of proportionality – a concept which provides foundation for LOAC. It states that nations are to refrain from attacks that may be expected to cause corresponding damage which is excessive in relation to the concrete and direct military advantage anticipated. It deals with the relationship between people likely to be affected by war and its military objectives. It also embodies the protection of the various classes of people affected by the hostilities.
1-6.4. However, LOAC should not serve as an obstacle in the conduct of operations. In fact, the law recognizes the belief that the destruction of vital targets, especially if it shortens the conflict, has its long term humane effects. The chief unifying principle always applies – that the importance of the military mission (military necessity) determines, as a matter of balanced judgment (proportionality), the extent of permissible collateral or incidental injury to [an] otherwise protected person or object.
1-6.5. In addition to the conventions, Additional Protocols are incorporated which deal with people and their claim to protection under defined circumstances, such as medical and religious personnel. Additional Protocol One includes international conflicts and wars of national liberation. In effect, it defines the protection of the civilian population in times of international conflict.
1-6.6. Additional Protocol Two defines two things: limitations in the conduct of operations and principles relating to the protection of civilians in a non-international conflict. Thus, every combatant should understand the consequences of this Protocol.
Philippines
The Philippines’ AFP Standing Rules of Engagement (2005) states:
8. General Rules for the Correct Use of Force towards Mission Accomplishment
…
b. The use of force to accomplish authorized missions should be reasonable in intensity, duration and magnitude.
…
9. General Rules for Self-Defense
…
b. Action in Self-Defense
1) Means of Self-Defense. All necessary means available and all appropriate actions may be used in self-defense. The following guidelines apply for individual and unit self-defense:
a) Attempt to De-escalate the Situation. When time and circumstances permit, the hostile force should be warned and given the opportunity to withdraw or cease the threatening actions.
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.
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) states:
The prohibited methods of warfare include … launching indiscriminate attacks including attacks against objects (targets) which may cause losses among the civilian population and damage to civilian objects which would be excessive in relation to the anticipated military advantage.
The Regulations further states: “Indiscriminate attacks are … attacks which would result in violation of the principle of proportionality.”
Russian Federation
The Russian Federation’s Combat Manual (2005) states that “causing severe suffering or damage, which is excessive for the achievement of a military objective is prohibited”.
Sierra Leone
Sierra Leone’s Instructor Manual (2007) states:
III Proportionality
This seeks to balance the sometimes conflicting interests of military necessity with the requirements of humanity. It requires that a soldier, in carrying out his mission, does so without causing excessive damage to the civilian population or civilian objects.
It therefore requires an assessment of likely casualties, both military and civilian, and damage compared with the specific military advantage expected from the attack. For example, an attack on a military objective with few enemies located in a densely populated area should not be carried out if the probable damage to civilians is likely to exceed the military advantage to be gained from the attack.
… The aim is to avoid or at the very least minimize collateral damage. [emphasis in original]
South Africa
South Africa’s LOAC Manual (1996) lists the principle of proportionality among the general principles of the law of armed conflict. It states: “The loss of life and damage to property caused by military action must not be disproportionate to the military advantage to be gained.”
The manual further states: “The law of war does not prohibit effective military action. Its purpose is to prevent unnecessary suffering and damage which would afford no military advantage or which is disproportionate to the military advantage obtained.”
South Africa
South Africa’s Revised Civic Education Manual (2004) states:
35. The following three principles govern the LOAC:
c.
Proportionality. The loss of life and damage to property caused by military action must not be disproportionate to the military advantage to be gained.
Spain
Spain’s LOAC Manual (1996) states:
The principle of proportionality seeks to limit the damage caused by military operations. It is based on a recognition of the fact that it is difficult to limit the effects of modern means and methods of warfare exclusively to military objectives and that it is likely that they will cause collateral damage to civilians and civilian objects.
The manual specifies, however:
An attack is prohibited if, during the planning phase, the available information makes it foreseeable that the damage to the civilian population and/or to civilian objects which the attack will cause is excessive in relation to the military advantage anticipated from the attack as a whole.
The manual further states that “launching an indiscriminate attack affecting the civilian population or civilian objects which would be excessive in relation to the military advantage anticipated” constitutes a grave breach.
Spain
Spain’s LOAC Manual (2007) states:
2.5. PRINCIPLE OF PROPORTIONALITY
While the principle of military necessity alters the normal conduct of combatants, the principle of proportionality seeks to limit the harm and damage caused by military operations, acknowledging that, with the use of modern methods and means of warfare, it is unlikely that the impact will be confined to military objectives and there is likely to be incidental loss of civilian life, injury to civilians and collateral damage to civilian objects. The principle of proportionality obliges military commanders to weigh the anticipated military advantage that it expects to gain with the attack against the incidental harm and collateral damage that it could cause. The principle of proportionality is established, in general terms, in the prohibition on using means and methods of warfare capable of causing superfluous injury or unnecessary suffering and, in specific terms, in the provisions listed below.
2.5.a. PRINCIPLE OF PROPORTIONALITY IN PLANNING
It is prohibited to launch an attack on a military objective when, based on information available in the planning phase, it could be expected to lead to casualties among the civilian population or cause damage to civilian property which would be excessive in relation to the military advantage anticipated from the attack considered as a whole.
Sweden
Sweden’s IHL Manual (1991) considers that the principle of proportionality as contained in Article 51(5)(b) of the 1977 Additional Protocol I reflects customary international law.
Switzerland
Switzerland’s Basic Military Manual (1987) states: “If the military advantage is not proportionate to the damage [suffered by the civilian population], [commanders] must cancel an attack”.
The manual further states that “an attack which is launched without making any distinction [between civilians and civilian objects on the one hand and military objectives on the other hand] and which may affect the civilian population or civilian objects in the knowledge that the attack will cause loss of human life, injuries to civilians and damage to civilian objects which would be excessive in the sense of Article 57(2)(a)(iii) [of the 1977 Additional Protocol I]” constitutes a grave breach.
Togo
Togo’s Military Manual (1996) requires respect for the principle of proportionality. The manual states:
A military action is proportionate if it does not cause loss or damage to civilians which is excessive in relation to the expected overall result. This rule cannot justify unlimited destruction or attacks against civilians and civilian objects as such.
The manual also states:
The principle of proportionality requires that needless suffering and damage be avoided. Pursuant to this principle, all forms of violence which are not indispensable to gain superiority over an enemy are prohibited.
Ukraine
Ukraine’s IHL Manual (2004) states:
Principle of proportionality means that the parties to the conflict during hostilities must refrain from damaging civilian objects and causing losses of human population that would be excessive in order to obtain sufficient advantage in strength over the enemy.
The principle of proportionality must not be used to justify unlimited damage or attacks against civilian persons and objects.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) states:
In defended towns and localities modern methods of bombardment will inevitably destroy many buildings and sites which are not military objectives. Such destruction, if incidental to the bombardment of military objectives, is not unlawful.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states:
An attack is not to be launched, or is to be cancelled, suspended or re-planned, if “the attack 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 manual further states: “The fact that a military objective is located in a populated area means that civilians and civilian objects may legitimately suffer indirectly if those objectives are attacked, subject to the rule of proportionality.”
United States of America
The US Field Manual (1956) states, in the context of sieges and bombardments, that “loss of life and damage to property must not be out of proportion to the military advantage to be gained”.
United States of America
The US Air Force Pamphlet (1976) states:
Complementing the principle of necessity and implicitly contained within it is the principle of humanity which forbids the infliction of suffering, injury or destruction not actually necessary for the accomplishment of legitimate military purposes. This principle of humanity results in a specific prohibition against unnecessary suffering, a requirement of proportionality and a variety of more specific rules examined later. The principle of humanity also confirms the basic immunity of civilian populations and civilians from being objects of attack during armed conflict. This immunity of the civilian population does not preclude unavoidable incidental civilian casualties which may occur during the course of attacks against military objectives, and which are not excessive in relation to the concrete and direct military advantage anticipated.
United States of America
The US Air Force Commander’s Handbook (1980) states that “a weapon is not unlawful simply because its use may cause incidental or collateral casualties to civilians, as long as those casualties are not foreseeably excessive in light of the expected military advantage”.
United States of America
The US Instructor’s Guide (1985) states:
In attacking a military target, the amount of suffering or destruction must be held to the minimum necessary to accomplish the mission. Any excessive destruction or suffering not required to accomplish the objective is illegal as a violation of the law of war.
United States of America
The US Naval Handbook (1995) states:
It is not unlawful to cause incidental injury to civilians or collateral damage to civilian objects, during an attack upon a legitimate military objective. Incidental injury or collateral damage must not, however, be excessive in light of the military advantage anticipated by the attack.
The manual further specifies that “a weapon is not indiscriminate simply because it may cause incidental or collateral civilian casualties, provided such casualties are not foreseeably excessive in light of the expected military advantage to be gained”.
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Argentina
Argentina’s Draft Code of Military Justice (1998) punishes any soldier who carries out or orders the commission of “excessive” attacks.
Armenia
Under Armenia’s Penal Code (2003), launching, during an armed conflict, an “indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause loss of life to civilians or damage to civilian objects excessive in relation to the concrete and direct military advantage anticipated” constitutes a crime against the peace and security of mankind.
Australia
Australia’s Geneva Conventions Act (1957), as amended in 2002, provides: “A person who, in Australia or elsewhere, commits a grave breach … of [the 1977 Additional Protocol I] is guilty of an indictable offence.”
The grave breaches provisions in this Act were removed in 2002 and incorporated into the Criminal Code Act (1995).
Australia
Australia’s Criminal Code Act (1995), as amended in 2007, states with respect to serious war crimes that are committed in the course of an international armed conflict:
268.38 War crime – excessive incidental death, injury or damage
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator launches an attack; and
(b) the perpetrator knows that the attack will cause incidental death or injury to civilians; and
(c) the perpetrator knows that the death or injury will be of such an extent as to be excessive in relation to the concrete and direct military advantage anticipated; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator launches an attack; and
(b) the perpetrator knows that the attack will cause:
(i) damage to civilian objects; or
(ii) widespread, long-term and severe damage to the natural environment; and
(c) the perpetrator knows that the damage will be of such an extent as to be excessive in relation to the concrete and direct military advantage anticipated; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Australia
Australia’s ICC (Consequential Amendments) Act (2002) incorporates in the Criminal Code the war crimes defined in the 1998 ICC Statute, including launching an attack which causes “excessive incidental death, injury or damage” in international armed conflicts.
Belarus
Belarus’s Criminal Code (1999) provides that it is a war crime “to launch an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects”.
Belgium
Belgium’s Penal Code (1867), as amended in 2003, provides:
War crimes envisaged in the 1949 [Geneva] Conventions … and in the [1977 Additional Protocols I and II] … , as well as in Article 8(2)(f) of the [1998 ICC Statute], and listed below, … constitute crimes under international law and shall be punished in accordance with the provisions of the present title … :
22. intentionally launching an attack in the knowledge that such attack will cause incidental loss of life, injury to civilians or damage to civilian objects … which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.
Belgium
Belgium’s Law concerning the Repression of Grave Breaches of the Geneva Conventions and their Additional Protocols (1993), as amended in 1999, provides that it is a crime under international law to launch
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.
Belgium
Belgium’s Law relating to the Repression of Grave Breaches of International Humanitarian Law (1993), as amended in 2003, provides:
War crimes envisaged in the 1949 [Geneva] Conventions … and in the [1977 Additional Protocols I and II] … , as well as in Article 8(2)(f) of the [1998 ICC Statute], and listed below, … constitute crimes under international law and shall be punished in accordance with the provisions of the present title … :
12. intentionally launching an attack in the knowledge that such attack will cause incidental loss of life, injury to civilians or damage to civilian objects … which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.
Brazil
The Report on the Practice of Brazil (1997) considers that the provision in Brazil’s Military Penal Code which punishes the excessive execution of an order is relevant in the context of the principle of proportionality.
Burundi
Burundi’s Law on Genocide, Crimes against Humanity and War Crimes (2003) states:
[The following are] considered as war crimes:
…
B. Other serious violations of the laws and customs applicable in international armed conflicts, within the established framework of international law, namely, any of the following acts:
d) launching a deliberate 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.
Canada
Canada’s Geneva Conventions Act (1985), as amended in 2007, provides that “every person who, whether within or outside Canada, commits a grave breach [of the 1977 Additional Protocol I] … is guilty of an indictable offence”.
Canada
Canada’s Crimes against Humanity and War Crimes Act (2000) provides that the war crimes defined in Article 8(2) of the 1998 ICC Statute are “crimes according to customary international law” and, as such, indictable offences under the Act.
Colombia
Colombia’s Penal Code (2000) imposes a criminal sanction on “anyone who, during an armed conflict, carries out or orders the carrying out of … excessive attacks”.
