The Question of Proportionality in Warfare

Blind Justice with Scales & Sword - Daniel Eskridge 

In any given war people will die. High number of civilian casualties per se is not a crime of war, especially if the attacks are not intentionally directed against civilians. Luís Moreno Ocampo explained it better:

"Under international humanitarian law and the Rome Statute, 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)." -- (pag. 5 of this IIC Doc)

The above words were produced in 2006, nevertheless it remains usual to hear reporters, pundits and politicians misapply the term "proportional" in a clear attempt to pervert public opinion and secure votes. They will often evoke the international law and accuse one of the parties of "disproportional response" without taking into consideration all the facts regarding the conflict.

In their quest to divert public support from one of the sides, the mentioned interlocutors will misuse the word "proportionality"as if in military terms it meant "Properly related in size, degree, or other measurable characteristics" (source: here); in other words, in the mind of the corrupt, if a foe targets civilian objects with poor-quality technology the defence forces of the attacked nation, in turn, should set aside their state of the art technology for a moment and, equally, respond with low-grade technology (if not with rocks) simply to please the international community.

Dissecting Society is for diplomacy but against appeasement and political correctness. Thus, we decided to look at the proportionality issue in the spirit of Machiavelli and of other such great minds.

"Rule 14. Proportionality in Attack: Launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited." -- Chapter 4 of the International Humanitarian Law (IHL)

When the enemy forces use civilian objects (schools, places of worship, residential areas, hospitals etc) for military purposes (i.e. hiding weapons, carry out attacks or even sheltering from direct fire) the law says those objects lose the protection against attack (Chapter 2, Rule 10, section A of the IHL) as they gain a clear military advantage from those objects.

When the enemy forces use civilians as human shields (by preventing them from leaving and/or by attacking from locations where civilians live or take shelter in) they are in fact breaking the international law because doing so "is contrary to the principle of distinction and violates the obligation to take feasible precautions to separate civilians and military objectives" (Rule 97 of the IHL) - therefore void of legal (not to mention moral) justification.

When the enemy forces do not properly identify themselves as combatants and dress as civilians (who are "not allowed to perform military functions and must not be attacked" in Military Uniforms and the Law of War by Toni Pfanner) they again violate the principle of distinction and IHL Rule 65 in which Perfidy is prohibited (i.e. dressing as a civilian in order to kill, injure or capture an adversary).

When enemy forces invite civilians (women and children) to engage in direct combat with their adversaries, those civilians must know that they "(..) lose their protection when and for such time as they take direct part in hostilities, and may then be the object of an attack." (idem)

To sum up, in asymmetric warfare, a belligerent party that wages a war by using civilians as human shields, by inciting them to take part in hostilities (often in civilian clothes while carrying their weapons openly), by storing weapons in and launching missile attacks from civilians objects, by placing booby-traps in buildings and neighbourhood blocs (in a clear violation of Art.7 of the Protocol on Prohibition on the use of Mines, Booby-Traps and other devices), by attacking solely civilian targets on a daily basis and by digging tunnels to infiltrate the adversary's territory to kidnap civilians and soldiers; then that party and its collaborators do not have the legal grounds to invoke violation of the proportionality principle, because when there is a calculated direct and concrete military advantage and necessity to bring the foes to submission the proportionality exists.

Repeating the "disproportional response" mantra without fully analysing the circumstances is sheer sophism.

"While Socrates looked for objective and eternal truths the Sophists were promoting ideas of relativism and subjectivism, wherein each person decides for him or herself what the true and the good and the beautiful are.  This appealed to the mob, the crowds, the unthinking horde..." -- Philip A. Pecorino