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Joint Blog Series on International Law and Armed Conflict: Jann Kleffner on ‘Wounded and Sick and the Proportionality Assessment’

Published on October 13, 2017        Author: 

The final installment of our joint blog series arising from the 2017 Transatlantic Workshop on International Law and Armed Conflict, ‘Wounded and Sick and the Proportionality Assessment’- by Jann Kleffner (Swedish Defence University) is now available on Intercross

Here’s a taster of Jann’s post:

For all wounded and sick other than civilian ones, the question looms large how that obligation to respect and protect in all circumstances can be squared with the absence of such persons from the collateral damage side of the proportionality equation. The following possibilities present themselves.

Option 1The obligation to respect and protect such wounded and sick in all circumstances could be interpreted to mean that any incidental harm to them falls foul of the obligation and hence constitutes a violation of the law of armed conflict.

[…]

Option 2: The right of parties to an armed conflict to attack lawful targets could be understood to supersede the obligation to respect and protect the wounded and sick other than civilian ones.

[…]

Option 3The obligation to respect and protect could be interpreted to require a proportionality assessment in which incidental harm to wounded and sick other than civilian ones is legally assimilated to harm to civilians.

Read the rest of the post over on Intercross.

 

Thanks to all who participated in this joint blog series. Special thanks to post authors, readers and commentators, and to our partners over at Intercross and Lawfare. 

 

 

Joint Blog Series on International Law and Armed Conflict: Geoff Corn on Wounded and Sick, Proportionality, and Armaments

Published on October 11, 2017        Author: 

The fourth post in our joint blog series arising from the 2017 Transatlantic Workshop on International Law and Armed Conflict, ‘Wounded and Sick, Proportionality, and Armaments’- by Geoffrey Corn (South Texas College of Law Houston) is now available on Lawfare.

Here’s an excerpt: 

Imagine you are commanding forces that have just repulsed a combined arms enemy ground attack. The enemy is now withdrawing, and you observe what are obviously wounded enemy soldiers being loaded onto enemy combat vehicles. You fully anticipate the enemy to regroup in order to continue the offensive. These vehicles are not protected because they are not properly marked nor exclusively engaged in the collection and evacuation of the wounded and sick. Instead, the enemy is employing the common practice of evacuating wounded with any available combat vehicle. While this is occurring, other enemy forces are providing covering fires in support of the withdrawal. You have on-call close air support assets, and your air support coordination liaison asks if the enemy vehicles should be attacked? The enemy vehicles are lawful objects of the attack, but you know that the military wounded and sick must be respected and protected. It is therefore clear that an attack may not be directed against the wounded enemy soldiers. But the ICRC’s updated Commentary asserts that before launching the attack on the withdrawing enemy forces who are not hors de combat you must assess whether the risk created to the wounded enemy personnel is excessive in relation to the concrete and direct military advantage anticipated.

[…]

Suggesting that such an obligation is logically inferred from the civilian proportionality rule is fundamentally flawed, because unlike military personnel, civilians (who do not take a direct part in hostilities) do not accept the risks of combat. 

Read the rest of this entry…

 

Joint Series on International Law and Armed Conflict: Janina Dill on Assessing Proportionality

Published on October 11, 2016        Author: 

The final installment of our joint blog series arising out of the 2016 Transatlantic Workshop on International Law and Armed Conflict, ‘Assessing Proportionality: An Unreasonable Demand on the Reasonable Commander?’- by Janina Dill (London School of Economics) is now available on Intercross.

Here’s a snippet:

jdill-182Proportionality in International Humanitarian Law (IHL) demands that the attacker weighs incommensurate values: the concrete and direct military advantage anticipated to arise from an attack against the expected incidental harm to civilians and damage to civilian objects. It is common place that for that reason (amongst others) it is difficult to applyArticle 51(5)b of the First Additional Protocol to the Geneva Conventions and the corresponding principle of customary law to real world cases (here, here, here, here, here). The legal rule seemingly bends to endorse diametrically opposed interpretations of the same attacks; salient examples include some Israeli air strikes in the 2014 campaign in Gaza (hereand here). References to proportionality in the court of public opinion therefore often fan the flames of discord rather than adjudicate between diverging views. In the court of law, specifically in the chambers of the International Criminal Tribunal for the former Yugoslavia, proportionality has largely failed to add to the justiciability of unlawful attacks.

At the same time, proportionality – and indeed the task of comparing seemingly incommensurate values – are not unusual in law. What then is the problem with the principle of proportionality in IHL?

Proportionality according to the reasonable observer

A common approach to assessing an agent’s judgment of excessiveness is to look at it from the point of view of a “reasonable observer”. However, an empirical investigation of attitudes towards collateral damage yields anything but a concretization of what proportionate incidental harm looks like. When asked to put themselves in the place of a commander partaking in a mission to clear an Afghan village of Taliban fighters, 27% of British respondents and 20% of American participants in a survey I conducted in 2015 said they would not accept any foreseen civilian deaths as a side-effect of an attack meant to kill a group of Taliban fighters. At the same time, 17% of British and 21% of American respondents said they would accept however many casualties the attack would cause. 44% and 41% of the populations respectively hence rejected the very premise of proportionality in war: the prospect of a military advantage warrants a positive, but limited number of unintended, yet foreseen civilian casualties.

Read the full post over on Intercross. 

 
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