How can we distinguish between unnecessary destruction and required force amid the turmoil of war? As a moral compass, the proportionality principle directs military operations to make sure civilian lives aren’t lost in the name of slight advantages. However, who determines what’s “proportionate” during a fierce conflict? Evolving alongside conflict is the difficulty of striking a balance between military goals and human rights. See how the ethics of the battlefield are shaped by this crucial idea.
According to the concept of proportionality, an attack on a clearly defined military target is prohibited if the anticipated harm to civilians or civilian property is greater than the anticipated military advantage. Applying this rule of international humanitarian law (IHL) is particularly challenging since it necessitates striking a balance between two seemingly unrelated issues.
Rule 14 of the ICRC research on customary international law also recognizes the notion of proportionality as customary international law. The regulation acknowledges that certain injuries to civilians might be justified, but it requires careful consideration of the potential military benefit. Whenever someone refers to “collateral damage,” the proportionality rule applies. Warring parties must follow regulations on measures to be taken during an attack, even if the principle of proportionality is followed.
Attacks on military targets that are “expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive about the concrete and direct military advantage anticipated” are prohibited by the principle of proportionality. Stated differently, the principle of proportionality aims to mitigate the harm produced by military operations by mandating that the outcomes of the employed means and techniques of warfare do not outweigh the desired military gain.
In international humanitarian law, proportionality is both a principle and a rule.
In international humanitarian law or IHL, proportionality is crucial. It is crucial for controlling how hostilities are conducted since it stipulates that Additional Protocol I and the expected military gain must not outweigh the foreseeable incidental harm. However, proportionality is more important than this and is mentioned in numerous other clauses of the 1977 Additional Protocols (APs) and the 1949 Geneva Conventions (GCs).
This article illustrates the various legal shapes that proportionality might take as an IHL principle and rule. To set legal principles apart from legal regulations, it first describes their general qualities. Second, it examines the proportionality principle, demonstrating its generality and standing as an IHL general principle. Lastly, the article evaluates the proportionality rule’s quality and tries to clarify its bounds.
Legal Guidelines
One characteristic of legal principles is their great level of generality. Rules are more precisely formulated, while principles prescribe general actions. An infinite range of applications can also be applied to a principle.
Since generality is another characteristic that can be used to characterize rules, some legal experts challenge this distinction. Rules, for example, may pertain to an ill-defined set of facts and an indeterminate number of individuals, whereas judgments pertain to a particular individual in a particular circumstance. However, compared to principles, rules are more specific.
For example, think about speed limits and other traffic regulations. The top speed restriction is set by law. It covers an infinite number of drivers in an infinite number of scenarios while they are traveling at any speed and at any time, making it universal. This stands in contrast to a specific and concrete decision: a fine levied on an individual who drives over the speed limit at a specific moment. On the other hand, a principle is more broadly generalized. Examples of how it can be used in various legal systems include the principles of proportionality, non-retroactivity, and good faith. As a result, the generality of principles is far wider than that of legal regulations.
The IHL Proportionality Principle
Owing to its broad application, the proportionality concept can be found outside of targeting in numerous GC and AP laws. Here are some instances of clauses that are proportionate:
Article GC I: When a party to a conflict is forced to hand over sick or injured people to the enemy, they should, to the extent that military matters allow, take some of its medical staff and supplies to help with their care.
Art. GC III, IV: The Protecting Powers’ delegates or representatives shall in no circumstances go beyond the scope of their current Convention-mandated duties. They will specifically consider the vital requirements for the State’s security in which they perform their jobs.
Art. GC III: Packages and mail meant for their previous camp should be sent right away to them. To guarantee the transportation of the inmates, community property, and any luggage that they are unable to bring with them due to restrictions imposed under this article’s second paragraph, the camp commander shall take any necessary actions in consultation with the representative of the prisoners.
Art. GC III: Absent exceptional arrangements, the Parties to the dispute whose citizens benefit from the use of such means of transportation should bear a proportionate share of the costs associated with such usage.