Colombia
Colombia’s Directive No. 10 (2007), whose objective is to prevent the killing of protected persons, states: “The principles of legality, distinction, necessity and proportionality must guide all military action.”
Congo
The Congo’s Genocide, War Crimes and Crimes against Humanity Act (1998) defines war crimes with reference to the categories of crimes defined in Article 8 of the 1998 ICC Statute.
Cook Islands
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]”.
Cyprus
Cyprus’s Additional Protocol I Act (1979) punishes “any person who, whatever his nationality, commits in the Republic or outside the Republic any grave breach of the provisions of the Protocol, or takes part or assists or incites another person in the commission of such a breach”.
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment].
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment].
El Salvador
The Draft Amendments to the Penal Code (1998) of El Salvador provide for a prison sentence for anyone who, in the context of an international or a non-international armed conflict, launches
an indiscriminate attack affecting the civilian population, in the knowledge that such attack will cause death or injury among the civilian population or damage to civilian objects, which is excessive in relation to the concrete and direct military advantage anticipated.
Finland
Finland’s Criminal Code (1889), as amended in 2008, provides that any person who “initiates an attack that causes the loss of human life or injuries … that are clearly excessive in comparison with the anticipated real and direct military benefit” shall be “sentenced for a war crime to imprisonment for at least one year or for life”. (emphasis in original)
Georgia
Under Georgia’s Criminal Code (1999), any war crime provided for by the 1998 ICC Statute, which is not explicitly mentioned in the Code, is a crime, such as “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” in international armed conflicts.
Germany
Germany’s Law Introducing the International Crimes Code (2002) punishes anyone who, in connection with an international or a non-international armed conflict, “carries out an attack by military means and definitely anticipates 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”.
Iraq
Iraq’s Law of the Supreme Iraqi Criminal Tribunal (2005) identifies the following as a serious violation of the laws and customs of war applicable in international armed conflicts:
Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or civilian damage which would be clearly excessive in relation to the concrete and direct overall military advantages anticipated.
Ireland
Ireland’s Geneva Conventions Act (1962), as amended 1998, provides that grave breaches of the 1977 Additional Protocol I are punishable offences.
The Act adds that any “minor breach” of the 1977 Additional Protocol I, including violations of Article 51(5)(b), is also a punishable offence.
Lebanon
Under the Draft Amendments to the Code of Military Justice (1997) of Lebanon, “an indiscriminate attack against civilian populations or civilian objects in the knowledge that such an attack will cause excessive loss of life, injury to civilians or damage to civilian objects” constitutes a war crime.
Mali
Under Mali’s Penal Code (2001), the following constitutes a war crime in international armed conflicts:
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.
Netherlands
Under the International Crimes Act (2003) of the Netherlands, it is a crime, during an international armed conflict, to commit
the following acts, when they are committed intentionally and in violation of the relevant provisions of Additional Protocol (I) and cause death or serious injury to body or health: … launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects.
Likewise, “intentionally launching an attack in the knowledge that such an 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” is also a crime, when committed in an international armed conflict.
New Zealand
New Zealand’s Geneva Conventions Act (1958), as amended in 1987, provides that “any person who in New Zealand or elsewhere commits, or aids or abets or procures the commission by another person of, a grave breach … of [the 1977 Additional Protocol I] is guilty of an indictable offence”.
New Zealand
Under New Zealand’s International Crimes and ICC Act (2000), war crimes include the crime defined in Article 8(2)(b)(iv) of the 1998 ICC Statute.
Nicaragua
Nicaragua’s Draft Penal Code (1999) punishes anyone who, during an international or internal armed conflict,
launches an indiscriminate attack affecting the civilian population, in the knowledge that such attack will cause incidental loss of civilian life, injury to civilians or damage to civilian objects, which would be excessive in relation to the concrete and direct military advantage anticipated.
Niger
According to Niger’s Penal Code (1961), as amended in 2003, it is a war crime to launch against persons and objects protected under the 1949 Geneva Conventions or their Additional Protocols of 1977
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.
Norway
Norway’s Military Penal Code (1902), as amended in 1981, provides:
Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the two additional protocols to [the 1949 Geneva] Conventions … is liable to imprisonment.
Peru
Peru’s Code of Military and Police Justice (2006) states:
A member of the military or police shall be imprisoned for a period of no less than eight and no more than 15 years if he or she in the context of an international or non-international armed conflict:
3. Directs an attack by any means in the knowledge that such an attack will cause incidental loss of life or injury to civilians or damage to civilian objects which would be excessive in relation to the concrete military advantage anticipated.
Republic of Korea
The Republic of Korea’s ICC Act (2007) provides for the punishment of anyone who commits the war crime of “[l]aunching an attack with the knowledge that such attack would cause death or injury to civilians or damage to civilian objects clearly excessive in relation to the concrete and direct overall military advantage anticipated” in both international and non-international armed conflicts.
Rwanda
Rwanda’s Law Repressing the Crime of Genocide, Crimes against Humanity and War Crimes (2003) provides:
Article: 8
A war crime is one of the following acts, committed during armed conflicts against persons or property protected under the Geneva Conventions of 12 August 1949 and its Additional Protocols I and II of 8 June 1977:
9° launching a deliberate attack against the civilian population or against its objects, in the knowledge that such attack will cause loss of life or injury or grave damage to their objects, which would be judged as excessive in relation to the military advantage anticipated;
Shall be punished by one of the following penalties any person having committed one of the war crimes provided for in Article 8 of this law:
1° the death penalty or life imprisonment where he has committed a crime provided for in point 1°, 2°, 3°, 9°, 11° or 16° of Article 8 of this law.
Senegal
Senegal’s Penal Code (1965), as amended in 2007, states that the following constitutes a war crime:
b) [O]ther serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:
3. launching a deliberate 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.
Serbia
Serbia’s Criminal Code (2005) states that ordering or committing an “attack against military targets knowing that such an attack would cause collateral damage among civilians or damage to civilian buildings that is obviously disproportionate to the military effect” constitutes a war crime.
Spain
Spain’s Penal Code (1995) punishes “anyone who, during an armed conflict, … carries out or orders an … excessive attack”.
South Africa
South Africa’s ICC Act (2002) reproduces the war crimes listed in the 1998 ICC Statute, including in international armed conflicts:
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.
Sweden
Under Sweden’s Penal Code (1962), as amended in 1998, “initiating an indiscriminate attack knowing that such attack will cause exceptionally heavy losses or damage to civilians or to civilian property” constitutes a crime against international law.
Trinidad and Tobago
Under Trinidad and Tobago’s Draft ICC Act (1999), it is a punishable offence to commit a war crime as defined in Article 8(2)(b)(iv) of the 1998 ICC Statute.
United Kingdom of Great Britain and Northern Ireland
The UK Geneva Conventions Act (1957), as amended in 1995, punishes “any person, whatever his nationality, who, whether in or outside the United Kingdom, commits, or aids, abets or procures the commission by any other person of, a grave breach of … [the 1977 Additional Protocol I]”.
United Kingdom of Great Britain and Northern Ireland
Under the UK ICC Act (2001), it is a punishable offence to commit a war crime as defined in Article 8(2)(b)(iv) of the 1998 ICC Statute.
Uruguay
Uruguay’s Law on Cooperation with the ICC (2006) states:
26.2. Persons and objects affected by the war crimes set out in the present provision are persons and objects which international law protects in international or internal armed conflict.
26.3. The following are war crimes:
12. 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.
Zimbabwe
Zimbabwe’s Geneva Conventions Act (1981), as amended in 1996, punishes “any person, whatever his nationality, who, whether in or outside Zimbabwe, commits any such grave breach of … [the 1977 Additional Protocol I]”.
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Argentina
The Report on the Practice of Argentina states that in a case concerning armed operations against insurgents in 1985, “the National Court of Appeals referred to the principle of proportionality, which it considered to be a customary norm based on its repeated doctrinal approbation”.
Colombia
In 2006, in the Constitutional Case No. T-165/06, the First Appeals Chamber of Colombia’s Constitutional Court stated:
[W]ith regard to the conduct of hostilities, it is important to note that IHL is ruled by fundamental principles, such as the principles of distinction, limitation and proportionality. Indeed, … the principle of proportionality which, based on the fact that an armed conflict necessarily produces unwanted effects on the civilian population and civilian objects, prohibits military actions that predictably and intentionally result in deaths o
r wounded among the civilian population or harm to civilian property which would be excessive in relation to the concrete and direct military advantage sought.
Colombia
In 2007, in the Constitutional Case No. C-291/07, the Plenary Chamber of Colombia’s Constitutional Court stated:
[The principle of proportionality] requires parties to an armed conflict to abstain from carrying out a military operation whenever it is possible to foresee that the damage expected to be caused to the civilian population or civilian property would be excessive in relation to the concrete and direct military advantage anticipated. [footnote in original omitted]
Israel
In its judgement in the Public Committee against Torture in Israel case in 2006, Israel’s High Court of Justice stated:
A. The Principle of Proportionality and its Application in Customary International Law
41. The principle of proportionality is a general principle in law. It is part of our legal conceptualization of human rights (see §8 of Basic Law: Human Dignity and Freedom; see also AHARON BARAK, A JUDGE IN A DEMOCRATIC SOCIETY 346 (2004) [SHOFET BECHEVRA DEMOKRATIT], hereinafter BARAK). It is an important component of customary international law (see ROSALYN HIGGINS, PROBLEMS AND PROCESS – INTERNATIONAL LAW AND HOW WE USE IT 219 (1994); Delbruck, Proportionality, ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 1144 (1997). It is an integral part of the law of self defense. It is a substantive component in protection of civilians in situations of armed conflict (see DINSTEIN, at p. 119; Gasser, at p. 220; CASSESE, at p. 418; BEN-NAFTALI & SHANI, at p. 154; and HENCKAERTS & DOSWALD-BECK, at p. 60; Judith Gardam, Proportionality and Force in International Law, 87 AMERICAN JOURNAL OF INTERNATIONAL LAW 391 (1993), hereinafter “Gardam”; J.S. PICTET, DEVELOPMENT AND PRINCIPLES OF INTERNATIONAL HUMANITARIAN LAW 62 (1985); William J. Fenrick, The Rule of Proportionality and Protocol I in Conventional Warfare, 98 MILITARY LAW REVIEW 91 (1982); T. MERON, HUMAN RIGHTS AND HUMANITARIAN NORMS AS CUSTOMARY INTERNATIONAL LAW 73 (1989)). It is a central part of the law of belligerent occupation (see Hass, at p. 461; The Municipality of Bethlehem; Beit Sourik, at p. 836; HCJ 1661/05 Gaza Coast Regional Council v. The Knesset, 59(2) PD 481, paragraph 102 of the judgment of The Court; Mara’abe, paragraph 30 of my judgment; see also DINSTEIN, at p. 119; HENCKAERTS & DOSWALD-BECK, at p. 60). In a long list of judgments, the Supreme Court has examined the authority of the military commander in the area according to the standards of proportionality. It has done so, inter alia, regarding restriction of place of residence (Ajuri); regarding encirclement of villages and positioning checkpoints on the access roads to and from them in order to frustrate terrorism (HCJ 2847/03 Alauna v. The Commander of IDF Forces in Judea and Samaria (unpublished)); regarding harm to property of protected persons due to army operations (see HCJ 9525/00 Ali Skai v. The State of Israel (unpublished)); regarding the safeguarding of freedom of worship and the right to access to holy places (Hass); regarding demolition of houses due to operational needs (see HCJ 4219/02 Gusin v. The Commander of IDF Forces in the Gaza Strip, 56(4) PD 608); regarding the laying of siege (Almandi); regarding the erection of the security fence (Beit Sourik; Mara’abe).
B. Proportionality in an International Armed Conflict
42. The principle of proportionality is a substantial part of international law regarding armed conflict (compare §51(5)(b) and 57 of The First Protocol [1977 Additional Protocol I] (see HENCKEARTS & DOSWALD-BECK, at p. 46; BEN-NAFTALI & SHANI, at p. 154)). That law is of customary character (see HENCKEARTS & DOSWALD-BECK, at p. 53; DUFFY, at p. 235; and Prosecutor v. Kupreskic, ICTY Case no. IT-95-16 (2000)). The principle of proportionality arises when the military operation is directed toward combatants and military objectives, or against civilians at such time as they are taking a direct part in hostilities, yet civilians are also harmed. The rule is that the harm to innocent civilians caused by collateral damage during combat operations must be proportionate (see DINSTEIN, at p. 119). Civilians might be harmed due to their presence inside of a military target, such as civilians working in an army base; civilians might be harmed when they live or work in, or pass by, military targets; at times, due to a mistake, civilians are harmed even if they are far from military targets; at times civilians are forced to serve as “human shields” from attack upon a military target, and they are harmed as a result. In all those situations, and in other similar ones, the rule is that the harm to the innocent civilians must fulfill, inter alia, the requirements of the principle of proportionality.
