Case Briefs and War

Proportionality in War The principle of proportionality in war is something that is hotly contested and debated. How the principle could and should apply in terms of response to military action or aggression, the incidence or possibility of civilian casualties and other things are all considerations when it comes to proportionality in war. In general terms, the argument to be made is that there should be consistence between a strike and a counterstrike. Obviously, the idea is to win whatever conflict is at hand.

However, there are limits to this approach. For example, responding to a cruise missile strike with a nuclear strike is obviously not going to fly. However, there are some times where proportionality is clouded and made difficult to figure out. At the very least, it can be controversial. The dual nuclear strike on Japan during World War II is one example. The manner in which the often-stateless armies of today unapologetically use civilians as human shields and otherwise ignore the commonly held laws of war is another.

Regardless of what side one happens to come down on in the modern age, it is clear that while the rules may not have changed in the eyes of many, the playing field and how certain people are playing has certainly changed. This means that it should perhaps be considered whether the traditional rules should apply and/or whether there should be more of a focus on winning via any reasonable means rather than worrying about proportionality and fairness.

Even with any expansion of guidelines and rules when it comes to war, the usual rules about avoiding civilian casualties and not using nuclear in any instance unless someone else strikes first would generally hold.

Even so, the fact that that the rules of engagement and war are often ignored by today's fighters and rogue regimes is something that cannot be ignored and there is the suggestion by many that while devolving to their level of depravity is not acceptable, staying with the honorable and traditional rules is not a good idea either given how soulless the other side can often be.

Analysis Even with the fact that the landscape and paradigm of war and how it could or should be waged is changing, it is important to consult all relevant and applicable sources. Of course, one of the "gold standard" sources when it comes to the rules, expectations and laws of war is the Geneva Convention and its associated guidelines. One part of the Geneva rules set that is important to know about and cite when it comes to this topic is Article 51.

That is the section that refers to the protection of the civilian population. The rules about that subject are pretty basic. It is noted that they shall "enjoy general protection against dangers arising from military operations". Further, they are "not to be the object of the attack. Lastly, there is the idea that indiscriminate attacks where civilians are caught up in the conflagration are not allowed [footnoteRef:1]. Article 57 of that same convention is relevant and has similar rules.

Indeed, the first item in that section says that "in the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects". Of course, that mean avoiding the killing and harming of civilians, their homes and their other property whenever possible [footnoteRef:2]. These parts of the law were passed in the 1970's.

A good and obvious example where a military action that happened would not be allowed for under this part of the law would be the dual nuclear bombs that were levied against Hiroshima and Nagasaki. Those two bombings were clearly civilian rather than military in nature and they were also surely indiscriminate in nature. As such, those bombings would have violated both of those parts of the Geneva conventions. [1: ICRC. 2017.

"Treaties, States Parties, And Commentaries - Additional Protocol (I) To The Geneva Conventions, 1977 - 51 - Protection Of The Civilian Population." Ihl-Databases.Icrc.Org. https://ihl-databases.icrc.org/ihl/WebART/470-750065.] [2: ICRC. 2017. "Treaties, States Parties, And Commentaries - Additional Protocol (I) To The Geneva Conventions, 1977 - 57 - Precautions In Attack." Ihl-Databases.Icrc.Org. https://ihl-databases.icrc.org/ihl/WebART/470-750073?OpenDocument.] Another set of rules and guidelines that is commonly cited and pointed to actually refers specifically to the subject of bombing and that would be the ICTY NATO bombing report.

There was actually a section, starting with paragraph 48, from that report that specifically pertains to proportionality and bombing, of course, is the main focus of the same. The verbiage of the section makes a good amount of sense and includes the phrase "it is relatively simple to state that there must be an acceptable relation between the destructive effect and undesirable collateral effects".

The section goes on to use the example of a refugee camp and states that the bombing of such a camp would not be allowed for and that would hold true even if the people in the camp were "knitting socks for soldiers". On the other hand, they note that bombing an ammunition dump would be allowed for and this would remain true even if there was a farmer that happened to be plowing in the area and was caught up as a civilian casualty as a result.

