Bello Proportionality Research Articles

Is All Mental Harm Equal? The Importance of Discussing Civilian War Trauma from a Socio-Economic Legal Framework’s Perspective

Abstract In recent years, international law scholars have discussed how civilian mental harm in warfare should also form part of the jus in bello proportionality principle and be balanced to the anticipated military advantage. Yet, these scholars have not proceeded one step further to examine whether socio-economic parameters shaping the individual’s personality, such as education, family ties or the level of income, should be also taken into account as varying variables in this balancing task. This is particularly important given that the particular parameters are tied to the socio-economics rights discourse and the relevant minimal living standards notion developed there. Based on a study we conducted, the article explores whether civilian mental harm should be affected by socio-economic parameters and what this means for the wider role socio-economic rights can play in armed conflicts as well as for the reading of jus in bello along Marxist terms.

Can Just Wars Be Fought Proportionately? A Critique of In Bello Proportionality

ABSTRACT Proportionality has long been considered a pillar of just war theory, requiring that the goods achieved in an action outweigh the collateral harms it causes. In this article, I argue that the in bello principle of proportionality cannot serve its intended function of limiting the destructiveness of actions during war. I illustrate the features of war that make the in bello proportionality constraint not merely impossible to follow, but perhaps even self-defeating. I conclude by suggesting ways in which theorists and policymakers concerned with justice in war might attempt to respond to this dilemma.

In Bello Proportionality: Philosophical Reflections on a Disturbing Empirical Study

ABSTRACT A recent empirical study has argued that experts in the ethics or the law of war cannot reach reasonable convergence on dilemmas regarding the number of civilian casualties who may be killed as a side effect of attacks on legitimate military targets. This article explores the philosophical implications of that study. We argue that the wide disagreement between experts on what in bello proportionality means in practice casts serious doubt on their ability to provide practical real-life guidance. We then suggest viewing in bello proportionality through the prism of virtue ethics.

Rethinking the Criterion for Assessing Cia-targeted Killings: Drones, Proportionality and Jus Ad Vim

According to US government statements, drones succeed in killing terrorists while minimizing the risk to noncombatants, thus suggesting that they satisfy the jus in bello proportionality criterion. Scholars, however, are divided on whether drones are truly proportionate. What does it really mean to say drones are, or are not, proportionate? How are we to judge the proportionality of the CIA's drone program? We expose the fallacy of drone proponents who claim they are proportionate by repudiating what we call proportionality relativism – the use of impertinent comparisons to argue that drones are proportionate because they cause less collateral damage than other uses of force. We then analyze the existing data on drone strikes to expose problematic differences in how the US military and the CIA understand proportionality balancing. Finally, we employ what Walzer calls the category of jus ad vim – the just use of force short of war – to assess the ethics of drones. Jus ad vim demands a stricter relationship between the use of force short of war and the jus in bello principles of proportionality and discrimination, as well as human rights concerns of civilians not usually considered in the proportionality calculus, that severely restricts the scope of proportionality balancing. Assessing the CIA's use of drones in Pakistan according to this standard casts a dark shadow on claims that CIA drones are proportional.

‘Excessive’ ambiguity: analysing and refining the proportionality standard

AbstractThis article analyses the jus in bello proportionality standard under international humanitarian law to assist judge advocates and practitioners in achieving a measure of clarity as to what constitutes ‘excessive’ collateral damage when planning or executing an attack on a legitimate military objective when incidental harm to civilians is expected. Applying international humanitarian law, the author analyses existing US practice to evidence the need for states to adopt further institutional mechanisms and methodologies to clarify targeting principles and proportionality assessments. A subjective-objective standard for determining ‘excessive’ collateral damage is proposed, along with a seven-step targeting methodology that is readily applicable to the US, and all other state and non-state actors engaged in the conduct of hostilities.

Efficiency in Bello and ad Bellum: Targeted Killing Through Drone Warfare

A peculiar feature of the targeted killing using drone technology debate is that it appears to set up a tension between the two traditional categories of the law and ethics of war, jus in bello and jus ad bellum. The more targeted killing technologies allow more precise targeting and reducing collateral casualties and harm (jus in bello), and that moreover at less personal risk to the drone user’s forces, perhaps the less inhibition that party has in resorting to force (jus ad bellum). A strong version of this claim says: The perverse effect of increasing the efficiency of jus in bello through targeted killing (reducing civilian harm and increasing military effectiveness) is to reduce the efficiency of jus ad bellum (making the resort to force too easy). Improvements in jus in bello conduct ironically makes it too easy, too unconstrained (by lack of personal risk to one’s forces because of drones and lowered civilian harm because of improved targeting) to resort to force. This paper evaluates this claim, and more broadly the idea that jus in bello proportionality and jus ad bellum resort to force can each have a form of efficiency. It rejects the claim as incoherent, because the existence of sides in conflict results in incommensurable meanings of winning and losing in jus ad bellum, without which there cannot be an “optimal” level of the resort to force. The conceptual claim depends upon highly fact specific assumptions about the practice of targeted killing and drone warfare today. The essay walks through a number of these assumptions in an informal way, drawing upon the author’s discussions with governmental and non-governmental actors, particularly on the question of civilian casualties, and ways in which some of the anxieties over targeted killing and drone technologies might not reflect current practices. These assumptions are ones that the reader might or might not accept, given that they are not corroborated and reflect interviews, informal, and off the record discussions that are far from conclusive. Even if the reader does not share the premises in fact, the essay invites accepting them for purposes of evaluating the ethical argument. The essay intertwines an abstract argument about efficiency in the ethics of war, and a practical part that discusses premises crucial to that abstract argument. (This is working paper v3 of 3. It runs approximately 12,000 words; it is lightly footnoted, rather than law review footnoted, intended for an academic philosophy forum.) (Note: This working paper has been superseded by a final published paper of the same title, which heavily revises this working draft. The finalized, accepted paper version can also be found at ssrn and should be regarded as the final version of the paper. Because the working paper has been extensively downloaded and cited, however, it is being left up here on ssrn. For the final accepted paper version, please see http://ssrn.com/abstract=2343955.)