43. The principle of proportionality applies in every case in which civilians are harmed at such time as they are not taking a direct part in hostilities. Judge Higgins pointed that out in the Legality of Nuclear Weapons case:
“The principle of proportionality, even if finding no specific mention, is reflected in many provisions of Additional Protocol I to the Geneva Conventions of 1949. Thus even a legitimate target may not be attacked if the collateral civilian casualties would be disproportionate to the specific military gain from the attack” (p. 587).
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.
United States of America
The Agent Orange case before the US Eastern States District Court in 2005 involved a class action suit filed on behalf of various Vietnamese nationals and an organization, the Vietnamese Association for Victims of Agent Orange/Dioxin, against Dow Chemical and other US chemical manufacturers for harms allegedly done to them and their land through the United States’ use of Agent Orange and other herbicides during the Vietnam War from 1965 to 1971 and by the South Vietnamese government’s subsequent use of such herbicides until 1975. In dismissing the claims, the Court found that, while recognizing the evolution of international law since 1975, the use of herbicides did not violate, at the time they were used, either customary or conventional international law binding on the United States. On the question of proportionality and the use of herbicides, the Court stated:
The concept of military necessity or proportionality is a well accepted international norm governing the conduct of war. The United States Army’s manual, The Law of Land Warfare, states the rule succinctly: “[L]oss of life and damage to property must not be out of proportion to the military advantage to be gained.” U.S. DEP’T OF THE ARMY, FIELD MANUAL NO. 27-10, THE LAW OF LAND WARFARE ¶ 41 (1956).
…
American courts are fully capable of applying the proportionality concept in civil litigations as demonstrated by their handling of comparative negligence, proximate cause and other sophisticated doctrines. Nevertheless, the criminal procedural aspects of proportionality, the inherently subjective judgments necessary to determine whether the concept applies, and the dearth of illustrative prosecutions, all demonstrate that federal courts should pause before recognizing a civil private cause of action under the ATS [Alien Tort Statute] on the theory that the United States may have properly used herbicides in some situations for legitimate military purposes, but that it used too much of them in too many places … It cannot be shown that the military in the field – or the executive and legislative branches at home – violated proportionality norms when using herbicides in the Vietnam War.
As plaintiffs argue, a consensus among nations may gradually solidify into recognized international law provided that such consensus is reflected in state practice accompanied by opinio juris. No such understanding or consensus existed with respect to herbicides prior to 1975 – possibly in part because of the proportionality problem.
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Australia
During the Second Reading Speech of the Geneva Conventions Amendment Bill 1990 in the House of Representatives, the purpose of which was to amend the Geneva Conventions Act of 1957 so as to enable Australia to ratify the 1977 Additional Protocol I, Australia’s Attorney-General stated:
Additionally, the protocols do not require no civilian casualties. That is not in the game at all. The protocols do not say that in any clause. The protocols require the military leadership to assess whether or not civilian losses would be in proportion to the military objectives to be achieved by the attack in question. We all know that it is not always easy to get the right balance in these areas – that is accepted – but I think that it is just about being obtained here. It is certainly being done as well as it can be.
Australia
In a press release issued in 1991, an Australian Senator asserted that Article 51(5)(b) of the 1977 Additional Protocol I would bar Australian ships from providing “naval gunfire support” (NGS) to an amphibian landing in Kuwait and from engaging batteries located in a heavily populated port. 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.
In response to these statements, the Assistant Chief of the Defence Force - Operations (ACOPS) recalled first that Australia was not yet legally bound by the 1977 Additional Protocol I and that even if it had been, such action would not be in breach of Article 51(5)(b). On the basis of the US and Australian Rules of Engagement and given the very high targeting standards shown by the US authorities, ACOPS deemed that both the Australian government and the warship commanders “can confidently expect that NGS targeting tasks and associated co-ordinates have been rigorously scrutinised to ensure a lawful balance between incidental civilian losses and the anticipated concrete and direct military advantage”. ACOPS also differed with the Senator’s opinion because even if, in retrospect, it should emerge that excessive civilian casualties resulted from such an operation, the Australian warship commanders would not incur personal responsibility for a grave breach of the 1977 Additional Protocol I since such a grave breach can only result “from a ‘wilful’ decision, i.e. deliberate disregard for consequences whilst having full knowledge”.
Bosnia and Herzegovina
The Report on the Practice of Bosnia and Herzegovina states: “During the aggression against the Republic of Bosnia and Herzegovina the aggressor didn’t respect the principle of proportionality in attack, but systematically violated it during the whole time of the aggression.” It provides a number of examples in this respect.
Botswana
The Report on the Practice of Botswana recalls that Article 51(5)(b) of the 1977 Additional Protocol I provides for the principle of proportionality, but it argues that its essence is not well defined because there are no clear criteria concerning the distinction between indiscriminate and disproportionate attacks.
Brazil
The Report on the Practice of Brazil states that the principle of proportionality binds Brazil, since Brazil has ratified the 1949 Geneva Conventions and their 1977 Additional Protocols, and according to the Constitution of Brazil, international treaties are automatically applicable once ratified and published in the official journal.
Cuba
The Report on the Practice of Cuba states that the principle of proportionality has been applied “in relation to armaments and the means of combat, taking into account the humanitarian principle enshrined in Cuban military doctrine”. The report cites the actions resulting from the Bay of Pigs invasion as an illustration of this point.
Egypt
In its written statement submitted to the ICJ in the Nuclear Weapons case in 1995, Egypt stated that the use of nuclear weapons cannot at all be legal because they “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”.
Egypt
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.”
France
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.
German Democratic Republic
At the CDDH, the German Democratic Republic stated that it considered:
Protection of the civilian population could not be improved if the concept of proportionality was retained. 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.
Germany
In 1983, in reply to a question in parliament about the principle of proportionality in attack, the German government declared that the principle contained in Article 51(5) of the 1977 Additional Protocol I required decisions on a case-by-case basis and that no abstract calculations were possible.
Germany
In 1996, the German government reminded the Turkish government to respect the principle of proportionality during hostilities in northern Iraq.
Hungary
At the CDDH, Hungary stated:
The debate had shown that opinion in the [Third] Committee was divided on the principle of proportionality … [A] rule well established in international law should be reflected in practice and should produce the intended effects. Yet the number of civilians victims had increased alarmingly over the past few years: accordingly, either the rule was not well established and hence not binding; or it existed and could not be applied in armed conflicts; or it existed and was applied, but the results of its application provided the best argument against it. The [proposed] amendments … improved the ICRC text and maintained the rule of proportionality, but did not provide a satisfactory solution of the problem.
India
In its written statement submitted to the ICJ in the Nuclear Weapons case in 1995, India stated:
The relationship between military advantage and the collateral damage involved also determines the legality of use of a weapon or a method of warfare employed. If the collateral damage is excessive in relation to the military advantage, the attack is forbidden.
Iraq
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 aim is to give due regard to humanitarian requirements and to lessen civilian suffering.
Islamic Republic of Iran
In its written statement submitted to the ICJ in the Nuclear Weapons case in 1995, the Islamic Republic of Iran stated: “Some of the principles of humanitarian international law from which one can deduce the illegitimacy of the use of nuclear weapons are: … The existence of proportionality between military advantages gained and the used weapons and methods.”
Israel
In 2006, Israel’s Ministry of Foreign Affairs stated:
3. Proportionality
The second legal requirement is that the potential harm to civilians and civilian objects expected in any attack must be proportionate to the military advantage anticipated.
Major General A.P.V. Rogers, a former Director of British Army Legal Services, explains the rationale behind this principle:
Although they are not military objectives, civilians and civilian objects are subject to the general dangers of War in the sense that attacks on military personnel and military objectives may cause incidental damage. It may not be possible to limit the radius of effect entirely to the objective to be attacked … Members of the armed forces are not liable for such incidental damage, provided it is proportionate to the military gain expected of the attack.
The answers to these questions are not simple. It may be necessary to resolve them on a case by case basis, and the answers may differ depending on the background and values of the decision maker. It is unlikely that a human rights lawyer and an experienced combat commander would assign the same relative values to military advantage and to injury to noncombatants. … It is suggested that the determination of relative values must be that of the “reasonable military commander.”
cannot be in relation to any specific prior injury – it has to be in relation to the overall legitimate objective of ending the aggression
…
… in relation to the question of proportionality, the IDF Manual states:
Even when it is not possible to isolate the civilians from an assault and there is no other recourse but to attack, the commander is required to refrain from an attack that is expected to inflict harm on the civilian population, which is disproportionate to the expected military gain.
Israel
In 2007, Israel’s Ministry of Foreign Affairs stated in a diplomatic note:
Proportionality
A further legal requirement is that the potential harm to civilians and civilian objects expected in any attack must be proportionate to the military advantage anticipated.
Major General A.P.V. Rogers, a former Director of British Army Legal Services, explains the rationale behind this principle:
Although they are not military objectives, civilians and civilian objects are subject to the general dangers of War in the sense that attacks on military personnel and military objectives may cause incidental damage. It may not be possible to limit the radius of effect entirely to the objective to be attacked … Members of the armed forces are not liable for such incidental damage, provided it is proportionate to the military gain expected of the attack.
The answers to these questions are not simple. It may be necessary to resolve them on a case by case basis, and the answers may differ depending on the background and values of the decision maker. It is unlikely that a human rights lawyer and an experienced combat commander would assign the same relative values to military advantage and to injury to noncombatants. … It is suggested that the determination of relative values must be that of the “reasonable military commander.”
cannot be in relation to any specific prior injury – it has to be in relation to the overall legitimate objective of ending the aggression
…
… in relation to the question of proportionality, the IDF position is clear:
Even when it is not possible to isolate the civilians from an assault and there is no other recourse but to attack, the commander is required to refrain from an attack that is expected to inflict harm on the civilian population, which is disproportionate to the expected military gain.
Jordan
Prior to the adoption of UN General Assembly Resolution 47/37 in 1992 on the protection of the environment in times of armed conflict, Jordan and the United States submitted a memorandum to the Sixth Committee of the UN General Assembly entitled “International Law Providing Protection to the Environment in Times of Armed Conflict”, which stated that “the customary rule that prohibits attacks which reasonably may be expected at the time 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, are prohibited” provides protection for the environment in times of armed conflict.
Kuwait
The Report on the Practice of Kuwait affirms that numerous statements by Kuwait highlight the importance of the principle of proportionality in attack. The report specifies that there is an obvious violation of the principle of proportionality if no military advantage could be expected from the destruction of an object. This point was illustrated by the country’s vigorous protests over violations of the principle of proportionality committed by the Iraqi armed forces in setting oil wells and other facilities on fire without any hope of gaining a military advantage. The report notes that it is the opinio juris of Kuwait that the principle of proportionality must be respected, and that objects whose destruction provide no military advantage should be spared.
Malaysia
In its written statement submitted to the ICJ in the Nuclear Weapons (WHO) case in 1995, Malaysia quoted with approval the US statement in the same case.
Netherlands
In its written statement submitted to the ICJ in the Nuclear Weapons case in 1995, the Netherlands stated: “The general principles of international humanitarian law in armed conflict also apply to the use of nuclear weapons … in particular … the prohibition on attacking military targets if this would cause disproportionate harm to the civilian population”.
Netherlands
In 2003, in reply to written questions by Parliament concerning, inter alia, guidelines for aerial bombardment, the Minister of Defence of the Netherlands stated:
The guidelines for target selection during aerial bombardments are based on the relevant provisions of International Humanitarian Law (IHL). Amongst others, all reasonable precautionary measures must be taken to avoid civilian casualties and to prevent collateral damage to civilians objects. In practice, Dutch fighter pilots will not attack targets, when it is likely that civilians will be present. Also, an attack may not be carried out if the collateral damage to be expected reasonably does not relate to the actual and direct military advantage.
New Zealand
In its written statement submitted to the ICJ in the Nuclear Weapons case in 1995, New Zealand stated:
Discrimination between combatants and those who are not directly involved in armed conflict is a fundamental principle of international humanitarian law. While it is prohibited to actually target civilians and civilian objects, there is no absolute protection from collateral damage. 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.
Nigeria
According to the Report on the Practice of Nigeria, it is Nigeria’s opinio juris that the rule of proportionality forms part of customary international law.
The report also notes that the principle of proportionality was violated by the Nigerian air force on numerous occasions during the civil war. Senior military officials and aircraft pilots were reported to have regretted such violations.
Norway
In 2006, during a debate in the UN Security Council, the Permanent Representative of Norway stated regarding the situation in Gaza: “The current operations raise a number of issues of international law, whether they are police operations or military operations. According to international law any use of violence shall be necessary and proportionate.”
Norway
In 2006, during a UN Security Council meeting, the Norwegian Minister for Foreign Affairs stated with regard to the situation in Lebanon and Gaza: “While recognizing Israel’s inherent right to self-defence, all use of armed force must satisfy [the] requirements of … proportionality. … Indiscriminate and excessive use of force [is] prohibited. Norway urges Israel not to resort to disproportionate action.”
