Privileging Asymmetric Warfare (Part II)?: The "Proportionality" Principle Under International Humanitarian Law

Abstract The laws of war are undergoing a fundamental transformation. The first step was the unmooring of the obligations of states and armies from the binds of reciprocity-the prospect that violations should be avoided because they will result in comparable reprisals from the other side-that began with the Geneva Conventions of 1949 and culminated in the 1977 Additional Protocols (AP I and II). The second major step-still an ongoing process-has been to substitute for the threat of reprisals the grounding of these obligations in enforceable, positive law. What started haltingly with the promulgation of several "grave" offenses in Geneva has-with the establishment of the International Criminal Court, international criminal tribunals for the former Yugoslavia and Rwanda, conventions against torture and other practices, and the sustained pressure of nongovernmental organisations-reshaped the international legal landscape. The focus of this article is on the so-called principle of "proportionality," which regulates the conduct of warfare in an effort to limit harm to civilians during otherwise legitimate armed conflict. I use the qualifying adjective "so-called" because "proportionality" in this context is a misnomer. The actual obligation, as set forth in AP I, speaks in terms of prohibiting (and deferring) attacks expected to cause incidental civilian losses "which would be excessive in relation to the concrete and direct military advantage anticipated." Neither the text nor the policy of IHL requires some form of "balancing" or use of a "sliding scale" to ensure that the military objective is "proportionate," in the sense of being commensurate with the extent of civilian losses. What is required is that the military use no more fine than necessary to accomplish concrete, direct military objectives. The proposed "excessive loss" formulation is not only truer to the text of AP I but provides a sounder, more principled basis for judging violations, for insisting on military commander compliance-than the more elastic, manipuhble "proportionality" formulation, which invites commentators and tribunals to second-guess military objectives and compare and weigh essentially non-comparable factors. Table of Contents I. The Changing Paradigm: From Reciprocity to Positive Law 144 II. Resort to War (Jus Ad Bellum) vs. Conduct of Warfare (Jus In BeIh) 147 III. The "Proportionality" Principle in the Conduct of War 150 A. "Disproportionate" or "Excessive" Loss 150 B. "In Relation to die Concrete and Direct Military Advantage Anticipated" 154 I. THE CHANGING PARADIGM: FROM RECIPROCITY TO POSITIVE LAW The law of armed conflict, also referred to as the laws of war or as international humanitarian law (IHL), has moved away from a contractual model to a largely regulatory model. The change started with the 1949 Geneva Conventions (Geneva I- IV) and culminated in die 1977 Additional Protocols to die Geneva Conventions. Additional Protocol I (AP T) deals with international armed conflict and Additional Protocol II (AP II) deals with non-international armed conflict.1 Widi a few notable exceptions (US, India, Israel and Pakistan), AP I has garnered nearly universal ratification. Even non-ratifying countries, uch as the US and Israel, purport to adhere to AP I to the extent it reflects customary international law (CIL). The International Committee of the Red Cross (ICRC), which sees itself as the guardian of the Geneva process, has over the years documented state practices in line with AP I prescriptions in order to lay the case for the essential equivalence between AP I and CIL.2 The Geneva process reflects a fundamental paradigm shift in the rules of warfare. …