OPERATION ‘CAST LEAD’: JUS IN BELLO PROPORTIONALITY

This article presents an analysis of the role and content of proportionality under contemporary international humanitarian law governing the means and methods of warfare (jus in bello) and is designed to present a legal analysis of proportionality to help provide a context for state practice. The events of Operation ‘Cast Lead’ and the reactions of the international community may be instrumental in determining the role assigned to proportionality in the context of armed conflicts. A study on jus in bello proportionality with reference to Operation ‘Cast Lead’ offers a contribution to a further development of the concept of proportionality and to resolving some of its controversial issues concerning its role and content in order to improve the current compliance of the principle.

THE APPLICATION OF IHL IN THE GOLDSTONE REPORT: A CRITICAL COMMENTARY

AbstractOperation Cast Lead, the Israeli military operation in Gaza that began on December 27, 2008, demonstrated anew the challenges international humanitarian law faces in contemporary conflict. The Goldstone Report presented an opportunity to examine critically how the law applies in complicated modern warfare and how the law might be used to solve difficult problems such conflict poses.This article analyzes the Goldstone Report's application of the law to the conduct of both parties in the conflict to examine how it applies and interprets the legal standards within the framework of the Gaza conflict. In particular, the article focuses on two main shortcomings in the Goldstone Report's application of IHL: areas in which the report could have benefitted from a greater sensitivity to the complexities of modern warfare, and areas in which its approach is questionable as a matter of law.First, the article highlights the report's flawed examination of the challenges posed by contemporary conflicts in two fundamental areas of IHL: distinction and military objectives. Both require that military commanders and soldiers understand who is a civilian and who is a fighter or combatant, and which targets are military targets and which are civilian objects. Without a thorough and sophisticated understanding of how to make these determinations, military commanders, soldiers and policy makers will face grave difficulty in planning and carrying out military operations within the bounds of the law. The challenges presented in Operation Cast Lead are emblematic of some of the most difficult dilemmas modern warfare poses.Second, the article highlights several areas in which the Goldstone Report's application of IHL is questionable, either because it uses the incorrect legal standard or because it applies the wrong law when more than one body of law applies. The report errs twice in its treatment of the principle of proportionality, first by approaching jus in bello proportionality retrospectively rather than prospectively, and second by conflating jus ad bellum proportionality with jus in bello proportionality. Additional problems arise in its analysis of the law governing precautions in attack and the treatment of prisoners of war, and its assessment of responsibility for specific crimes, including attacks on civilians, destruction of property and hostage taking.

THE WAR CONVENTION AND THE MORAL DIVISION OF LABOUR

My claim is that despite powerful arguments to the contrary, a coherent moral distinction between the jus in bello code and the jus ad bellum code can be sustained. In particular, I defend the traditional just war doctrine according to which the independence between the in bello and ad bellum codes reflects the moral equality between just and unjust combatants and between just and unjust non-combatants. In order to establish this, I construe an in bello proportionality condition which can be satisfied by just and unjust combatants alike.

Sul principio di proporzionalitŕ a Gaza, ovvero quando il fine non giustifica i mezzi

- The Operation Cast Lead launched by Israel in the Gaza Strip on December 27, 2008 has attracted strong condemnation by the international community for its disproportionate character. While there is no doubt that the conduct of the conflict by Hamas was in breach of the principle of proportionality, the evaluation of the military operations carried out by Israel in light of that principle is more complex. As we have attempted to show, the assessment of proportionality in contexts similar to those of the Gaza Strip has to be conducted both in a ius ad bellum and ius in bello perspective, the two approaches being so interconnected as to make the violation of the in bello proportionality foreseeable. However, this prima facie finding has to be tested against the assessment of proportionality conducted for each relevant incident - an exercise that can be made only when all relevant information is available.

Proportionality and Just War

Despite its preeminent position in the just war tradition, the concept of proportionality is not well understood by military leaders. Especially lacking is a realization that there are four distinct types of proportionality. In determining whether a particular resort to war is just, national leaders must consider the proportionality of the conflict, i.e., balance the expected gain or just redress against the total harm likely to be inflicted by the impending armed action. This proportionality consideration is called jus ad bellum proportionality. The second type of proportionality discussed is a continuing re-evaluation of the proportionality, taking into account the changing situation. The last true proportionality discussed is a consideration of hostile action taking during a conflict, or jus in bello proportionality. This consideration weighs the expected military gain of a particular action against the collateral damage and injuries that are expected from the act. Finally, the fourth category addressed is ‘political proportionality’, which is not a true proportionality consideration, but is rather self-interested deliberation on the possible political and military outcomes of actions. In some instances, it could be referred to as a measured response. A better understanding of proportionality in all its forms will help military leaders to give appropriate and moral advice on the potential resort to war, as well as on the conduct of military actions in war. The recent US war with Iraq in the spring of 2003 in defiance of the wishes of the majority of the UN Security Council, and especially with the potential for high noncombatant casualties in Baghdad, makes a discussion of the proper conduct of war even more poignant.