Pakistan
The Report on the Practice of Pakistan affirms that the practice of Pakistan is consistent with the principle of proportionality.
Poland
At the CDDH, Poland stated:
The rule of proportionality as expressed in the ICRC text would give military commanders the practically unlimited right to decide to launch an attack if they considered that there would be a military advantage. Civilian suffering and military advantage were two values that could not conceivably be compared.
Republic of Korea
According to the Report on the Practice of the Republic of Korea, it is the Republic of Korea’s opinio juris that the principle of proportionality in attack is a requirement of international law.
Romania
At the CDDH, Romania stated that it had always opposed the “rule of proportionality” and considered that:
It amounted to legal acceptance of the fact that one part of the civilian population was to be deliberately sacrificed to real or assumed military advantages and it gave military commanders the power to weigh their military advantage against the probable losses among the civilian population during an attack against the enemy. Military leaders would tend to consider military advantage to be more important than the incidental loss. The principle of proportionality was therefore a subjective principle which could give rise to serious violations.
Russian Federation
The Report on the Practice of the Russian Federation considers the principle of proportionality the “weakest point of IHL” because
IHL itself does not clearly enough define the criteria of respecting the balance between the requirements of humanism and military necessity. This issue is not treated in any of the available documents. It remains the exclusive domain of commanders at the helm of military operations … Armed conflicts on the territory of the former USSR demonstrate that conflicting parties do not observe in their acts the limitations set forth in IHL. We are sorry to say that we do not know of any occurrence when a party to a conflict complained of the non-respect of the principle of proportionality by the parties. 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. In this connection, we can point out that the large-scale military operations of the federal troops in Chechnya were at the beginning contrary to the principle of proportionality. In the armed forces of the CIS countries there are neither provisions defining the terms of the respect of the principle of proportionality nor provisions envisaging prosecution of individuals who violate this principle.
Rwanda
On 22 April 1995, between 200 and 300 people died in a camp for internally displaced persons in Kibeho in Rwanda. The Rwandan President stated that these deaths were the result of
the same machetes of those who committed the genocide and the massacres. Others were killed during shootings in self-defence by the governmental armed forces and by MINUAR in response to attacks launched by the Interahamwe militia located in the camp of Kibeho.
An international commission investigating the events of Kibeho considered that by using automatic guns and heavier weapons, such as grenades and rocket-launchers, against persons who carried guns and traditional weapons, such as machetes and stones, the Rwandan army had acted disproportionately.
Since no official statement denied this alleged violation of the principle of proportionality in attack, the Report on the Practice of Rwanda concludes that Rwandan practice implicitly confirms the existence of such a norm.
Solomon Islands
In its written statement submitted to the ICJ in the Nuclear Weapons case in 1995, Solomon Islands stated that “the principles of proportionality and humanity are obviously violated” by the use of nuclear weapons.
Spain
On the basis of statements by the Spanish Minister of Foreign Affairs and Minister of Defence, the Report on the Practice of Spain states: “The Spanish government has, in general, advocated respect for the principle of proportionality during the conflict in Chechnya, the Turkish attacks on the Kurds in northern Iraq and the conflict in Bosnia and Herzegovina.”
Sweden
In its written statement submitted to the ICJ in the Nuclear Weapons case in 1995, Sweden stated: “In the case of an attack on a military target, disproportionately substantial damage may not be inflicted on the civilian population or on civilian property.”
Sweden
In 2007, in an answer to a question in Parliament, the Swedish Minister for Trade stated: “It is prohibited to carry out attacks against military targets that entail injuries to the civilian population that are disproportionally extensive compared to the military value of the attack.”
Syrian Arab Republic
At the CDDH, the Syrian Arab Republic stated that it
could not accept the theory of some kind of “proportionality” between military advantages and losses and destruction of the civilian population and civilian objects, or that the attacking force should pronounce on the matter.
Syrian Arab Republic
On the basis of a statement by the Syrian Minister of Foreign Affairs before the UN General Assembly in 1997, the Report on the Practice of the Syrian Arab Republic concludes that the Syrian Arab Republic considers Article 51(5)(b) of the 1977 Additional Protocol I to be a norm of customary international law.
United Kingdom of Great Britain and Northern Ireland
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”.
United Kingdom of Great Britain and Northern Ireland
In 1991, in reply to a question in the House of Lords concerning the Gulf War, the UK Parliamentary Under-Secretary of State for Defence stated:
The Geneva Conventions contain no provisions expressly regulating targeting in armed conflict. The Hague Regulations of 1907 and customary international law do, however, incorporate the twin principles of distinction between military and civilian objects, and of proportionality so far as the risk of collateral civilian damage from an attack on a military objective is concerned. These principles and associated rules of international law were observed at all times by coalition forces in the planning and execution of attacks against Iraq.
United Kingdom of Great Britain and Northern Ireland
In 1993, the United Kingdom government stated:
The Rules of Engagement under which BRITFOR are operating in Bosnia allow them to return fire in self defence if the source can be identified; in doing so, they must attempt to minimise collateral damage and be mindful of the principle of proportionality.
United Kingdom of Great Britain and Northern Ireland
In 1993, in reply to questions in the Foreign Affairs Committee of the House of Commons about the launching of “around 40 Cruise missiles by the Americans which resulted in the killing of innocent civilians in places like the Al Rashid Hotel”, the UK Minister of Foreign Affairs stated:
I do not believe the action was disproportionate. You know what it was aimed against; it was aimed against a plant that the Iraqis had themselves admitted was producing material for their nuclear programme … It seemed to me a proportionate target. It looks and sounds as if … one of the Cruise missiles went astray and killed innocent civilians in the Al Rashid Hotel. That clearly is to be deplored but I do not think the action as a whole can be regarded as disproportionate.
United Kingdom of Great Britain and Northern Ireland
In its written statement submitted to the ICJ in the Nuclear Weapons case in 1995, the United Kingdom stated:
The principle of proportionality requires that even a military objective should not be attacked if to do so would cause collateral civilian casualties or damage to civilian objects which would be excessive in relation to the concrete and direct military advantage anticipated from the attack.
United Kingdom of Great Britain and Northern Ireland
In 2003, in reply to a written question in the House of Commons, the UK Minister of State for the Armed Forces, Ministry of Defence, wrote:
Cluster bombs have been used against targets for which they were the most appropriate available weapon and where they could be used in accordance with international law, including with the principles of proportionality and discrimination.
United Kingdom of Great Britain and Northern Ireland
In 2003, in reply to a written question in the House of Commons, the UK Secretary of State for Defence wrote:
The military campaign is crafted around the principle of minimum use of force. We attack only military objectives and combatants subject to the constraints of proportionality. If there is any expectation that harm will be caused to civilians, this must not be excessive when set against the direct and concrete military advantage anticipated from the attack.
United Kingdom of Great Britain and Northern Ireland
In 2003, in reply to a written question in the House of Commons asking whether he would “make it his policy not to use cluster bombs in urban or populated areas in Iraq”, the UK Secretary of State for Defence wrote:
Cluster bombs are only used strictly in accordance with international law. This includes the principles of distinction and proportionality as well as precautionary measures to be taken in planning and conducting an attack, as contained in the First Additional Protocol of 1977 to the Geneva Conventions of 1949. The targeting process takes account of these principles in matching the type of weapon used to the target to be attacked. There will be circumstances when it would be considered more appropriate to use other munitions than cluster bombs. These circumstances are more likely to arise in urban or populated areas as cluster bombs engage targets that cover an area.
United Kingdom of Great Britain and Northern Ireland
In 2004, in a written answer to a question concerning, inter alia, guidance given to UK forces to ensure compliance with the principles of necessity and proportionality, the UK Parliamentary Under-Secretary of State, Ministry of Defence, stated:
All use of force is governed by United Kingdom forces’ rules of engagement (ROE). The ROE take into account the UK’s obligations under national and international law, of which necessity and proportionality are fundamental principles.
United Kingdom of Great Britain and Northern Ireland
In 2006, in a written answer to a question concerning, inter alia, “the implications under the Geneva Conventions of the targeting by Israel of civilian facilities and infrastructure in Gaza”, the UK Minister of State for the Middle East, Foreign and Commonwealth Office, stated:
We are opposed to the targeting of civilian facilities and call upon Israel to respect international law and, in particular, the requirement of proportionality and the duty to take all feasible precautions to avoid civilian casualties.
United Kingdom of Great Britain and Northern Ireland
In 2006, in a reply to a question in the House of Lords concerning “[w]hat representations [the UK Government] have made to the Government of Israel regarding their military response to the kidnapping of one Israel Defense Force soldier”, the UK Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, stated: “Any military steps taken should avoid civilian casualties, abide by international law and observe the principle of proportionality.”
United Kingdom of Great Britain and Northern Ireland
In 2006, in a written ministerial statement, the UK Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, stated:
While Israel has the right to defend itself and to secure the release of Corporal Shalit, its actions should be proportionate and in accordance with international law, as we, the G8 and the EU have made clear. We call on Israel to exercise restraint and to do everything possible to avoid civilian casualties.
United Kingdom of Great Britain and Northern Ireland
In 2006, during a debate in the House of Lords, a statement by the UK Prime Minister was read by the Lord President of the Council. With regard to military action taken by Israel in Lebanon, the following was stated:
In Lebanon, more than 230 people have been killed, the vast majority of them civilians. Houses, roads, essential infrastructure, factories and Lebanese Army facilities have been damaged. Once again, we have made it clear to Israel that it is essential to take account of the humanitarian situation, and ensure that military action is proportionate.
United Kingdom of Great Britain and Northern Ireland
In 2007, in its response to the Foreign Affairs Committee’s report on the Middle East, in which the question was raised whether the Government considered the use of cluster munitions by Israel in Lebanon proportionate, the UK Government stated:
As the UK made clear during the conflict last year, we were deeply concerned by the deaths of civilians and damage to infrastructure in both Lebanon and Israel. We consistently urged Israel to act proportionately, to conform to international law, and to do more to avoid civilian death and suffering.
The Government recognises the UN statistics that the Committee highlights in its report. It is concerned by the estimate that one million cluster bombs remained unexploded; that 26% of Lebanon’s cultivable land had been contaminated; and that 90% of the cluster bombs dropped on Lebanon occurred in the last 72 hours of the conflict. The Government is concerned by the findings of both the UN Commission of Inquiry’s investigation into the conflict in Lebanon and Human Rights Watch’s September 2007 report, both of which conclude that Israel’s use of force was disproportionate and failed to adequately distinguish between military and civilian targets. However, it should be noted that the UN Commission of Inquiry itself recognises in its Report (para. 20) that the Report cannot constitute a full and final accounting of all alleged violations.
United States of America
In 1972, the General Counsel of the US Department of Defense stated:
I would like to reiterate that it is recognized by all states that they may not lawfully use their weapons against civilian population[s] or civilians as such, but there is no rule of international law that restrains them from using weapons against enemy armed forces or military targets. The correct rule of international law which has applied in the past and continued to apply to the conduct of our military operations in Southeast Asia is that “the loss of life and damage to property must not be out of proportion to the military advantage to be gained”. A review of the operating authorities and rules of engagements for all of our forces in Southeast Asia, in air as well as ground and sea operations, by my office reveals that not only are such operations in conformity with this basic rule, but that in addition, extensive constraints are imposed to avoid if at all possible the infliction of casualties on noncombatants and the destruction of property other than that related to the military operations in carrying out military objectives.
United States of America
In 1974, at the Lucerne Conference of Government Experts on Weapons which may Cause Unnecessary Suffering or have Indiscriminate Effects, the head of the US delegation stated:
The law of war also prohibits attacks which, though directed at lawful military targets, entail a high risk of incidental civilian casualties or damage to civilian objects which is disproportionate to the military advantage sought to be secured by the attack.
United States of America
In 1987, the Deputy Legal Adviser of the US Department of State affirmed: “We support the principle … that attacks not be carried out that would clearly result in collateral civilian casualties disproportionate to the expected military advantage.”
United States of America
In 1991, in reaction to an ICRC memorandum on the applicability of IHL in the Gulf region, the US Department of the Army stated:
The concept of “incidental loss of life excessive in relation to the military advantage anticipated” generally is measured against an overall campaign. While it is difficult to weigh the possibility of collateral civilian casualties on a target-by-target basis, minimization of collateral civilian casualties is a continuing responsibility at all levels of the targeting process. Combat is a give-and-take between attacker and defender, and collateral civilian casualties are likely to occur notwithstanding the best efforts of either party. What is prohibited is wanton disregard for possible collateral civilian casualties.
