Comments on David Kretzmer’s “The inherent right to self-defence and proportionality in jus ad bellum

Dr Noam Lubell, Reader, School of Law, University of Essex

I’ve been asked to begin the discussion of Professor David Kretzmer’s new article on proportionality. Having benefitted from David’s wisdom in the past 20 years both academically and in my previous NGO life, I am not surprised to once again have thoroughly enjoyed reading his work. In particular I’m thankful to have been asked to take part in this discussion, as his latest article contains many thought-provoking points, of which we will probably only begin to scratch the surface (I urge you to read the article itself!). Considering the limited space in a discussion of this kind, I’m going to focus on just a few points related to two issues that arise a number of times in the article.

Reprisals / deterrence. 

• How much can we learn from cases of alleged reprisals in the post-Charter era as debated in the Security Council and elsewhere? While in some cases it seems that proportionality was at the heart of discussion, it also sometimes appears that the legal tests were applied in reverse – first came a political decision whether to condemn or accept the act; if wishing to condemn then it was dubbed a reprisal and thereby inherently unlawful, but if accepting it, then it was viewed as self-defence. If it had been called a reprisal then it was post-facto more likely to be declared disproportionate.

• Many of the cases in the past which were condemned as reprisals, involved action against armed groups. It may be the case that the shift towards accepting self-defence against armed groups now presents states with a potential justification which might not have been accepted in the past.

• Can the fact that states still seem to be engaging in acts of retribution/deterrence be accepted as justifying a form of defensive reprisals, or is this outweighed by the fact that states make a point of describing the act as self-defence rather than reprisals? As with other areas such as torture, the fact that states do it does not support its legitimacy; the action that we consider as determinant is not the torture itself, but rather the fact that states accept torture is unlawful and try to justify their action by calling it something else. Is it the same with reprisals and self-defence?

• The article makes a distinction between deterrence (affecting the motivation) as opposed to prevention (affecting the capacity). I wonder if this is perhaps a matter of more relevance to the ius in bello than the ius ad bellum. The question of attacks designed to harm morale/motivation has long been a subject of debate under the ius in bello, in particular in relation to the definition of legitimate military objectives. Part of this is due to the fact that ius in bello assessments are often made in relation to the “effective contribution to military action” and “definite” or “concrete and direct” military advantage. Affecting motivation will therefore often fall outside these criteria.

If we reach a stage where the enemy is in the midst of putting together the next attack and that this satisfies a right to resort to self-defence, does the ius ad bellum test need to distinguish between deterrence and prevention? Although utilising different approaches, they both involve taking military operations for the same ‘ends’ – ensuring that the other side does not continue attacking. Whether or not the targets are legitimate would then be judged by the rules of the ius in bello. Which brings me to the next matter for discussion:

The relationship between the ius ad bellum proportionality and the ius in bello proportionality.

This arises in various contexts in the article, and our understanding of it has a number of implications for how we view proportionality. David Kretzmer’s article notes that the ius ad bellum and ius in bello proportionality must be divorced from each other since there may be cases in which the measures satisfy the ius in bello proportionality test, but the use of force fails the ius ad bellum proportionality. This is an important point, but I wonder if the separation between them is as clear when applied to the negative mirror image of this scenario – i.e. are there any ius ad bellum implications if the attacks are disproportionate under the ius in bello? One might argue that a conflict that is waged in violation of the ius in bello would inherently fail to satisfy the ius ad bellum requirements. Of course such an argument risks missing the distinction between single acts and the overall conflict, but it may have credence in situations in which the ius in bello is systematically violated and not limited to exceptional violations. More importantly, The ius ad bellum – ius in bello relationship raises a number of questions, as follows:

• Is ius ad bellum proportionality still relevant once the conflict starts?

The later questions all fall away if this first one is answered in the negative and, as noted in the article, there are those who would do just that – taking the position that once an armed conflict has begun, the ius ad bellum will have been asked and answered, and we now hand over to the ius in bello for all legal concerns. This is an enticing proposition, if only for its apparent simplicity, but it also has some consequential drawbacks. In addition to the article’s analysis, there is a further obstacle to this approach which I’d like to add: advocating the end of ius ad bellum relevance requires the nearly impossible task of identifying the point at which its presence becomes superfluous. Any kind of ius ad bellum proportionality requirement must still be alive at the moment that the victim state begins engaging in self-defence, otherwise there is nothing to which it could be applied. But in that case when exactly do we stop assessing the ius ad bellum proportionality? Does it only apply on day one of the response and then quietly dissipate into the past? That cannot be the case since a slow response can be the prelude to a planned colossal war. In fact, our assumption is that the ius ad bellum proportionality relates to the scale of the response, and this is not something that is always readily measurable at the very first second. For this reason, it would seem that the ius ad bellum proportionality remains alive even after the first counter-strike has landed. Nonetheless, there are still many varying ways in which this test can be applied, and so it is the following question which becomes the crucial issue:

• To what do we apply the ius ad bellum proportionality test?

