Wednesday, December 31, 2008

On the Issues of Proportionality

Background info:


On the Issues of Proportionality

International law

A military target remains a legitimate military target, even if it is located in a civilian area.

"Civilians do not enjoy absolute immunity. Their presence will not render military objects immune from attack for the mere reason that it is impossible to bombard them without causing injury to the non-combatants."                                                     Oppenheim's 'International Law'

The use of civilians as shields to try to prevent attacks on military targets is prohibited.

"The presence of a protected person may not be used to render certain points or areas immune from military operations."

Fourth Geneva Convention, Article 28


The armed forces are not liable where injury to civilians results from unavoidable collateral damage, provided it is proportionate to the military gain expected of the attack.


"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… Members of the armed forces are not liable for such incidental damage, provided it is proportionate to the military gain expected of the attack"

Major General A.P.V. Rogers, a former Director of British Army Legal Services

Terrorist organizations that hide behind civilians bear the primary responsibility for civilian casualties.

"Should civilian casualties ensue from an attempt to shield combatants or a military objective, the ultimate responsibility lies with the belligerent placing innocent civilians at risk"

Dinstein,'Conduct of Hostilities under the Law of International Armed Conflict'



The correct party to assess the proportionality of a military action is the military commander in the field.


"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' "

Committee Established to Review NATO Bombings in Yugoslavia


The security of one's own forces is a relevant consideration in gauging proportionality.


"The concept of military advantage involves a variety of considerations including the security of the attacking force."

 Bothe, Partsch and Solf, New Rules for Victims of Armed Conflict


International practice

The above principles of the law of armed conflict have been adopted as the basis of military guidelines by most states. The following examples of military manuals are typical:

Australian Defence Force Manual: 


The presence of non-combatants in or around a military objective does not change its nature as a military objective. Non-combatants in the vicinity of a military objective must share the danger to which the military objective is exposed.


Belgian Teaching Manual for Soldiers:


Objects occupied or used by enemy military forces are military objectives even if these objects were civilians at the outset (houses, schools or churches occupied by the enemy).


German Military Manual:


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.


France's Law of Armed Conflict Manual:


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.


Spain's Law of Armed Conflict Manual:


The principle of proportionality… is based on recognition of the fact that it is difficult to limit the effects of modern weapons and methods of warfare exclusively to military objectives and that it is likely that they will cause collateral damage to civilians and civilian objects.


Israel – IDF operational planning and orders:


In cases where there is doubt as to whether a civilian object has turned into a military objective… one is to assume that it is not a military objective unless proven otherwise.


Even when it is not possible to isolate the civilians from an assault and there is no other recourse than to attack, 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.





International practice (contd.)


A survey of military actions directed against terrorist and other groups using concealment strategies within civilian population centers underlines the tragic cost that inevitably results to civilians in such cases. For example, the campaigns directed against Taliban and Al-Qaeda in Afghanistan and against Serbian militants in Kosovo, give an indication of the scale of civilian casualties that have been involved:


Yugoslavia – 'Operation Allied Force'


About 500 Yugoslav civilians were reported to have been killed in the 90 air strikes that took place during the Allied Force operation. Among the significant incidents that occurred during the campaign:


§  In April 1999, 16 civilian technicians and workers, mostly young people, were killed and 16 more civilians were injured in an attack on the Serbian Radio and Television headquarters in Belgrade.  The Committee Established to Review the NATO Bombings in Yugoslavia conducted a review of the incident, and concluded that "the civilian casualties were unfortunately high but do not appear to be clearly disproportionate".


  • In May 1999 at least 100 civilians were killed in an attack on the village of Korisa. NATO emphasized that the bombing was directed at "legitimate military targets" and that the loss of life was regrettable, but a legitimate outcome of a necessary operation.



§  Later that month (May 1999), a bombing attack led to the deaths of at least three patients in the Dragiša Mišović hospital in Belgrade. The attack was directed at a military barracks in the Dedinje district adjacent to the hospital.


Afghanistan – 'Operation Enduring Freedom'


  • On October 21, 2001, twenty-three civilians were killed in an attack on the village of Thori, located near a Taliban military base in Oruzgan province


  • As many as thirty-five Afghan civilians were reported killed on October 22, 2001 in an attack directed at Taliban and al-Qaeda positions believed to be in the village of Chowkar-Karez.


  • In July 2002, an air strike killed dozens of guests at a wedding party in the Uruzgan province. Noting that gunfire had originated from the area, a Coalition spokesman explained that "the responsibility for the loss rests with those that knowingly directed hostile fire at coalition forces".


  • In July 2005, 17 Afghan civilians, including women and children, were killed in an attack on a terrorist base in the province of Kunar. A coalition statement noted that "when enemy forces move their families into the locations where they conduct terrorist operations, they put these innocent civilians at risk".


Hamas' behavior

Hamas' modus operandi is characterized not only by deliberate attacks on Israeli civilians, but also its disregard for the lives of Palestinian civilians. Making no attempt to comply with the humanitarian obligation to distinguish combatants from civilians, Hamas terrorists wear civilian clothes and hide weapons and fire missiles from the heart of populated civilian areas.

In recent months, the Hamas controlled media in Gaza has publicly called for civilians to act as human shields in attempt to prevent terrorist leaders and infrastructure from being targeted. The following are but a few of the documented examples of calls in the Hamas controlled Gaza media for Palestinians civilians to serve as human shields:

§  Hamas’ Al-Aqsa TV called upon children to form a human shield at the home of a terrorist in the a-Shouqaf quarter of Sajaiyeh in order to protect the building from an anticipated IDF air strike (March 1).

§  Al-Aqsa TV News broadcast a story about how a crowd of civilians gathered on the roof of Abu Bilal al-Ja’abeer in the Northern Gaza strip, used for launching terrorist attacks, in order to cause the IDF to abort a threatened air strike against the structure.

  • Al-Aqsa TV called upon the Palestinians in the northern Gaza Strip to go to the house of terrorist Othman al-Ruziana in order to protect it against an anticipated air strike (February 29,2008).

§  Al-Aqsa TV called upon the residents of Khan Yunis to gather at the house of Ma’amoun Abu ‘Amer due to an anticipated air strike. (February 28,2008). An hour later dozens of Palestinians from Khan Yunis were reported to have gathered on the roof of Abu ‘Amer’s house to serve as human shields to prevent the house from being hit (Pal-today Website, February 29,2008)


Israeli conduct

Israel makes significant efforts to avoid or minimize civilian casualties, by ensuring that its attacks are directed against legitimate military targets, and that in conducting its operations incidental injury to civilians is kept to a minimum. Every potential military operation is considered on an individual basis in order to ensure that it meets the test of proportionality.


In practice this means many proposed military operations are rejected when it appears that the likelihood of collateral damage to civilians and their property is too high. As Israel's High Court of Justice has held, in reviewing Israeli security actions:


This is the destiny of democracy, as not all means are acceptable to it and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand.


Israel Ministry of Foreign Affairs

30 December 2008