United States of America
In 1992, in its final report to Congress on the conduct of the Gulf War, the US Department of Defense stated:
While the prohibition contained in Article 23(g) [of the Hague Regulations] generally refers to intentional destruction or injury, it also precludes collateral damage of civilian objects or injury to noncombatant civilians that is clearly disproportionate to the military advantage gained in the attack of military objectives, as discussed below. As previously indicated, Hague IV was found to be customary international law in the course of war crimes trials following World War II, and continues to be so regarded.
An uncodified but similar provision is the principle of proportionality. It prohibits military action in which the negative effects (such as collateral civilian casualties) clearly outweigh the military gain. This balancing may be done on a target-by-target basis, as frequently was the case during Operation Desert Storm, but also may be weighed in overall terms against campaign objectives. CENTCOM [Central Command] conducted its campaign with a focus on minimizing collateral civilian casualties and damage to civilian objects. Some targets were specifically avoided because the value of destruction of each target was outweighed by the potential risk to nearby civilians or, as in the case of certain archaeological and religious sites, to civilian objects.
United States of America
In 1992, a legal review by the US Department of the Air Force of the legality of extended range anti-armour munition stated that, while legal as such, this munition “should, however, only be used in concentrations of civilians if the military necessity for such use is great, and the expected collateral civilian casualties would not be excessive in relation to the expected military advantage”.
United States of America
In 1993, in its report to Congress on the protection of natural and cultural resources during times of war, the US Department of Defense stated that cultural property, civilian objects and natural resources are protected from:
collateral damage that is clearly disproportionate to the military advantage to be gained in the attack of military objectives. The law of war acknowledges the unfortunate inevitability of collateral damage when military objectives and civilian objects (including cultural property and natural resources) are commingled.
United States of America
In its written statement submitted to the ICJ in the Nuclear Weapons (WHO) case in 1994, the United States stated:
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. Whether an attack with nuclear weapons would be disproportionate depends entirely on the circumstances, including the importance of destroying the objective, the character, size and likely effects of the device, and the magnitude of the risk to civilians.
United States of America
The Report on US Practice states: “United States practice recognizes the principle of proportionality as part of the customary law of non-nuclear war.”
United States of America
In 2005, the US Department of Justice submitted a Statement of Interest of the United States to the US District Court for the Eastern District of New York prior to that Court’s consideration of Agent Orange Product Liability Litigation (The Vietnam Association for Victims of Agent Orange/Dioxin, et al. v. Dow Chemical Company, et al)
. That statement reiterated the US position that no rule of international law barred the use of chemical herbicides in war generally nor barred the destruction of crops intended for use by enemy forces. With regard to the principle of proportionality in attack, it stated:
There are simply no established international law standards of the specificity required by Sosa [Sosa v. Alvarez-Machain, US Supreme Court, 2004] for establishing a federal common law cause of action for unnecessary or disproportionate use of military force.
Indeed, the very nature of the principles defy specificity, for they require the balancing of competing considerations and are inherently imprecise. That is, the rules do not proscribe any particular conduct that is readily identifiable. Rather, they require consideration by combatant commanders of a variety of factors – unique to the context of any particular military action – that affect decisions on what means may be available to achieve the military objective and whether the harms that particular military actions might cause would be disproportionate to the advantages attained. In light of the balancing nature of the principles, the very same act that might be deemed both necessary and proportionate in one circumstance, might be deemed unnecessary or disproportionate in another. It is one thing, therefore, to recognize that these principles generally exist in customary international law. It is “harder,” if not impossible, to “say which policies cross [the] line with the certainty afforded by Blackstone’s three common law offenses” 124 S. Ct. at 2769.
A recent report by a Committee established to review the NATO bombing campaign in Yugoslavia provides a good illustration of the imprecise nature of the rule of proportionality:
The main problem with the principle of proportionality is not whether or not it exists but what it means and how it is to be applied. It is relatively simple to state that there must be an acceptable relation between the legitimate destructive effect and undesirable collateral effects. For example, bombing a refugee camp is obviously prohibited if its only military significance is that people in the camp are knitting socks for soldiers. Conversely, an air strike on an ammunition dump should not be prohibited merely because a farmer is plowing a field in the area. Unfortunately, most applications of the principle of proportionality are not quite so clear cut. It is much easier to formulate the principle of proportionality in general terms than it is to apply it to a particular set of circumstances because the comparison is often between unlike quantities and values. One cannot easily assess the value of innocent human lives as opposed to capturing a particular military objective.
Because any consensus regarding the necessity and proportionality principles necessarily exists solely “at a high level of generality,” id at 2768 n.27, and because the principles are not “defined with.. .specificity,” id at 2761, and clearly have “less definite content” than the 18th Century offenses discussed in Sosa. id. at 2765, the Court should not recognize a federal common law cause of action for alleged violations of the necessity and proportionality principles. See also Flores. 343 F.3d at 160–61.
Yugoslavia, Federal Republic of
According to the Report on the Practice of the Federal Republic of Yugoslavia, no doubt can be raised about the existence of an opinio juris in favour of the principle of proportionality. The report alleges that serious violations of the principle of proportionality did occur during the conflict in Croatia, for example, during hostilities in Vukovar and Dubrovnik where artillery was massively used, and notes that the press regularly covered this issue in 1991.
Zimbabwe
In its oral pleadings before the ICJ in the Nuclear Weapons case in 1995, Zimbabwe fully shared the analysis of other States that “the threat or use of nuclear weapons violates the principles of humanitarian law prohibiting the use of weapons or methods of warfare that … are disproportionate”.
Zimbabwe
The Report on the Practice of Zimbabwe considers that the principle of proportionality is a norm of customary international law but states that its application is difficult to gauge under war conditions.
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UN Security Council
In a resolution on Cyprus adopted in 1996, the UN Security Council:
Deplores the violent incidents of 11 and 14 August, 8 September and 15 October 1996 [in Cyprus], which resulted in the tragic deaths of three Greek Cypriot civilians and one member of the Turkish Cypriot Security Forces, as well as injuries to civilians and UNFICYP personnel, in particular the unnecessary and disproportionate use of force by the Turkish/Turkish Cypriot side.
UN Security Council
In a resolution adopted in 1998, the UN Security Council condemned “the use of excessive force by Serbian police forces against civilians and peaceful demonstrators in Kosovo”.
Later that year, in another resolution in the same context, the Security Council expressed its grave concern at “the excessive and indiscriminate use of force by Serbian security forces and the Yugoslav Army which have resulted in numerous civilian casualties”.
UN Security Council
In a resolution adopted in 2000 on events in Jerusalem and other areas throughout the territories occupied by Israel, the UN Security Council condemned “acts of violence, especially the excessive use of force against Palestinians, resulting in injury and loss of human life”.
UN General Assembly
In a resolution adopted in 2004 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:
Gravely concerned about … the excessive use of force by the Israeli occupying forces against Palestinian civilians, resulting in thousands of deaths and injuries,
…
4. … especially condemns the excessive and indiscriminate use of force against the civilian population, including extrajudicial executions, which has resulted in more than 3,400 Palestinian deaths, including those of more than 750 children, and tens of thousands of injuries.
UN General Assembly
In a resolution adopted in 2004 on Israeli practices affecting the human rights of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem, the UN General Assembly:
Concerned about the continuing systematic violation of the human rights of the Palestinian people by Israel, the occupying Power, including that arising from the excessive use of force, …
…
3. Condemns … the excessive use of force by the Israeli occupying forces against Palestinian civilians, resulting in extensive loss of life, vast numbers of injuries and massive destruction of homes, properties, agricultural lands and vital infrastructure.
UN General Assembly
In a resolution adopted in 2005 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:
Gravely concerned about the continuing detrimental impact of the events that have taken place since 28 September 2000, including the excessive use of force by the Israeli occupying forces against Palestinian civilians, resulting in thousands of deaths and injuries, and the widespread destruction of property,
…
4. Expresses grave concern about the critical situation in the Occupied Palestinian Territory, including East Jerusalem, since 28 September 2000, as a result of unlawful Israeli practices and measures, and especially condemns … the excessive and indiscriminate use of force against the civilian population, including extrajudicial executions.
UN General Assembly
In a resolution adopted in 2005 on Israeli practices affecting the human rights of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem, the UN General Assembly:
Expressing grave concern about the continuing systematic violation of the human rights of the Palestinian people by Israel, the occupying Power, including that arising from the excessive use of force, …
…
3. Condemns … the excessive use of force by the Israeli occupying forces against Palestinian civilians, resulting in extensive loss of life, vast numbers of injuries and massive destruction of homes, properties, agricultural lands and vital infrastructure.
UN General Assembly
In a resolution adopted in 2006 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:
Gravely concerned about the continuing detrimental impact of the events that have taken place since 28 September 2000, including the excessive use of force by the Israeli occupying forces against Palestinian civilians, resulting in thousands of deaths and injuries, the widespread destruction of property and vital infrastructure and the internal displacement of civilians,
…
4. Expresses grave concern about the critical situation in the Occupied Palestinian Territory, including East Jerusalem, since 28 September 2000, as a result of unlawful Israeli practices and measures, and especially condemns … the excessive and indiscriminate use of force against the civilian population, including extrajudicial executions.
UN General Assembly
In a resolution adopted in 2006 on Israeli practices affecting the human rights of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem, the UN General Assembly:
Expressing grave concern about the continuing systematic violation of the human rights of the Palestinian people by Israel, the occupying Power, including that arising from the excessive use of force, …
Gravely concerned about the military actions that have been carried out since 28 September 2000 and that have led to thousands of deaths among Palestinian civilians, including hundreds of children, and tens of thousands of injuries,
…
3. Condemns … the excessive use of force by the Israeli occupying forces against Palestinian civilians, resulting in extensive loss of life and vast numbers of injuries, including among children, massive destruction of homes, properties, agricultural lands and vital infrastructure, and the internal displacement of civilians.
UN General Assembly
In a resolution adopted in 2006 on extrajudicial, summary or arbitrary executions, the UN General Assembly urged all States
(a) To take all necessary and possible measures, in conformity with international human rights law and international humanitarian law, to prevent loss of life, in particular that of children, during public demonstrations, internal and communal violence, civil unrest, public emergencies or armed conflicts, and to ensure that the police, law enforcement agents, armed forces and other agents acting on behalf of or with the consent or acquiescence of the State act with restraint and in conformity with international humanitarian law and international human rights law, including the principles of proportionality and necessity, and in this regard to ensure that police and law enforcement officials are guided by the Code of Conduct for Law Enforcement Officials and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.
UN General Assembly
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:
Gravely concerned about the continuing detrimental impact of the events that have taken place since 28 September 2000, including the excessive use of force by the Israeli occupying forces against Palestinian civilians, resulting in thousands of deaths and injuries, the widespread destruction of property and vital infrastructure and the internal displacement of civilians,
…
4. Expresses grave concern about the critical situation in the Occupied Palestinian Territory, including East Jerusalem, since 28 September 2000, as a result of unlawful Israeli practices and measures, and especially condemns … the excessive and indiscriminate use of force against the civilian population, including extrajudicial executions.
UN General Assembly
In a resolution adopted in 2007 on Israeli practices affecting the human rights of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem, the UN General Assembly:
Expressing grave concern about the continuing systematic violation of the human rights of the Palestinian people by Israel, the occupying Power, including that arising from the excessive use of force, …
Gravely concerned about the military actions that have been carried out since 28 September 2000 and that have led to thousands of deaths among Palestinian civilians, including hundreds of children, and tens of thousands of injuries,
…
3. Condemns … the excessive use of force by the Israeli occupying forces against Palestinian civilians, which have caused extensive loss of life and vast numbers of injuries, including among children, massive destruction of homes, properties, agricultural lands and vital infrastructure, and internal displacement of civilians.
UN General Assembly
In a resolution adopted in 2007 on the rights of the child, the UN General Assembly:
Recalls, in accordance with international humanitarian law, that indiscriminate attacks against civilians, including children, are prohibited and that they shall not be the object of attack, including by way of reprisal or excessive use of force, condemns these practices, and demands that all parties immediately put an end to them.
UN Commission on Human Rights
In 1995, following consultations, the Chairman of the UN Commission on Human Rights issued a statement indicating the consensus of the Commission concerning the situation of human rights in Chechnya:
Expressing its deep concern over the disproportionate use of force by the Russian armed forces, [the Commission on Human Rights] deplores the grave violations of human rights, before and after the beginning of the present crisis, as well as of international humanitarian law and the continuation of these violations.
UN Commission on Human Rights
In a resolution adopted in 2000, the UN Commission on Human Rights expressed its grave concern about “reports indicating disproportionate and indiscriminate use of Russian military force” in Chechnya and underlined “the need to respect the principle of proportionality”.
UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992)
In 1994, in its final report on grave breaches of the Geneva Conventions and other violations of IHL committed in the former Yugoslavia, the UN Commission of Experts Established pursuant to Security Council Resolution 780 (1992), stated:
There have been incidents in the past where substantial civilian casualties have been caused and substantial military advantage gained by a particular military action. In those cases, one might attempt to quantify both military advantage and civilian losses and apply the somewhat subjective rule of proportionality. As a general statement, however, the rule of proportionality is not relevant to the sniping activities of the Bosnia Serb Army forces, and it is of questionable relevance to many of the artillery bombardments. The Bosnian Serb Army forces are deliberately targeting the civilian population of Sarajevo, either as a measure of retaliation or to weaken their political resolve. Attacking the civilian population is a war crime.
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Council of Europe Parliamentary Assembly
In a resolution adopted in 1995 concerning the Russian Federation’s request for membership in the light of the situation in Chechnya, the Council of Europe Parliamentary Assembly unreservedly condemned “the indiscriminate and disproportionate use of force by the Russian military, in particular against the civilian population”.
European Community Ministers of Foreign Affairs
In a declaration adopted in 1991, the EC Ministers of Foreign Affairs expressed alarm at “reports that the Yugoslav National Army (JNA), having resorted to a disproportionate and indiscriminate use of force, has shown itself to be no longer a neutral and disciplined institution”.
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International Court of Justice
In its advisory opinion in the Nuclear Weapons case in 1996, the ICJ held:
States must take environmental considerations into account when assessing what is necessary and proportionate in the pursuit of legitimate military objectives. Respect for the environment is one of the elements that go to assessing whether an action is in conformity with the principles of necessity and proportionality.
The Court did not elaborate further on the general principle of proportionality in the conduct of hostilities but rather focused on the application of this principle in the context of the use of force in the framework of the right of self-defence as defined in Article 51 of the UN Charter.
International Court of Justice
In her dissenting opinion in the Nuclear Weapons case before the ICJ in 1996, Judge Higgins stated: “Even a legitimate military target may not be attacked if the collateral civilian casualties would be disproportionate to the specific military gain from the attack.”
International Criminal Tribunal for the former Yugoslavia
In its review of the indictment in the Martić case in 1996, the ICTY Trial Chamber referred, among the relevant norms of customary law, to Article 51(5)(b) of the 1977 Additional Protocol I and held that, even when directed against a legitimate military target, “attacks must not cause damage and harm to the civilian population disproportionate in relation to the concrete and direct military advantage anticipated”.
In its judgement in 2007, the Trial Chamber stated:
The prohibition against targeting the civilian population does not exclude the possibility of legitimate civilian casualties incidental to an attack aimed at military targets. However, such casualties must not be disproportionate to the concrete and direct military advantage anticipated before the attack. In particular, indiscriminate attacks, that is attacks which affect civilians or civilian objects and military objects without distinction, may also be qualified as direct attacks on civilians. In this regard, a direct attack against civilians can be inferred from the indiscriminate character of the weapon used.
International Criminal Tribunal for the former Yugoslavia
In its judgement in the Kupreškić case in 2000, the ICTY Trial Chamber stated that the principle of proportionality required that “any incidental (and unintentional) damage to civilians must not be out of proportion to the direct military advantage gained by the military attack”.
International Criminal Tribunal for the former Yugoslavia
In its final report to the ICTY Prosecutor in 2000, the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia stated: “Civilians present within or near military objectives must … be taken into account in the proportionality equation.”
The Committee suggested:
The determination of relative values [of military advantage and injury to non-combatants] must be that of the “reasonable military commander”. Although there will be room for argument in close cases, there will be many cases where reasonable military commanders will agree that the injury to non-combatants or the damage to civilian objects was clearly disproportionate to the military advantage gained.
The Committee further stated:
Attacks which cause disproportionate civilian casualties or civilian property damage may constitute the actus reus for the offence of unlawful attack [as a violation of the laws and customs of war]. The mens rea for the offence is intention or recklessness, not simple negligence.
International Criminal Tribunal for the former Yugoslavia
In its judgement in the Galić case in 2003, the ICTY Trial Chamber stated:
58. One type of indiscriminate attack violates the principle of proportionality. The practical application of the principle of distinction requires that those who plan or launch an attack take all feasible precautions to verify that the objectives attacked are neither civilians nor civilian objects, so as to spare civilians as much as possible. Once the military character of a target has been ascertained, commanders must consider whether striking this target is “expected to cause incidental loss of life, injury to civilians, damage to civilian objectives or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.” If such casualties are expected to result, the attack should not be pursued. The basic obligation to spare civilians and civilian objects as much as possible must guide the attacking party when considering the proportionality of an attack. In determining whether an attack was proportionate it is necessary to examine whether a reasonably well-informed person in the circumstances of the actual perpetrator, making reasonable use of the information available to him or her, could have expected excessive civilian casualties to result from the attack.
59. To establish the mens rea of a disproportionate attack the Prosecution must prove … that the attack was launched wilfully and in knowledge of circumstances giving rise to the expectation of excessive civilian casualties.
60. The Trial Chamber considers that certain apparently disproportionate attacks may give rise to the inference that civilians were actually the object of attack. This is to be determined on a case-by-case basis in light of the available evidence.
In its judgement in 2006, the ICTY Appeals Chamber affirmed:
190. One of the fundamental principles of international humanitarian law is that civilians and civilian objects shall be spared as much as possible from the effects of hostilities. This principle stems from the principles of distinction and the principle of protection of the civilian population, “the cardinal principles contained in the text constituting the fabric of humanitarian law”, constituting “intransgressible principles of international customary law [ICJ, Nuclear Weapons Case, § 78; Kordić and Čerkez Appeal Judgement, § 54]. According to the principle of distinction, warring parties must at all times distinguish between the civilian population and combatants, between civilian and military objectives, and accordingly direct attacks only against military objectives [Kordić and Čerkez Appeal Judgement, § 54]. These principles establish an absolute prohibition on the targeting of civilians in customary international law [Blaškić Appeal Judgement, § 109] but do not exclude the possibility of legitimate civilian casualties incidental to the conduct of military operations. However, those casualties must not be disproportionate to the concrete and direct military advantage anticipated before the attack (the principle of proportionality).
191. … [T]he Trial Chamber considered that Article 51(2) of Additional Protocol I “states in a clear language that civilians and the civilian population as such should not be the object of attack”, that this principle “does not mention any exceptions”, and in particular that it “does not contemplate derogating from this rule by invoking military necessity.” It then held that Article 51(2) “explicitly confirms the customary rule that civilians must enjoy general protection against the danger arising from hostilities” and “stems from a fundamental principle of international humanitarian law, the principle of distinction, which obliges warring parties to distinguish at all times between the civilian population and combatants and between civilian objects and military objectives and accordingly to direct their operations only against military objectives”. The Trial Chamber also considered that:
[o]nce the military character of a target has been ascertained, commanders must consider whether striking this target is “expected to cause incidental loss of life, injury to civilians, damage to civilian objectives or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”
International Criminal Tribunal for the former Yugoslavia
In its judgement in the Kordić and Čerkez case in 2004, the ICTY Appeals Chamber stated:
It is, however, accepted that attacks aimed at military objectives, including objects and combatants, may cause “collateral civilian damage”. International customary law recognises that in the conduct of military operations during armed conflicts a distinction must be drawn at all times between persons actively taking part in the hostilities and civilian population. … Nevertheless, international customary law recognises that this does not imply that collateral damage is unlawful per se.
International Criminal Tribunal for the former Yugoslavia
In the Dragomir Milošević case before the ICTY in 2006, the accused was charged, inter alia, with unlawful attacks on civilians as a violation of the laws or customs of war, punishable under Article 51 of Additional Protocol I and Article 13 of Additional Protocol II and under Articles 3, 7(1) and 7(3) of the 1993 ICTY Statute. The Amended Indictment of 18 December 2006 described the campaign conducted by the accused as “disproportionate to the concrete and direct military advantage anticipated”:
From on or about 10 August 1994 to on or about 21 November 1995, Dragomir Milošević, as Commander of Bosnian Serb forces comprising or attached to the Sarajevo Romanija Corps and/or forces affiliated with the VRS, conducted a campaign of artillery and mortar and modified air bomb shelling onto civilian areas of Sarajevo and upon its civilian population. The shelling attacks on Sarajevan civilians were deliberate, indiscriminate, and/or excessive and disproportionate to the concrete and direct military advantage anticipated. In particular … given the inherent inability of modified airbombs to engage specific targets, their deployment could only have been intended to cause civilian casualties. The campaign of shelling resulted in over a thousand civilians being killed or injured.
In its judgement in 2007, the Trial Chamber noted the obligation of parties to an armed conflict “to remove civilians … from the vicinity of military objectives” and emphasized that “the failure of a party to abide by this obligation does not relieve the attacking side of its duty to abide by the principles of distinction and proportionality when launching an attack”.
Human Rights Committee
In its concluding observations on the second periodic report of Israel in 2003, the Human Rights Committee stated:
The Committee notes its concern at what the State party calls “targeted killings” of those identified by the State party as suspected terrorists in the Occupied Territories. This practice would appear to be used at least in part as a deterrent or punishment, thus raising issues under article 6 [of the 1966 International Covenant on Civil and Political Rights]. While noting the delegation’s observations about respect for the principle of proportionality in any response to terrorist activities against civilians and its affirmation that only persons taking direct part in hostilities have been targeted, the Committee remains concerned about the nature and extent of the responses by the Israeli Defence Force (IDF) to Palestinian terrorist attacks.
The State party should not use “targeted killings” as a deterrent or punishment. The State party should ensure that the utmost consideration is given to the principle of proportionality in all its responses to terrorist threats and activities. State policy in this respect should be spelled out clearly in guidelines to regional military commanders, and complaints about disproportionate use of force should be investigated promptly by an independent body. Before resorting to the use of deadly force, all measures to arrest a person suspected of being in the process of committing acts of terror must be exhausted. [emphasis in original]
Inter-American Commission on Human Rights
In a report on Colombia in 1999, the Inter-American Commission on Human Rights noted that the legitimacy of a military target did not provide unlimited license to attack it. According to the report, the rule of proportionality prohibited “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”. The Commission added that the principle of proportionality required that foreseeable injury to civilians and damage to civilian objects should not be disproportionate or excessive to the anticipated concrete and direct military advantage.
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ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that:
The rule of proportionality shall be respected. An action is proportionate when it does not cause incidental civilian casualties and damage which is excessive in relation to the value of the expected result of the whole military operation. The rule of proportionality cannot be used to justify unlimited destruction or attacks on civilian persons and objects as such.
ICRC delegates teach, furthermore, that an “indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive civilian casualties and damage” constitutes a grave breach of the law of war.
ICRC
In an appeal launched in 1973, the ICRC urged all the belligerents in the conflict in the Middle East (Egypt, Iraq, Israel and the Syrian Arab Republic) to observe forthwith, in particular, the provisions of,
inter alia, Article 46(3)(b) of the draft Additional Protocol I which stated: “It is 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”. All governments concerned replied favourably.
ICRC
At the CDDH, the ICRC stated that Article 51(5)(b) the 1977 Additional Protocol I did not contain an exception to the prohibition of attacks against civilians, “but, as the word ‘incidental’ showed, was intended to cover a different situation”.
The ICRC further stated:
Since the First World War there had been many vain attempts at codifying the immunity of the civilian population. The 1922/23 project would have required combatants to abstain from bombing when it might affect the civilian population, but a good text was useless if it went unsigned, unratified and unimplemented. The Red Cross was conscious of the fact that the rule of proportionality contained a subjective element, and was thus liable to abuse. The aim was, however, to avoid or in any case restrict the incidental effects of attacks directed against military objectives.
ICRC
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”.
ICRC
In a communication to the press in 1993, the ICRC enjoined the parties to the conflict in Somalia “not to launch military operations that may cause incidental civilian casualties or damage to civilian objects disproportionate to the direct military advantage anticipated”.
ICRC
In 1994, in a Memorandum on Respect for International Humanitarian Law in Angola, the ICRC stated:
All attacks … which may be expected to cause incidental loss of civilian life, injury to civilians or damage to civilian objects which would be excessive in relation to the concrete and direct military advantage anticipated are prohibited.
ICRC
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.
ICRC
In a working paper on war crimes submitted in 1997 to the Preparatory Committee for the Establishment of an International Criminal Court, the ICRC proposed that the following war crime be subject to the jurisdiction of the Court:
launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects, which is excessive in relation to the concrete and direct military advantage anticipated.
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Oppenheim
According to Oppenheim, civilians “do not enjoy absolute immunity”. He adds:
Their presence will not render military objectives immune from attack for the mere reason that it is impossible to bombard them without causing injury to the non-combatants. But … it is of the essence that a just balance be maintained between the military advantage and the injury to non-combatants. The restrictions imposed by customary International Law upon the sinking of merchant-vessels are one of the many examples of the principle that noxious, though otherwise lawful, action must be desisted from when its object cannot be obtained without causing disproportionate injury to legally recognised rights.