Indeed, since the target of the bombing was hence legitimate and since it is unlikely that the people ordering the bombing knew the farmer was nearby, the bombing would be allowed for under NATO guidelines. That being stated, there is the concession that valuing a military target or military resources is easy enough but doing the same with human life that is lost or affected due to a bombing or other war action is not nearly as easy [footnoteRef:3]. [3: ICTY. 2017. "Press | International Criminal Tribunal For The Former Yugoslavia." Icty.Org.

http://www.icty.org/en/press/final-report-prosecutor-committee-established-review-nato-bombing-campaign-against-federal#IVA64d.] The NATO rules section in question goes on to discuss the matter of proportionality at further length. First, it notes that it has to be asked what the "relative value" is when it comes to the military advantage that is gained by the potential injury to non-combatants and/or the damage to civilian objects as a result of a strike.

Indeed, even if a military- or war-related target is of high value, that can easily be negated by the fact that it is in the middle of a bunch of civilians such as around houses, busy roads or a marketplace. Of course, the location of that target may be among civilians by design with the express purpose of avoiding a military strike on those grounds.

Even so, there is the question of what is included when "totaling your sums" and what the "standard of measurement" happens to be when it comes to deciding whether the target should be attacked or left alone. There is also the question of whether and to what extent that the attacking force will expose his own people to danger as part of going after the target in a way that limits or at least mitigates civilian casualties [footnoteRef:4].

Perhaps a good and more modern example of this would be the city of Fallujah in the aftermath of the fall of Saddam Hussein. There is no doubt that the city was full of combatants and other problems. As such, many might suggest that the city should just be destroyed completely so as to preserve human life for enemies of the combatants and protect the people that they would kill.

However, the loss of civilian life would be rather huge if that was done and it would destroy the homes and property or the people that lived there. As such, the American and other soldiers involved ended up going door-to-door so as to only destroy and harm the items and things that were related to the armed resistance and not the civilians or their property. [4: ICTY. 2017. "Press | International Criminal Tribunal For The Former Yugoslavia." Icty.Org.

http://www.icty.org/en/press/final-report-prosecutor-committee-established-review-nato-bombing-campaign-against-federal#IVA64d.] As noted earlier in this report, there is the situation where locals and militants in an area will wage a war, on their own or in concert with a state, when it comes to armed conflict. The 2015 edition of the "War Manual" actually addresses a lot of this. Indeed, section 5 of that publication has subtopics such as civilians taking part in hostilities as well as the subject mentioned in this report, that being proportionality in conducting attacks.

The last of those is section 5.12 and that particular part is extensively referenced in the footnotes of the document. One interesting thing to note about proportionality in the American military context is that they specifically note that proportionality is only needed as a guidepost and reference point when there are civilians in question. Indeed, it says "In conducting attacks, the proportionality rule only need be applied when civilians or civilian objects are at risk of harm from attacks on military objectives.

It would not apply when civilians or civilian objects are not at risk". It then defines the harm that can be done in section 5.12.2 including loss of life, injury and damage. There are also "remote harms" and how they should not be considered as an issue.

The section also notes that when one side of the fight uses human shields, the party that is doing it (and them alone) are responsible for what ends up happening to the human shield if there is an otherwise legitimate military attack that ends up killing or maiming them. For example, if a strike is made on an Al Qaeda or ISIS base and a human shield is killed, the attacking party (e.g. the United States) would not be at fault if the human shield dies.

It would be the fault of ISIS or Al Qaeda so long as the military strike was legitimate [footnoteRef:5]. There are other concerns that have to be put into play such as torture of prisoners and what defines the same. Such was the subject of the General Security Service and the Supreme Court of Israel when it came to a case that arose in 1999 [footnoteRef:6]. Israel was also caught up in another case, that being Adalah v. GOC Central Command.