This is where the applicability of the ius ad bellum proportionality test becomes more complicated, and we need to proceed with caution. The fact that it remains relevant does not, in my opinion, mean that every single act during the conflict must be scrutinised in its light. This would miss the point of the distinction between the ius ad bellum and ius in bello proportionality tests, and would also be impossible to implement. The ius in bello proportionality test – and other rules on precautions in attack – need to be considered and applied both at the planning and execution stages. The latter is equally vital since circumstances on the ground may have changed once the executing unit is in place. Lower level commanders are therefore expected to be able to make decisions in light of ius in bello rules, including the proportionality test. Surely we wouldn’t expect the low level commanders on the ground to make judgement calls about the ius ad bellum effects as well? This would go far beyond their expected responsibility and is not something they can judge from their vantage point. The ius ad bellum proportionality test is one that must be applied in a wider context, measuring the overall scale of the response in light of the legitimate aims, rather than focusing on specific military attacks.

The ius ad bellum proportionality test remains relevant therefore only insofar as one is assessing the totality of the response in self-defence.  It is a snapshot of the big picture, not an ongoing inspection of single operations. Accordingly, it will be concerned with matters such as the general geographical scope of the response and the overall nature and scale of damage inflicted. Moreover, while not limited to the first strike on the first day, it should be primarily focused on the early stages of the conflict rather than the evolving armed conflict (which, as the article notes, takes on a dynamic of its own). There is however an argument for ius ad bellum proportionality remaining engaged at later stages, if one side significantly widens the scope of the conflict (recalling the Higgins example of keeping the Falklands/Malvinas conflict limited to the islands and not taking it to the mainland). This latter point deserves being revived in the context of the current debates over extraterritorial force against non-state actors: State A may be engaged in an armed conflict against a non-state actor X located in the territory of State B. Assume the armed conflict is already taking place, and the ius ad bellum issues between States A & B have been asked and answered. However, Group X now moves its base of operations into State C and continues engaging State A. The armed conflict between A & X is already in force, but if State A desires to take action on the soil of State C, the ius ad bellum questions must be addressed anew. This is another example in which the ius ad bellum tests, proportionality amongst them, remain relevant after the conflict begins.

• Can the same act be subjected to both ius ad bellum and ius in bello proportionality at the same time?

Legal systems can allow for one act to be considered as violating more than one rule, so in principle this is possible. But, as noted above, we shouldn’t be using the ius ad bellum proportionality test for judging  single acts unless they constitute evidence of a shift in overall scale/scope. The article mentions the criticisms of Israel’s military operations in Lebanon, noting that some of them appeared to be saying that Israel overstepped the ius ad bellum proportionality requirements. In fact, many of these criticisms should have been focused on ius in bello questions, rather than ad bellum. The ius ad bellum proportionality is indeed relevant to decisions such as the overall scale of the initial response, and to matters such as taking the operations all the way to Beirut. However, targeting of specific buildings are a question for the ius in bello – e.g. is certain infrastructure a military objective, were the people killed entitled to civilian protection, and if so were their deaths within the ius in bello proportionality restrictions.

• How will this test be implemented in practice?

This is where I fear much of the above breaks down. As academics we care about whether the proportionality (or disproportionality) was a matter of the ius ad bellum or ius in bello, but outside the circle of international lawyers specialising in this area of law, this distinction is rarely recognised. Political statements at the country level or within UN bodies tend to use the phrase ‘proportionality’ indiscriminately, basing it on a gut feeling of when something was ‘over the top’ as far as they are concerned. David Kretzmer’s article does a huge service for all of us who care about understanding what we mean by proportionality, and recognising the many underlying assumptions and qualifications that must be made before we can consistently and coherently use this term. This goes beyond the distinctions between ius ad bellum and ius in bello, but also covers the possibility of using different types of proportionality tests even within the ius ad bellum, depending on the circumstances of the case. Notwithstanding the thoroughness of the analysis, I fear that expecting the Security Council debates or anyone outside our circles to recognise a multiplicity of proportionality tests and heed the need for clarity, might be a hope too far, and we will continue to see the term being used in a haphazard manner based on instinctive (and political) assessments.

 Once again, David Kretzmer’s article is an admirable piece of work, providing a sorely-needed analysis of the questions surrounding ius ad bellum proportionality in modern conflicts, and will undoubtedly enter the canon of works on this topic. I look forward to the rest of this discussion.