Proportionality in War – Richard Cohen

Winston Churchill on Proportionality in War 1941

We ask no favours of the enemy. We seek from them no compunction. On the contrary, if to-night the people of London were asked to cast their vote whether a convention should be entered into to stop the bombing of all cities, the overwhelming majority would cry, “No, we will mete out to the Germans the measure, and more than the measure, that they have meted out to us.” The people of London with one voice would say to Hitler: “You have committed every crime under the sun. Where you have been the least resisted there you have been the most brutal. It was you who began the indiscriminate bombing. We remember Warsaw in the very first few days of the war. We remember Rotterdam. We have been newly reminded of your habits by the hideous massacre of Belgrade. We know too well the bestial assault you are making upon the Russian people, to whom our hearts go out in their valiant struggle. We will have no truce or parley with you, or the grisly gang who work your wicked will. You do your worst and we will do our best.”

We live in a terrible epoch of the human story, but we believe there is a broad and sure justice running through its theme. It is time that the Germans should be made to suffer in their own and cities something of the torment they have twice in our lifetime let loose upon their neighbours and upon the world.

We have now intensified for a month past our systematic, scientific, methodical bombing on a large scale of the German cities, seaports, industries, and other military objectives. We believe it to be in our power to keep this process going, on a steadily rising tide, month after month, year after year, until the Nazi regime is either extirpated by us or, better still, torn to pieces by the German people themselves.

Every month as the great bombers are finished in our factories or sweep hither across the Atlantic Ocean we shall continue the remorseless discharge of high explosives on Germany. Every month will see the tonnage increase, and, as the nights lengthen and the range of our bombers also grows, that unhappy, abject, subject province of Germany which used to be called Italy will have its fair share too.

In the last few weeks alone we have thrown upon Germany about half the tonnage of bombs thrown by the Germans upon our cities during the whole course of the war. But this is only the beginning, and we hope by next July to multiply our deliveries manifold.

Today’s Position

Under international humanitarian law and the Rome Statute 2002 the death of civilians during an armed conflict, no matter how grave and regrettable, does not in itself constitute a war crime. International humanitarian law and the Rome Statute permit belligerents to carry out proportionate attacks against military objectives, even when it is known that some civilian deaths or injuries will occur. A crime occurs if there is an intentional attack directed against civilians (principle of distinction) (Article 8(2)(b)(i)) or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality) (Article 8(2)(b)(iv)).

Article 8(2)(b)(iv) criminalizes:

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 or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;
Article 8(2)(b)(iv) draws on the principles in Article 51(5)(b) of the 1977 Additional Protocol 1 to the 1949 Geneva Conventions restricts the criminal prohibition to cases that are “clearly” excessive. The application of Article 8(2)(b)(iv) requires, inter alia an assessment of:

  • the anticipated civilian damage or injury;
  • the anticipated military advantage;
  • and whether (a) was “clearly excessive” in relation to (b).

Professor Laurie Blank from Emory USA

We have heard from Churchill and have looked at the Rome Statute and finally let us hear from Professor Laurie Blank from Emory USA follow-up on Gaza, proportionality, and the law of war:

In the case of the current Israel-Hamas conflict, Israel’s “Operation Protective Edge” seeks to repel and deter Hamas rocket and tunnel-borne attacks on Israel. Israel’s proportionate measure of force is not constrained to only rocket and tunnel attacks on Hamas; rather, international law assesses the lawfulness of Israel’s resort to force based on Israel’s goals of repelling the attack. Destroying rocket launchers, tunnels, weapons caches, Hamas command posts and bunkers — these objectives are directly proportionate to the need to repel the attacks.

Importantly, this rule of proportionality does not address civilian casualties. That is the task of the law of war principle of proportionality analysed above. Unfortunately, these two concepts of proportionality are regularly conflated, leading to misunderstandings and ineffective legal analyses. First, if the bare fact of civilian casualties were to become the measure of whether the overall use of force in self-defence is lawful, the international legal framework governing the use of force in self-defence would be undermined. Any military operation causing civilian casualties would then be considered unlawful, even if a valid exercise of self-defence, emasculating state options for protecting their own civilians against attack.
Second, focusing on civilian casualties, without any legal analysis of proportionality, the targeting process or the nature of the objective attacked, simply incentivizes insurgent groups to co-mingle military personnel and assets within the civilian population and use civilians as a shield, thus causing greater and greater numbers of civilian casualties and louder claims of unjust war and war crimes. Facilitating the defending party’s exploitation of the law for its own defensive and propaganda purposes in this way gravely endangers the very persons the law of war seeks to protect—the civilians caught up in the combat zone—and thus undermines the essential fabric of the law of war.

At the same time, self-defence is not a trump card in the law of war proportionality analysis above. If the military advantage of every application of military combat power in a conflict were the overall self-defence of the nation in response to an attack, proportionality in the law of war would have no meaning. Few, if any, measures of civilian casualties would be considered excessive in such a framework. Military advantage must therefore be assessed in the context of the particular attack or operation at issue.

Observing and trying to understand proportionality from afar – through media reports and the blogosphere, for example – is fraught with uncertainty and ambiguity, because almost all of the information integral to the actual methodology and decision-making is not available or communicated to the public. The instinct to make judgments after the fact based merely on numbers of casualties or which side’s civilians were killed in greater numbers is thus strong, because it often is the only information at hand. But this is not the actual law of proportionality. Nor is it an effective way to maximize the law’s core purposes. The uncertainty and ambiguity does not mean that proportionality is not being applied or implemented in a lawful way – it merely means that we cannot peer into the processing factory to see how the sausage is made.