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As stated in the Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia (2000), “the application of the principle of proportionality is more easily stated than applied in practice”, both under jus ad bellum and jus in bello.
While virtually all states and scholars remain committed, in principle, to proportionality as a lex lata constraint on the use of military force and other security measures, the list of factors to be weighed under a proportionality analysis, the relative weight assigned to each factor and the desirable ends against which the proportionality of the military force employed is examined, all remain highly controversial. The application of the principle of proportionality to asymmetric conflicts raises an additional set of theoretical and practical problems.
The conference examined the reasons for the limited degree of enforcement of humanitarian norms in times of conflict, assessed the promise and limits of accountability-generating mechanisms – especially international criminal courts - and re-examine the position of Israel, Europe and the U.S. regarding international criminal law norms and institutions.
The conference’s opening session, “The Principle of Proportionality and the Just War Theory”, included four prominent speakers who responded to a comprehensive paper by Prof. Jeff McMahan of Rutgers University, entitled “Proportionality in Self-Defense and War”. Prof. Ariel Colonomos of CERI- Sciences Po Paris, Prof. Ruth Gavison and Prof. Moshe Halbertal of the Hebrew University of Jerusalem and Mr. Charles Shamas of the Mattin Group in Ramallah addressed a very broad range of questions pertaining to proportionality analysis and its relationship to the theory of just war. Issues discussed included, among others, the difficulty in aggregating and comparing the harm caused to combatants and civilians; the degree to which those who wage an unjust war have reduced proportionality protection, or a different type of proportionality protection; the very different perspectives of planners seeking to win a war and soldiers on the ground fighting for their lives, and the possible distinction between battlefield proportionality and planning proportionality; difficulties inherent in the fact that proportionality rules, and IHL in general, greatly rely on self-enforcement; and the need to address asymmetric conflicts, as these become the norm rather than the exception.
The second panel was titled “Proportionality as a Legal Limit on Resorting to Force”. Prof. David Kretzmer of the Hebrew University of Jerusalem, Dr. Raphaël van Steenberghe of the University of Louvain and Mr. Rotem Giladi of the University of Michigan and the Hebrew University of Jerusalem addressed in their respective papers a series of questions relating to jus ad bellum proportionality, jus in bello proportionality, the distinction between them, and the relevance of proportionality analysis in IHL and in occupation law.
The third conference panel dealt with the subject of “Proportionality and Rationality”. Prof. Avi Bell of Bar-Ilan University and the University of San Diego presented an economic critique of IHL proportionality. Ms. Ashley Deeks of Columbia University discussed cognitive biases that affect proportionality assessment, and suggested ways in which the impact of these biases may be reduced. Dr. Tomer Broude of the Hebrew University of Jerusalem discussed behavioral framing effects, arguing that empirical behavioral research is necessary to determine what factors are taken into account by the “reasonable military commander” in making proportionality assessments, and that such information is relevant when establishing the substance of proportionality standards.
The fourth conference panel was titled “The Doctrine of Proportionality: Law as is and as should be.” Prof. Aaron Fellmeth of Arizona State University looked at proportionality doctrine through the lens of international custom. He concluded that enforcement through criminal prosecution is over-rated, and that commitments between states for greater transparency without prosecution may prove more effective. Dr. Robin Geiss of the International Committee of the Red Cross addressed proportionality and force protection, and argued that protection of one’s own forces may be considered a military advantage in the proportionality calculation, but with restrictions (such as not affording higher relative value to one’s soldiers’ lives than to enemy civilians), in order to prevent “slippery slope” risks. Mr. Guy Sela of Oxford University suggested that we should think of proportionality as a duty of benevolence, more similar to the case of charity, than a constraint. We have a duty not to use force which is excessive even to those who do us wrong and the fact that one has the right to act does not settle the issue of whether one should.
The conference’s fifth panel dealt with “Special Challenges in Applying the Proportionality Principle”. Prof. Christian Tams of Glasgow University and the University of Kiel addressed the increasing phenomena of states claiming a right of self-defense vis-à-vis non-state actors, especially in the case of counter-terrorism. He suggested that proportionality provides only a prohibition on excessiveness, and that necessity should play a greater role as a restraining principle in this context. Dr. Cordula Droege of the International Committee of the Red Cross discussed proportionality and the boundaries of IHL. Looking at whether proportionality and IHL continue to apply over a member of an organized armed group involved in a non-international armed conflict when that member moves to the territory of a third state, she argued that the criteria for applicability of IHL and thus proportionality is never territorial, but rather the legal nexus between the person and the parties to the conflict – and therefore it is important to consider what the boundaries of IHL are in order to assess where a member of an organized armed group may be attacked and if that affects the considerations of proportionality. Mr. Ruvi Ziegler of Oxford University and Mr. Shai Otzari of Haifa University presented a model to outline different formulae for defining the attacker’s duty to risk its soldiers under the current IHL legal structure in order to minimize the risk of collateral damage to its enemy’s civilians. They argued for an approach combining intrinsic justifications with concrete instrumental considerations, maintaining a realistic view of IHL that recognizes the instrumental value of soldiers and acknowledges soldiers’ human dignity.