Bothe, Partsch and Solf
In their commentary on the 1977 Additional Protocols, Bothe, Partsch and Solf state:
The same argument [that the prohibition of indiscriminate is inferentially included in Article 13 of the 1977 Additional Protocol II within the prohibition against making the civilian population the object of attack and that the deletion of this prohibition may be said to be part of the simplification of the text] cannot be made with respect to attacks which may be expected to cause disproportionate civilian losses; Committee III [of the CDDH] had rejected that provision before the simplification process had been manifested. Nevertheless, … the principle of proportionality is inherent in the principle of humanity which was explicitly made applicable to Protocol II under the fourth clause of the Preamble. Thus, the principle of proportionality cannot be ignored in applying Protocol II.
Americas Watch
In 1986, in a report on the use of landmines in the conflicts in El Salvador and Nicaragua, Americas Watch stated:
The principle of humanity, which both complements and inherently limits the doctrine of military necessity, is defined in the U.S. Air Force’s Pamphlet on the Conduct of Armed Conflict and Air Operations as resulting “… in a specific prohibition against unnecessary suffering and a requirement of proportionality …” … These customary principles of the laws of war constitute legal obligation[s] for the warring parties to the internal armed conflicts in El Salvador and Nicaragua.
Africa Watch
In 1989, in a report on violations of the laws of war in Angola, Africa Watch stated: “Another fundamental principle of customary humanitarian law is the principle of humanity, which both complements and inherently limits the doctrine of military necessity.” The report cited the US Air Force Pamphlet with approval where the latter provides that “this principle of humanity results in a specific prohibition of unnecessary suffering and a requirement of proportionality”.
Turku Declaration of Minimum Humanitarian Standards
The Turku Declaration of Minimum Humanitarian Standards, adopted by an expert meeting convened by the Institute for Human Rights of Åbo Akademi University in Turku/Åbo, Finland in 1990 states: “Whenever the use of force is unavoidable, it shall be in proportion to the seriousness of the offence or the objective to be achieved.”
Human Rights Watch
In 1994, in the context of the conflict in Yemen, Human Rights Watch urged the Government of Yemen
to play closest attention to the requirements of the rules of war, in particular … to the rule of proportionality. Under that rule, even attacks on legitimate military targets such as enemy forces or tanks may be prohibited if such attacks would cause loss of civilian life, injury to civilians, or damage to civilian objects that would be excessive in relation to the concrete and direct military advantage anticipated … We note that the rules of war apply equally to government and rebel troops.
Amnesty International
In a report on the NATO bombings in the Federal Republic of Yugoslavia issued in 2000, Amnesty International stated:
In other words, NATO deliberately attacked a civilian object [the Serbian state radio and television headquarters], killing 16 civilians, for the purpose of disrupting Serbian television broadcasts in the middle of the night for approximately three hours. It is hard to see how this can be consistent with the rule of proportionality.
ICC Statute
Article 8(2)(b)(iv) of the 1998 ICC Statute provides that incidental loss of civilian life or injury to civilians must not be clearly excessive “in relation to the concrete and direct overall military advantage anticipated”. (emphasis added)
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ICC Elements of Crimes
An explanatory footnote in the 2000 ICC Elements of Crimes states:
The expression “concrete and direct overall military advantage” refers to a military advantage that is foreseeable by the perpetrator at the relevant time. Such advantage may or may not be temporally or geographically related to the object of the attack. The fact that this crime admits the possibility of lawful incidental injury and collateral damage does not in any way justify any violation of the law applicable in armed conflict. It does not address justifications for war or other rules related to
jus ad bellum. It reflects the proportionality requirement inherent in determining the legality of any military activity undertaken in the context of an armed conflict.
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Australia
Australia’s Defence Force Manual (1994) refers to the declaration made by Australia upon ratification of the 1977 Additional Protocol I to the effect that references to military advantage in Articles 51(5)(b) and 57 of the Protocol mean “the advantage anticipated from the attack as a whole and not only from isolated or particular parts of the attack” and that “military advantage involves a number of considerations, including the security of the attacking forces”.
Australia
Australia’s LOAC Manual (2006) states:
5.10 … In relation to G. P. I [1977 Additional Protocol I], Australia has made a declaration to the effect that the Australian Government’s understanding is that references to military advantage in Articles 51(5)(b) and 57 mean:
the advantage anticipated from the attack as a whole and not only from isolated or particular parts of the attack.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Belgium
Belgium’s Law of War Manual (1983) states that, when deciding whether or not to launch an attack, “the commander must consider the advantage of the attack as a whole (and not the advantages of specific or separate parts of the attack)”.
Canada
Canada’s LOAC Manual (1999) states:
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. A concrete and direct military advantage exists if the commander has an honest and reasonable expectation that the attack will make a relevant contribution to the success of the overall operation. Military advantage may include a variety of considerations including the security of the attacking forces.
Canada
Canada’s LOAC Manual (2001) states in its chapter on targeting:
1. 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.
2. A concrete and direct military advantage exists if the commander has an honest and reasonable expectation that the attack will make a relevant contribution to the success of the overall operation. Military advantage may include a variety of considerations including the security of the attacking forces.
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book IV (Instruction of heads of division and company commanders):
The military advantage at the moment of attack is the advantage anticipated from the operation or from the military campaign of which the attack is a part, considered as a whole, and not only from isolated or particular parts of that campaign or that operation.
There is a concrete and direct military advantage if the commander reasonably and honestly anticipates that the attack contributes to the success of the operation as a whole.
Germany
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.”
Israel
Israel’s Manual on the Rules of Warfare (2006) states:
Upon attacking a military target that is located at the heart of [a] civilian district, for example, a group of enemy soldiers who are holed up in the heart of a city and surrounded by civilians, they may be attacked, but only if the expected military benefit to one’s side from the offensive exceeds the expected damage that might be caused to civilians. There is no set formula according to which it is possible to weigh the civilian damage against the expected military benefit from the offensive; but it is a question of degree. An offensive would not be considered legitimate if it presented a significant risk to many civilian lives in return for gaining a subordinate military objective.
The manual further states:
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.
Netherlands
The Military Manual (2005) of the Netherlands states: “The relation between collateral damage and the degree of force used on the one hand, and the expected military advantage on the other hand, must not be disproportionate.”
New Zealand
New Zealand’s Military Manual (1992) states:
In deciding whether the principle of proportionality is being respected, the standard of measurement is the contribution to the military purpose of an attack or operation considered as a whole, as compared with other consequences of the action, such as the effect upon civilians or civilian objects.
Nigeria
According to Nigeria’s Military Manual (1994), the principle of proportionality requires that “incidental civilian casualties and damage which is excessive in relation to the value of the expected result of the whole operation” must be avoided. (emphasis added)
Spain
Spain’s LOAC Manual (1996) states: “An attack is prohibited if … the damage to the civilian population and/or to civilian objects which the attack will cause is excessive in relation to the military advantage anticipated from the attack as a whole.” (emphasis added)
Spain
Spain’s LOAC Manual (2007) states:
It is prohibited to launch an attack on a military objective when, based on information available in the planning phase, it could be expected to lead to casualties among the civilian population or cause damage to civilian property which would be excessive in relation to the military advantage anticipated from the attack considered as a whole.
The manual further states that the anticipated military advantage “should be substantial and relatively immediate. An advantage which is hardly perceptible or which would only appear in the long term should be disregarded.”
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states:
The military advantage anticipated from the attack refers to the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack. The point of this is that an attack may involve a number of co-ordinated actions, some of which might cause more incidental damage than others. In assessing whether the proportionality rule has been violated, the effect of the whole attack must be considered.
United States of America
The US Naval Handbook (1995) states that the term military advantage “refers to the advantage anticipated from the military operation of which the attack is a part, taken as a whole, and not from isolated or particular parts of that operation”.
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Israel
In its judgement in the Public Committee against Torture in Israel case in 2006, Israel’s High Court of Justice stated:
Proper Proportion between Benefit and Damage
45. The proportionality test determines that attack upon innocent civilians is not permitted if the collateral damage caused to them is not proportionate to the military advantage (in protecting combatants and civilians). In other words, attack is proportionate if the benefit stemming from the attainment of the proper military objective is proportionate to the damage caused to innocent civilians harmed by it. That is a values based test. It is based upon a balancing between conflicting values and interests (see Beit Sourik, at p. 850; HCJ 7052/03 Adalah – The Legal Center Arab Minority Rights in Israel (unpublished, paragraph 74 of my judgment, hereinafter Adalah). It is accepted in the national law of various countries. It constitutes a central normative test for examining the activity of the government in general, and of the military specifically, in Israel. In one case I stated:
“Basically, this subtest carries on its shoulders the constitutional view that the ends do not justify the means. 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 Adalah - The Legal Center for Arab Minority Rights in Israel v. The Minister of Defense (unpublished, paragraph 30 of my judgment; see also ROBERT ALEXY, A THEORY OF CONSTITUTIONAL RIGHTS 66 (2002)).
46. That aspect of proportionality is not required regarding harm to a combatant, or to a civilian taking a direct part in the hostilities at such time as the harm is caused. Indeed, a civilian taking part in hostilities is endangering his life, and he might – like a combatant – be the objective of a fatal attack. That killing is permitted. However, that proportionality is required in any case in which an innocent civilian is harmed. Thus, the requirements of proportionality stricto senso must be fulfilled in a case in which the harm to the terrorist carries with it collateral damage caused to nearby innocent civilians. The proportionality rule applies in regards to harm to those innocent civilians (see § 51(5)(b) of The First Protocol). The rule is that combatants and terrorists are not to be harmed if the damage expected to be caused to nearby innocent civilians is not proportionate to the military advantage in harming the combatants and terrorists (see HENCKAERTS & DOSWALD-BECK, at p. 49). Performing that balance is difficult. Here as well, one must proceed case by case, while narrowing the area of disagreement. Take the usual case of a combatant, or of a terrorist sniper shooting at soldiers or civilians from his porch. Shooting at him is proportionate even if as a result, an innocent civilian neighbor or passerby is harmed. That is not the case if the building is bombed from the air and scores of its residents and passersby are harmed (compare DINSTEIN, at p. 123; GROSS, at p. 621). The hard cases are those which are in the space between the extreme examples. There, a meticulous examination of every case is required; it is required that the military advantage be direct and anticipated (see §57(2)(iii) of The First Protocol). Indeed, in international law, as in internal law, the ends do not justify the means. The state’s power is not unlimited. Not all of the means are permitted. The Inter-American Court of Human Rights pointed that out, stating:
“[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. (Ser. C.), No 4, 1, para. 154 (1988)).
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Australia
Upon ratification of the 1977 Additional Protocol I, Australia stated that references to “military advantage” were intended to mean “the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of that attack” and maintained that the term “military advantage” involved a number of considerations, including the security of the attacking forces. Australia also stated that the expression “concrete and direct military advantage anticipated” meant “a bona fide expectation that the attack will make a relevant and proportional contribution to the objective of the military attack involved”.
Belgium
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 the attack considered as a whole.”
Belgium
Upon ratification of the 1977 Additional Protocol I, Belgium stated that the term “military advantage” as used in the proportionality test of Articles 51 and 57 of the Protocol was understood to refer to the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack.
Canada
At the CDDH, Canada 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 that attack”.
Canada
Upon ratification of the 1977 Additional Protocol I, Canada stated that the term “military advantage” as used in the proportionality test of Articles 51 and 57 of the Protocol was understood to refer to the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack.
Egypt
Upon signature of the 1998 ICC Statute, Egypt declared:
The term “the concrete and direct overall military advantage anticipated” used in article 8, paragraph 2 (b) (iv), must be interpreted in the light of the relevant provisions of [the 1977 Additional Protocol I]. The term must also be interpreted as referring to the advantage anticipated by the perpetrator at the time when the crime was committed. No justification may be adduced for the nature of any crime which may cause incidental damage in violation of the law applicable in armed conflicts. The overall military advantage must not be used as a basis on which to justify the ultimate goal of the war or any other strategic goals. The advantage anticipated must be proportionate to the damage inflicted.
France
Upon ratification of the 1977 Additional Protocol I, France stated that the term “military advantage” as used in the proportionality test of Articles 51 and 57 of the Protocol was understood to refer to the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack.
France
Upon ratification of the 1998 ICC Statute, France declared that “the term ‘military advantage’ in article 8, paragraph 2 (b) (iv), refers to the advantage anticipated from the attack as a whole and not from isolated or specific elements thereof”.
Germany, Federal Republic of
At the CDDH, the Federal Republic of Germany 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 that attack”.
Germany
Upon ratification of the 1977 Additional Protocol I, Germany stated that the term “military advantage” as used in the proportionality test of Articles 51 and 57 of the Protocol was understood to refer to the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack.