In that case, it was rule that the use of human shields was unlawful but that so was the use of "Early Warning". In that instance, it was the Palestinians that were bending the laws of war and using them against the Israeli Defense Force (IDF) and their operations against Arab militants and terrorists that were operating among civilians and their property [footnoteRef:7]. [5: "DEPARTMENT OF DEFENSE - LAW OF WAR MANUAL." 2017. US Department Of Defense. http://archive.defense.gov/pubs/Law-of-War-Manual-June-2015.pdf.] [6: Case Briefs. 2017. "Public Committee Against Torture V.

State Of Israel | Casebriefs." Casebriefs.Com. http://www.casebriefs.com/blog/law/criminal-law/criminal-law-keyed-to-kadish/exculpation/public-committee-against-torture-v-state-of-israel/.] [7: Hamoked. 2017. "HCJ 3799/02 - Adalah Et Al. V. GOC Central Command, IDF Judgment - Hamoked." Hamoked.Org.

http://www.hamoked.org/Document.aspx?dID=6853.] The Argument If there is one argument that could or should be made in response to the above, it would be that while there should be respect paid to proportionality and not crossing certain lines in war, those lines need to be remapped and redefined given the current context and prism of what war has become. In other words, the form and function of the Geneva Convention made great sense for the 1970's and the wars that came before it.

However, to say the same is true now is simply not true. So much has changed including why wars are fought, how they are fought, who is doing the fighting and the form and function of the parties that are involved with wars. There is the argument that common and official declarations of war are not made any more and that this should matter. However, there is so much more to it.

Whether it be torture, the use of human shields, the advanced use of propaganda within modern media and beyond, everything has changed and in significant ways. The author of this repot will make that point using more modern and complete scholarly sources and reports. When it comes to proportionality and the use of propaganda surrounding the same, many would tend to point to World War II or similar conflicts. However, there have been much more modern uses of propaganda and within more modern conflicts.

Beyond that, they obviously and completely relate to the concept of proportionality. Indeed, many hearken to the losing of "hearts and minds" during Iraq and they point to the Cold War and other past wars as a related example even though the overall rules and guidelines have necessarily evolved [footnoteRef:8].

Others have suggested that propaganda has to be used as a way to fight and win the war in areas like Iraq given what has changed and evolved with the modern media, the way wars are now fought and all while still staying within the concept of proportionality [footnoteRef:9]. [8: Franzen, Johan. 2010. "Losing hearts and minds in Iraq: Britain, Cold War propaganda and the challenge of communism, 1945-58." Historical Research 83, no. 222: 747-762. Academic Search Premier, EBSCOhost (accessed May 5, 2017).] [9: Schleifer, Ron. 2005.

"Reconstructing Iraq: Winning the Propaganda War in Iraq." Middle East Quarterly 12, no. 3: 1-10. Academic Search Premier, EBSCOhost (accessed May 5, 2017).] Perhaps one of the more vexing developments in modern war that cannot really be explained by the author is the melding of the traditional civil and criminal justice systems and the art of war. There was a time where those were entirely separate things but now it is common to see torts and criminal charges emerge from a war-related situation.

This has absolutely happened in the last decade and there are examples that specifically include proportionality [footnoteRef:10]. As might be expected, the more localized and nationalist approach taken by the United States Department of Defense is being mirrored and copied in terms of form by countries that issue their own rules and regulations that are different than or at least in addition to the Geneva and NATO rules mentioned earlier [footnoteRef:11].

This further proves the point that a new and revised international standard is sorely needed due to the dated nature of the NATO and Geneva rules as well as the International Court of Justice. [10: Brown, Davis. 2011. "PROPORTIONALITY IN MODERN JUST WAR THEORY: A TORT-BASED APPROACH." Journal Of Military Ethics 10, no. 3: 213-229. Academic Search Premier, EBSCOhost (accessed May 5, 2017).] [11: Khalidi, Rashid I. 2014. "THE DAHIYA DOCTRINE, PROPORTIONALITY, AND WAR CRIMES." Journal Of Palestine Studies 44, no. 1: 5-13.