The sixth session of the conference addressed “The Outer Limits of the Proportionality Discourse”. Mr. Bruno Demeyere of Katholieke Universiteit Leuven discussed the crucial importance of the definition of the term ‘attack’ in Art. 49(1) of Additional Protocol I. He analyzed in a number of contexts the extent to which humanitarian protection can be ensured by interpretative means. Prof. Francoise Hampson of the University of Essex discussed the widespread confusion among military commanders, statesmen and commentators as to the meaning of the principle of proportionality, and the frequent incorrect application of the term to situations that raise different questions altogether (such as whether civilians were correctly viewed as having taken a direct part in hostilities, rather than whether the harm caused them violated the principle of proportionality). She offered three explanations for the current confusion: firstly, the illusion of high-tech, casualty-free wars creates unrealistic expectations of close to no casualties; secondly, the lack of transparency on the part of states leads to misjudgment of their actions; and thirdly, the lack of implementation of art. 83(1) of Additional Protocol I obliging states to encourage the study of the Geneva Convention and its Protocols by their civilian populations results in few layperson knowing what the rules actually are. Dr. Jann Kleffner of the Swedish National Defence College discussed the concept of proportionality portrayed in sec. IX of the ICRC Interpretive Guidance on Direct Participation in Hostilities, according to which in addition to existing proportionality restrictions, a party must also consider the kind and degree of force permissible against persons not entitled to protection, and must not exceed what is necessary to accomplish the legitimate military purpose.
Session seven of the conference was dedicated to “Judicial and Quasi-Judicial Applications of the Proportionality Principle”. Dr. Amichai Cohen of Ono Academic College argued that the current system of investigating claims of disproportionate actions in the criminal context is insufficient, and suggested the creation of a new, external, permanent oversight mechanism and investigative body. Prof. Yuval Shany of the Hebrew University of Jerusalem discussed the need for a process-based approach to proportionality analysis. He argued that proportionality is a standard of international law, rather than a rule, and was designed to be applied to complex situations which cannot be controlled through the application of basic rules – and consequently proves difficult to judge using a substantive approach. Mr. Rogier Bartels of the Netherlands Defence Academy argued that international humanitarian law was not written as a set of rules to be enforced in the courtroom, but rather as a set of rules that dictates how to act in the midst of war – and as a result, IHL rules are not easily applicable to legal procedures after the fact. Proportionality hearings often suffer from problems of hindsight, insufficient procedural protections, and great subjectivity.
The eighth session of the conference focused on “Social Contexts of Proportionality Analysis”. Prof. Mark Osiel of the University of Iowa contended that non-legal restraints on excessive force in war have become more important than the legal restraints imposed by the principle of proportionality. He argued that public opinion in the modern world is a critical force in warfare, and though officers in modern armies may fear for their careers if they place their soldiers in lethal situations, the public perception of war and the outcry of the public against civilian casualties has prompted a shift in the way that wars are fought. Prof. Laurie Blank of Emory University discussed “law fare” – using law as a substitute for traditional military means for achieving an objective: from a strategic point of view, law fare is used to get public support to end a military operation by claiming violations of legal obligations by the other side of a conflict, while from a tactical point of view law fare involves the manipulation of the legal obligations of the other side. She argued that as a result of mainstream media and human rights organizations focusing on loss of civilian life as the central concern in so many conflicts, overshadowing considerations of law and military necessity, the result has actually been the increase in loss of civilian life as insurgents rush to place civilians in danger in order to harm military objectives.
The ninth and final session of the conference was entitled “A View from the Field”. Col. Liron Libman, Head of the International Law Division in the IDF's Military Advocate General’s Office, concurred with many of the conference speakers that proportionality is a difficult principle to comprehend and apply in a practical sense. He argued that the purpose of proportionality is not to ensure that there is a perfect balance, but rather to ensure that there is no excessive imbalance, and that the role of the military lawyer is to help construct this scale and ensure that military advantage and collateral damage are considered. Col. Libman stated that given the number and complexity of factors that can enter into the equation, there may be a need to apply a variety of methods of judging the outcome of the conflict – internal investigations and criminal investigations can both play roles in defining the way proportionality was applied- but that in choosing a method of evaluation it is important not to inflate proportionality to a disproportionate size. Ms. Jessica Montell, Executive Director of B’Tselem argued that transparency of internal military investigations was crucial given the subjective nature of proportionality determinations, the fluidity of the concepts of military advantage and civilian harm and the relative weight attached to each, the lack of public access to military intelligence – and the fact that in practice, the internal investigations have resulted in virtually no criminal charges or even administrative military charges being filed. Captain Jason Wright, Judge Advocate in the U.S. Army, sought to provide a definition of the word “excessive”. He considered a variety of American military policies with regards to deliberate targeting, counter-insurgency and proportionality, and argued that an appropriate standard of review is neither entirely subjective nor objective, but rather a hybrid approach of the two. Captain Wright proposed a two-part hybrid test involving the evaluations of the military advantage and of expected collateral damage from subjective perspectives, which are then balanced against each other using an objective standard.
By studying the contents of the principle of proportionality under both jus ad bellum and jus in bello, the 3-day conference made an important contribution to local and international scholarship and public debate on fundamental legal issues that are of enormous concern both to Israel specifically, as it struggles with the reality of extended and ever-changing armed conflict, and to the European and international communities at large.
This conference was the fifth in the series of annual KAS / Minerva / ICRC international conferences on international humanitarian law (IHL) and was attended by a large audience, attracted by the importance and the relevance of the conference theme. In the public one could find many students, teaching staff from several Israeli universities, prominent lawyers and judges as well as members of the Israeli Defense Forces and the Ministry of Justice. Speakers and audience members alike praised the high level of the presentations and discussion sessions throughout the conference, which contributed to the development of law and scholarship in this crucial field of international law.