These illustrations demonstrate not only that proportionality under IHL has a high degree of generality that permits broad application, but also that it is not applicable everywhere. They also demonstrate the variety of ways in which the theory can be applied.
The first has to do with the necessity of a relationship between the resources used and the desired outcome. The term “proportionality of means to ends” refers to this type of proportionality. For instance, Article GC IV states that extra rations will be given to interns who work “in proportion” to the type of labor they undertake. It does not call for further comparison of antinomic interests, and hence, no weighing of interest; rather, it only requires a correlation between the means and the desired outcomes. “Necessity” and this kind of proportionality are intimately related if not the same thing. The definition of necessity includes, among other things, the ability of a measure to accomplish the intended goal and the pursuit of the least burdensome solution. However, it must be separated from military necessity, which can only be used when a standard specifically calls for it through a reference and can only be done so within the parameters allowed by IHL.
A “balance of interests” corresponds to the second sort of proportionality. A detaining power may, for example, order the internment of a protected person “only if the security of the Detaining Power makes it necessary,” according to Article of GC IV. This type of proportionality necessitates weighing competing values, in this example, the protected person’s rights against the detaining authority’s security. The proportionality criterion of IHL, which applies to attacks, is another illustration. According to this criterion, the predicted military gain must not outweigh the expected accidental damage. It compares expected military advantage with unintentional damage.
A third type of proportionality pertains to the relationship between the gravity of an offense and the appropriate penalty that would enable justice to be served. For example, Article II of GC II mandates that the High Contracting Parties pass laws that offer “effective penal sanctions” to anyone who violates the GCs seriously or who commands others to violate them. In the penal sphere, this type of proportionality is known as “inherent proportionality.” The severity of the offense must be taken into account while determining the appropriate sentence.
Lastly, a computation known as “mathematical proportionality” makes up the fourth type of proportionality. Mathematical proportionality in the sense of a pro-rata share is provided by the GC III article on the sharing of special transport costs. The clause reads as follows: “The Parties to the conflict whose nationals are benefited thereby shall bear proportionately the costs occasioned by the use of such means of transport, absent special agreements.”IHL contains additional mathematical computations that use proportionality, such as the advances of salary discussed in Article 60 of GC III.
The Proportionality Principle’s Normative Character
Beyond IHL, proportionality is important. The general idea of a balance between elements that, if they vary, must all ensure the same ratio of magnitude is always present, even though it does not apply in the same way in every subject. This equilibrium frequently involves conflicting interests.
Public international law is permeated with proportionality. It is present, for instance, in international criminal law, jus ad bellum, marine delimitation, WTO law, the protection of human rights organizations, and international investment law and arbitration.
More precisely, proportionality—along with the concepts of difference and assault precautions—is a cornerstone of international humanitarian law. It regulates how persons and civilian property are safeguarded during wars. It has a constraining function that affects targeting, as well as the selection of weapons to be employed, the necessary safety precautions, and the projected unintentional harm to civilians, which must not outweigh the anticipated military benefit.
The concepts of humanity and military necessity are delicately balanced under IHL norms. State governments attempted to strike a suitable balance between these conflicting interests while enacting the provisions of IHL. In this way, the 1868 St. Petersburg Declaration clearly states that it is necessary to strike a balance between the rules of humanity and the demands of war. Consequently, to achieve equilibrium, each legal concept and rule about the law of armed conflict expresses and takes into account the balance of these conflicting interests. The connection between those opposing interests when they produce contradictory outcomes is known as proportionality.
One of the guiding principles of international humanitarian law is proportionality. However, generic principles have other functions. They can be used as a way of interpreting other international legal norms, providing support for legal arguments, and avoiding non-liquet by filling in gaps in conventional and customary international law. Furthermore, legal concepts might serve as the international legal system’s cornerstone or bolster its methodical nature.
In summary
In international humanitarian law, proportionality can be both a rule and a principle. The proportionality principle is a multifaceted concept with a wide range of applications. The protection of people during hostilities is the only area in which the proportionality principle is applicable. I’ll discuss how the proportionality concept might be applied outside of targeting in a later piece, drawing on the ongoing crisis between Russia and Ukraine as examples.