Academic Search Premier, EBSCOhost (accessed May 5, 2017).] Indeed, there should perhaps be a different and separate standard for how to deal with proportionality and such when it comes to global terrorism. After all, having the same precise rules for fighting another nation state and fighting a terror group that ignores the typical rules is perhaps a little silly and obtuse given the clear differences of ethics and honor [footnoteRef:12]. A real-world conflict that proves this and more is the recent Second Lebanon War and the perceived need to avoid lethal warfare.

This is, of course, only needed because of the rampant inter-mixing between civilians and military targets and what defines a "soldier" in such a conflict [footnoteRef:13]. Even with all of the good faith in the world, there will be the concepts of what is known as "fog of war" and there also certainly be a disagreement on what is "sensible". The fog of war is a term that is commonly associated with Robert McNamara and his exploits during the firebombing of Tokyo.

However, the definition takes on new meaning when speaking of modern conflicts [footnoteRef:14]. [12: Gardam, Judith G. 2005. "A Role for Proportionality in the War on Terror." Nordic Journal Of International Law 74, no. 1: 3-25. Business Source Premier, EBSCOhost (accessed May 5, 2017).] [13: Gross, Michael L. 2008. "The Second Lebanon War: The Question of Proportionality and the Prospect of Non-Lethal Warfare." Journal Of Military Ethics 7, no. 1: 1-22. Academic Search Premier, EBSCOhost (accessed May 5, 2017).] [14: May, Larry. 2013. "Jus Post Bellum Proportionality and the Fog of War." European Journal Of International Law 24, no. 1: 315-333.

Academic Search Premier, EBSCOhost (accessed May 5, 2017).] Another reason that the traditional laws and rules of war, and this includes proportionality, is the idea that many combatants in war nowadays are not really interested in peace. For example, the very idea of negotiating a peace treaty with a group like Al Qaeda or ISIS is almost complete folly.

Those two groups are not nation states but some could argue that Hezbollah in Lebanon and especially Hamas in Palestinian territories are examples of groups that are not interested in treaties, peace or getting along with their adversaries [footnoteRef:15]. Another part of war that has greatly evolved and morphed is the right of goods, what the rights of the people are and so forth. Indeed, even scholars note that keeping up the "Just War" tradition and guideline is hard given the modern facts and issues that exist.

There is even the argument that waging war in the first place is something that is "morally forbidden" [footnoteRef:16]. [15: Ganor, Boaz. 2013. "Israel and Hamas: Is War Imminent?." Orbis 57, no. 1: 120-134. Academic Search Premier, EBSCOhost (accessed May 5, 2017).] [16: Eberle, Christopher J. 2016. "Rights, Goods, and Proportionate War." Monist 99, no. 1: 70. MasterFILE Premier, EBSCOhost (accessed May 5, 2017).] The last source touches upon a major related arc of thought that is highly related to the proportionality of war and that would be a "just war".

Just as the concept of proportionality has had to evolve, the same is true when it comes to what a "just war" is. The war on global terror is obviously an example of that but there are other veins of thought that have come into the discussion. Just one example is surveillance. Gone, obviously, are the days of things like "eye for an eye" in many instances. This is true just because "lowering" one's self to the level of their adversary is seen as a bridge too far.

Even the review and watching of such adversaries is seen as crossing ethical lines if the privacy and other behaviors of the people around the surveilled is excessive [footnoteRef:17]. As partially touched upon, the concept of "just" or "justice" is going to vary a lot based on who is speaking about it. It is the concept of "freedom fighter" vs. "terrorist" run amok. No matter how zealous one or more sides in a conflagration happen to be, the definitions and forms of "just war" is just too malleable.

Perhaps it is to the point where no international body could come up with a definition of "just war" or "proportionality" with all of the sides being accepting of the revised definition. However, it should be at least tried.