INTERNATIONAL HUMANITARIAN LAW AND THE PRINCIPLE OF PROPORTIONALITY
Michelle Benington, Prasanth Kapilan, Annie Chou and Gisele Bellia
October 14th, 2020
International Humanitarian Law (IHL), known as the law of war or the law of armed conflict, is a set of rules and principles which intends to mitigate the horrors of war by preserving some humanity during armed conflict. For JD students, this can feel like a very different flavour of law compared to Torts and Contracts. In this blog, we will aim to give a broad overview of what IHL is, and then explain one of the major controversies that has underscored the development of IHL, namely, the principle of proportionality. We will conclude by providing a few resources for students who want to learn more about IHL as part of their law degree.
What is International Humanitarian Law?
The International Committee of the Red Cross, which is considered the guardian of IHL, defines it as part of the body of public international law that governs relations between States.[1] IHL has two overarching objectives.
The first is to define the rights and obligations of the parties to a conflict in the conduct of hostilities, in order to prevent the suffering of those people who are not, or no longer, directly participating in the hostilities. The protected include the sick and wounded, medical personnel, civilians and prisoners. Secondly, IHL restricts the means and methods of warfare used by those who participate in the armed conflict. Prohibited means and methods of warfare include attacks against civilians, and the use of indiscriminate weapons that cause serious injury or unnecessary suffering.[2]
Broadly speaking, IHL is a branch of public international law that seeks to moderate conduct in armed conflict and mitigate the suffering that such conflict causes. IHL strikes a balance between humanitarian considerations and military necessity in the context of an armed conflict. A unique characteristic of IHL is that it is a preventative framework which has been drafted to influence behaviour on the battlefield - the rules of IHL are drafted for soldiers, not lawyers.[3]
A major part of international humanitarian law is codified in the four Geneva Conventions of 1949, and the two Additional Protocols of 1977 relating to the protection of victims of armed conflicts. Some fundamental rules emerging from the Geneva Conventions and Additional Protocols include:
1. Parties to a conflict must at all times distinguish between the civilian population and combatants.
2. No one shall be subjected to torture, corporal punishment or cruel or degrading treatment.
3. Parties to a conflict and members of their armed forces must not employ weapons or methods of warfare of a nature which cause unnecessary losses or excessive suffering.
The Principle of Proportionality
There are various principles at the center of IHL such as the principles of military necessity and the prohibition to use means and methods of warfare that result in unjustified affliction.[4] One of the most significant principles for the protection of fundamental rights, particularly as it relates to armed conflict, is the principle of proportionality. As a basic rule of IHL, proportionality falls within a category the International Court of Justice has described as ‘intransgressible’ norms of international customary law.[5]
Firmly entrenched in both Article 51(5)(b) of Additional Protocol I, this principle prohibits an attack against a military target that is expected to result in incidental loss, injury or suffering to civilian life that would be disproportionate to the overall military advantage anticipated.[6]
While the term ‘proportionality’ is not explicitly referenced, Article 51(5)(b) codifies the proportionality principle as a balancing test using the following language:
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.
Issues with the Principle of Proportionality
Although widely accepted, the proportionality principle suffers from significant shortcomings. The principle of proportionality is famously difficult to interpret or apply, and has been subject to substantial politicisation.[7]
There has been much diversity of opinion on the adequacy of this principle, as it is unclear how commanders may interpret which attacks will cause excessive collateral damage. The language of the proportionality test requires identifying a vague notion of what is considered ‘excessive’ against considerations of the civilian, and forward-looking anticipation of a ‘concrete and direct military advantage’.[8] The relatively imprecise language of the test is therefore open to a fairly broad margin of judgment, and stresses the importance of good faith and common sense as interpretative tools. As the test is highly subjective and restricted only by the discretion of military commanders - and their potential hesitancy to pull the trigger - it is inherently an elusive and difficult concept to apply.[9] Indeed, the ambiguity, which relies heavily on an assumption of good faith, arguably works in favour of the military, but against civilians.[10]
The principle also fails to set an absolute standard for combat operations, which in turn fail to guide decision-makers. As canvassed by the International Criminal Tribunal for the former Yugoslavia, the application of proportionality is among the most difficult IHL principles to apply as it is more easily stated than applied in practice.[11] Theoretically, there must be an acceptable relation between the legitimate destructive effect and undesirable collateral effect. However, as there are no concrete guidelines or precise equation, 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.[12]
It is the absence of a common currency of evaluation that makes the task so difficult, and legally inconclusive. It is a dilemma in which the law cannot provide a clear-cut answer.[13] Prosecutors and Defendants may both argue their cases using the language of proportionality, but they will be unlikely to reach the same conclusions. The goal for objectivity, certainty, and integrity in the law related to proportionality simply does not exist.
So you want to learn more about International Humanitarian Law?
While IHL may seem daunting and provoke some residual trauma from Principles of Public Law, it is an extremely interesting aspect of international law that is not only growing, but continuously evolving and adapting to contemporary methods of warfare. While MLS currently does not offer a JD subject on IHL, Melbourne Law School has a masters subject run by our resident IHL expert, Professor Bruce ‘Ossie’ Oswald CSC, who also contributed to this year’s GLSA careers guidebook. You can check out his profile on page 150 of the guidebook, located here.
For those that want to learn more about this niche area of international law, but may not want to commit to a full subject, competing in the IHL moot, run in the second semester of each year by the MULSS, is a great (and exciting!) way to learn more about these complex controversies in IHL law.
For those that want to explore and dive even further into IHL, the Asia Pacific Centre for Military Law at MLS, public audio lectures, case studies and research papers which aim to shed light on military affairs, and contemporary IHL issues.
[1] https://ijrcenter.org/international-humanitarian-law/
[2] https://www.icrc.org/en/doc/assets/files/other/what_is_ihl.pdf
https://www.icrc.org/en/doc/resources/documents/misc/basic-rules-ihl-311288.htm
[3] https://pure.uva.nl/ws/files/39875298/Chapter_1.pdf
[4] van den Boogaard, J. C. (2019). Proportionality in international humanitarian law. (pg 24)
[5] https://brill.com/view/journals/ihls/3/1/article-p73_4.xml
[6] https://casebook.icrc.org/glossary/proportionality
[7] https://brill.com/view/journals/ihls/3/1/article-p73_4.xml
[8] https://mfa.gov.il/MFA_Graphics/MFA%20Gallery/Legal%20Advocacy/Gaza.pdf
[9] https://pure.uva.nl/ws/files/39875298/Chapter_1.pdf (page 26)
[10] https://brill.com/view/journals/ihls/3/1/article-p73_4.xml
[11] Paragraph 19 https://www.icty.org/x/file/Press/nato061300.pdf
[12] https://www.icty.org/x/file/Press/nato061300.pdf --> paragraph 48
[13] https://mfa.gov.il/MFA_Graphics/MFA%20Gallery/Legal%20Advocacy/Gaza.pdf