Israel
In 2006, Israel’s Ministry of Foreign Affairs stated:
In practice, [the principle of proportionality] requires that the IDF [Israel Defense Forces] and the commander in the field assess both the expected military gain, and the potential of collateral injury to Lebanese civilians. With regard to the expected military gain, it should be noted that the relevant advantage is not that of that specific attack but of the military operation as a whole. As the German Military Manual points out:
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.
Israel
In 2007, Israel’s Ministry of Foreign Affairs stated in a diplomatic note:
In practice, [the principle of proportionality] requires that the IDF [Israel Defense Forces] and the commander in the field assess both the expected military gain, and the potential of collateral injury to Lebanese civilians. With regard to the expected military gain, it should be noted that the relevant advantage is not that of that specific attack but of the military operation as a whole. As the German Military Manual points out:
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.
Italy
At the CDDH, Italy stated: “As to the evaluation of the military advantage expected from an attack … that expected advantage should be seen in relation to the attack as a whole, and not in relation to each action regarded separately.”
Italy
Upon ratification of the 1977 Additional Protocol I, Italy stated that the term “military advantage” as used in the proportionality test of Articles 51 and 57 of the Protocol was understood to refer to the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack.
Netherlands
At the CDDH, the Netherlands 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 phases of that attack”.
Netherlands
Upon ratification of the 1977 Additional Protocol I, Netherlands stated that the term “military advantage” as used in the proportionality test of Articles 51 and 57 of the Protocol was understood to refer to the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack.
New Zealand
Upon ratification of the 1977 Additional Protocol I, New Zealand stated that references to the “military advantage” were intended to mean “the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of that attack” and maintained that the term “military advantage” involved a number of considerations, including the security of the attacking forces. New Zealand further stated that the expression “concrete and direct military advantage anticipated” meant “a bona fide expectation that the attack will make a relevant and proportional contribution to the objective of the military attack involved”.
Spain
Upon ratification of the 1977 Additional Protocol I, Spain stated that the term “military advantage” as used in the proportionality test of Articles 51 and 57 of the Protocol was understood to refer to the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack.
United Kingdom of Great Britain and Northern Ireland
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”.
United Kingdom of Great Britain and Northern Ireland
Upon ratification of the 1977 Additional Protocol I, the United Kingdom stated that the term “military advantage” as used in the proportionality test of Articles 51 and 57 of the Protocol was understood to refer to the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack.
United States of America
At the CDDH, the United States 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”.
United States of America
In 1991, in reaction to an ICRC memorandum on the applicability of IHL in the Gulf region, the US Department of the Army pointed out:
The concept of “incidental loss of life excessive in relation to the military advantage anticipated” generally is measured against an overall campaign. While it is difficult to weigh the possibility of collateral civilian casualties on a target-by-target basis, minimization of collateral civilian casualties is a continuing responsibility at all levels of the targeting process.
United States of America
In 1992, in its final report to Congress on the conduct of the Gulf War, the US Department of Defense stated that the balancing of collateral damage against military gain “may be done on a target-by-target basis, as frequently was the case during Operation Desert Storm, but also may be weighed in overall terms against campaign objectives”.
United States of America
The Report on US Practice states:
United States practice recognizes the principle of proportionality as part of the customary law of non-nuclear war. In applying this principle, it is necessary to consider military advantage not only on an immediate or target-by-target basis, but also in light of the military objectives of an entire campaign or operation.
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ICRC
The ICRC Commentary on the 1977 Additional Protocols states:
The expression “concrete and direct” was intended to show that the advantage concerned should be substantial and relatively close, and that advantages which are hardly perceptible and those which would only appear in the long term should be disregarded.
ICRC
In 1999, in a paper relating to the crimes listed in Article 8(2)(b) of the 1998 ICC Statute, and submitted to the Working Group on Elements of Crimes of the Preparatory Commission for the ICC, the ICRC reiterated its position that:
The addition of the words “clearly” and “overall” in the definition of collateral damage [in Article 8(2)(b)(iv) of the 1998 ICC Statute] is not reflected in any existing legal source. Therefore, the addition must be understood as not changing existing law.
ICRC
At the Rome Conference on the Establishment of an International Criminal Court in 1998, the ICRC stated:
The addition of the words “clearly” and “overall” in [the] provision relating to proportionality in attacks must be understood as not changing existing law. The word “overall” could give the impression that an extra unspecified element has been added to a formulation that was carefully negociated during the 1974–1977 Diplomatic Conference that led to [Additional Protocol I] and this formulation is generally recognized as reflecting customary law. The intention of this additional word appears to be to indicate that a particular target can have an important military advantage that can be felt over a lengthy period of time and affect military action in areas other than the vicinity of the target itself. As this meaning is included in the existing wording of the 1977 Additional Protocol I, the inclusion of the word “overall” is redundant.
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Australia
Australia’s Defence Force Manual (1994) 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”.
Australia
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”.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Belgium
Belgium’s Law of War Manual (1983) states:
It will not always be easy for a commander to evaluate this situation [whether an attack will be disproportionate] with precision. On the one hand, he must take into account the elements which are available to him, related to the military necessity necessary to justify an attack, and on the other hand, he must take into account the elements which are available to him, related to the possible loss of human life and damage to civilian objects. [emphasis in original]
Canada
Canada’s LOAC Manual (1999) notes that decisions must be based on an honest and reasonable expectation made by the responsible commanders “that the attack will make a relevant contribution to the success of the overall operation”, based on the information reasonably available to them at the relevant time, and taking fully into account the urgent and difficult circumstances under which such decisions must usually be made.
Canada
Canada’s LOAC Manual (2001) states in its chapter on targeting:
418. Standard of care
1. Commanders, planners and staff officers will not be held to a standard of perfection in reaching their decisions.
2. Commanders, planners and staff officers are required to take all “feasible” steps to verify that potential targets are legitimate targets. However, such decisions will be based on the “circumstances ruling at the time”. Consideration must be paid to the honest judgement of responsible commanders, based on the information reasonably available to them at the relevant time, taking fully into account the urgent and difficult circumstances under which such judgements are usually made.
3. The test for determining whether the required standard of care has been met is an objective one: Did the commander, planner or staff officer do what a reasonable person would have done in the circumstances?
Ecuador
Ecuador’s Naval Manual (1989) states: “The commander must determine whether incidental injuries and collateral damage would be excessive, on the basis of an objective and reasonable estimate of the available information.”
Netherlands
The Military Manual (2005) of the Netherlands states:
0511. The circumstances of the time are decisive to whether an object constitutes a military objective. The definition leaves the necessary discretion to the commanding officer. The Dutch Government, in ratifying AP I [1977 Additional Protocol I], has declared in this connection that military commanders who are responsible for carrying out attacks must base their decisions on their evaluation of the information available to them at the time …
…
0543. When not to attack
An attack should not proceed when an obvious lack of proportion appears to exist between the expected military advantage and the expected collateral damage. The decisive factor is whether a normally alert attacker, in receipt of and acting on due information, could have expected the excessive damage among the civilian population and civilian objects.
United States of America
The US Naval Handbook (1995) states: “The commander must determine whether incidental injuries and collateral damage would be excessive, on the basis of an honest and reasonable estimate of the facts available to him.”
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Algeria
Upon accession to the 1977 Additional Protocol I, Algeria stated: “To judge any decision, the circumstances, the means and the information available at the time the decision was made are determinant factors and elements in assessing the nature of the said decision.”
Australia
Upon ratification of the 1977 Additional Protocol I, Australia stated:
In relation to Articles 51 to 58 inclusive it is the understanding of Australia that military commanders and others responsible for planning, deciding upon, or executing attacks, necessarily have to reach their decisions on the basis of their assessment of the information from all sources, which is available to them at the relevant time.
Austria
Upon ratification of the 1977 Additional Protocol I, Austria stated: “Article 57, paragraph 2, of Protocol I will be applied on the understanding that, with respect to any decision taken by a military commander, the information actually available at the time of the decision is determinative.”
Austria further stated:
For the purposes of judging any decision taken by a military commander, Articles 85 and 86 of Protocol I will be applied on the understanding that military imperatives, the reasonable possibility of recognizing them and the information actually available at the time that decision was taken, are determinative.
Belgium
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.”
Belgium
Upon ratification of the 1977 Additional Protocol I, Belgium stated:
With respect to Part IV, Section I, of the Protocol, the Belgian Government wishes to emphasize that, whenever a military commander is required to take a decision affecting the protection of civilians or civilian objects or objects assimilated therewith, the only information on which that decision can possibly be taken is such relevant information as is then available and that it has been feasible for him to obtain for that purpose.
Canada
At the CDDH, Canada stated:
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.
Canada
Upon ratification of the 1977 Additional Protocol I, Canada stated:
It is the understanding of the Government of Canada that, in relation to Articles 48, 51 to 60 inclusive, 62 and 67, military commanders and others responsible for planning, deciding upon or executing attacks have to reach decisions on the basis of their assessment of the information reasonably available to them at the relevant time and that such decisions cannot be judged on the basis of information which has subsequently come to light.
Egypt
Upon ratification of the 1977 Additional Protocol I, Egypt stated: “Military commanders planning or executing attacks make their decisions on the basis of their assessment of all kinds of information available to them at the time of the military operations.”
Germany, Federal Republic of
At the CDDH, the Federal Republic of Germany stated:
Commanders and others responsible for planning, deciding upon or executing an attack necessarily have to reach decisions on the basis of their assessment of the information from all sources which is available to them at the relevant time.
Germany
Upon ratification of the 1977 Additional Protocol I, Germany stated:
It is the understanding of the Federal Republic of Germany that in the application of the provisions of Part IV, Section I, of Additional Protocol I, to military commanders and others responsible for planning, deciding upon or executing attacks, the decision taken by the person responsible has to be judged on the basis of all information available to him at the relevant time, and not on the basis of hindsight.
Ireland
Upon ratification of the 1977 Additional Protocol I, Ireland stated:
In relation to Article 51 to 58 inclusive, it is the understanding of Ireland that military commanders and others responsible for planning, deciding upon, or executing attacks necessarily have to reach decisions on the basis of their assessment of the information from all sources which is reasonably available to them at the relevant time.
Italy
Upon ratification of the 1977 Additional Protocol I, Italy declared:
In relation to Articles 51 to 58 inclusive, the Italian Government understands that military commanders and others responsible for planning, deciding upon or executing attacks necessarily have to reach decisions on the basis of their assessment of the information from all sources which is available to them at the relevant time.
Netherlands
At the CDDH, the Netherlands stated:
Commanders and others responsible for planning, deciding upon or executing attacks necessarily had to reach decisions on the basis of their assessment of the information from all sources which was available to them at the relevant time.
Netherlands
Upon ratification of the 1977 Additional Protocol I, the Netherlands declared with regard to Articles 51 to 58 inclusive:
It is the understanding of the Government of the Kingdom of the Netherlands that military commanders and others responsible for planning, deciding upon or executing attacks necessarily have to reach decisions on the basis of their assessment of the information from all sources which is available to them at the relevant time.
New Zealand
Upon ratification of the 1977 Additional Protocol I, New Zealand stated:
In relation to Article 51 to 58 inclusive, it the understanding of the Government of New Zealand that military commanders and others responsible for planning, deciding upon, or executing attacks necessarily have to reach decisions on the basis of their assessment of the information from all sources which is reasonably available to them at the relevant time.
Spain
Upon ratification of the 1977 Additional Protocol I, Spain declared with regard to Articles 51 to 58 inclusive:
It is the understanding [of the Spanish government] that the decision made by military commanders, or others with the legal capacity to plan or execute attacks which may have repercussions on civilians or civilian objects or similar objects, shall not necessarily be based on anything more than the relevant information available at the relevant time and which it has been possible to obtain to that effect.
United Kingdom of Great Britain and Northern Ireland
At the CDDH, the United Kingdom stated:
Military commanders and others responsible for planning, initiating or executing attacks necessarily had to reach decisions on the basis of their assessment of the information from all sources which was available to them at the relevant time.
United Kingdom of Great Britain and Northern Ireland
Upon signature of the 1977 Additional Protocol I, the United Kingdom stated:
Military commanders and others responsible for planning, deciding upon or executing attacks necessarily have to reach decisions on the basis of their assessment of the information from all sources which is available to them at the relevant time.
The United Kingdom repeated this statement upon ratification of the Protocol.
United States of America
At the CDDH, the United States stated:
Commanders and others responsible for planning, deciding upon or executing attacks necessarily have to reach decisions on the basis of their assessment of the information from all sources which is available to them at the relevant time.
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International Criminal Tribunal for the former Yugoslavia
In its judgement in the Galić case in 2003, the ICTY Trial Chamber stated, inter alia:
In determining whether an attack was proportionate it is necessary to examine whether a reasonably well-informed person in the circumstances of the actual perpetrator, making reasonable use of the information available to him or her, could have expected excessive civilian casualties to result from the attack.
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