Principle of Proportionality in IL

The principle of distinction was coined in the St. Petersburg Declaration of 1868 and then codified into international law in Article 44(3) and Article 48 51(2) 52(2) of the 1977 Additional Protocol I to the Geneva Conventions. Pertinent to the fact that armed conflict is not a free-for-all, this means that not everything and everyone is a target in armed conflict under international humanitarian law (IHL)–this core principle of IHL, i.e., the principle of distinction, demands that all parties involved in armed conflict distinguish themselves and others from civilians and combatants and between military objectives and civilian objects. Fundamentally, military objectives and combatants can be deliberately targeted in armed conflict, while, notably, civilians and civilian objects can, at no point in time, anywhere, ever, be deliberately targeted in armed conflict (American Red Cross). As earlier mentioned, the principle of distinction is mentioned in Article 44. It states that in order to promote the protection of the civilian population from the effects of hostilities manifested by armed conflict, combatants are obligated to distinguish themselves from the civilian population at any point in time and anywhere they are engaged in a military attack or any other military operation peremptory to a military attack. Additionally, Article 48 states that the principle of distinction demands that in order to ensure respect for and protection of the civilian population and civilian objects, all parties involved in armed conflict should at all times, without any exception, distinguish between the civilian population and combatants and between civilian objects and military objectives when carrying out their own military objectives, principally, in carrying out the military objective, operations shall only be directed against other military objectives (combatants included) (American Red Cross). To be clear, two aspects are enshrined within the principle of distinction; the first is that combatants are required to distinguish themselves from the civilian population. Therefore, they must take steps to separate themselves, e.g., combatants can distinguish themselves from civilians through the act of wearing a uniform or through the act of wearing a distinctive emblem that can be seen from a distance by the enemy, as to ensure the enemy will not confuse the civilian population with being combatants. In addition to this, military objectives, e.g., radar stations or anti-aircraft guns, shall never be located deliberately or unintentionally close to civilian objects (schools and hospitals) as the act of placing military objectives close to civilian objects forces the enemy to choose between an attack on the military objective that results in the preventable deaths of civilians or refraining from the attack and thereby losing the gains that would have been made by fulfilling the mission in order to safeguard civilian life (American Red Cross). The second aspect requires that before an attack is conducted, all parties must distinguish between combatants and civilians and civilian objects and military objects. This means all parties must take reasonable steps to ensure that their weapons and tactics to fulfill their military objective are directed only at military objects (combatants included). To articulate this, let us look at what violates the principle of distinction; a perfect example is landmines. Landmines are placed under the ground, and consequently, anyone who steps on the landmine becomes a target of that landmine regardless of whether they are a combatant or a civilian. This is clearly indiscriminate by nature, as there is no way to target a landmine toward combatants only or to be sure that the landmine will only harm combatants (not civilians)–thus making landmines a clear violation of the principle of distinction and, subsequently, IHL (American Red Cross). To be clear, the principle of distinction does not make the deaths of civilian lives illegal under IHL. Fundamentally, within any and every armed conflict, there is the expectation that the loss of civilian life will occur as collateral damage is a byproduct of armed conflict. At the heart of the principle of distinction, its principle is that it does not seek to stop all loss of civilian life. Instead, it aims to protect the civilian population amid armed conflict by limiting the effects of armed conflict on civilians (American Red Cross). Moving on, the principle of proportionality, like the principle of distinction, restricts the way in which armed conflict can be fought. The principle of proportionality requires that before an attack can occur, the military commander must weigh the anticipated harm to the civilian population with the military advantage gained from the carried-out military objective. What proportionality gives us is the compass for when to carry out an attack and for when not to carry out an attack, to be clear, if the anticipated harm of the attack to the civilian population were to be excessive in relation to the military advantage of the attack, a commander would violate the principle of proportionality and subsequently IHL if they were to commence the attack. This principle stems back to the 17th century when an international lawyer named Hugo Grotius expanded the definition of proportionality to be that “[O]ne must take care, so far as is possible, to prevent the death of innocent persons, even by accident.” Additionally, in 1863, a professor named Francis Lieber defined proportionality to be that, “Commanders should, whenever admissible, inform the enemy of their intention to bombard a place, so noncombatants, and especially the women and children may be removed before the bombardment commences.” Both of these definitions catalyzed our understanding of proportionality today, but it wasn’t until 1977 that the principle of proportionality was codified into IHL with the additional protocol 1 to the Geneva Conventions of 1949 (American Red Cross). In the additional protocol, Article 51 states that an attack should not be conducted if it is a possibility that the attack will incur the incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination of all, as these represent possible excessive uses of force in relation to the anticipated concrete and directed military advantages to be gained. There are four pertinent variables to note here. The first is that proportionality only considers the attack's impact on civilian life and objects (no consideration of the effect on combatants and military objectives needs to be considered). Commanders must take the necessary steps to ask themselves before they launch an offensive or defensive attack on an enemy whether or not the anticipated impact on civilians will be evenly balanced against the expected military advantage(s) of the mission. In other words, will the loss of civilian life be excessive? Notably, the principle of proportionality does not make it illegal to cause the death of civilians, as we know that is an expected and known byproduct of armed conflict, and in addition, it is not enough for the anticipated civilian casualties to simply outweigh the expected benefits of commencing the mission, the loss of civilian life must be excessive in comparison to the benefits of the military objective to be a violation of the principle of proportionality and thus IHL. Third, the proportionality measurement is not a precise measurement, meaning there is no clear right or wrong answer; it is simply a compass, i.e., the commander, before an attack, must use their best judgment, with all the information accessible to them at the exact moment, and weigh the military gains with the casualties of civilian life, and then determine if the attack is excessive or not. Lastly, in the aftermath of the attack, when the principle is examined and accessed to be in line with the principle or a breach (of the principle), the attack is investigated by using the standard of what a reasonable commander would have done, with only the known circumstances and information reasonably accessible and known at the time the decision is commenced–it would be unfair to judge a commander based on the perfect information known in the attack's aftermath (American Red Cross). An example of the use of the principle of proportionality in action would be to imagine a scenario where country A is deciding whether or not to bomb an apartment building in country B. Reasoning for this proposed military objective is that there are three of country B’s top nuclear scientists having a meeting in the apartment building. These nuclear scientists are not civilians; the government employs them, and they are members of the military; in the armed conflict scenario, these are legitimate targets because they are military nuclear scientists. The commander of country A predicts that 30 civilian deaths will occur if he sanctions the attack. Using the principle of proportionality, what is your assessment here? Moreover, a leading factor driving the commander’s decision to authorize the attack is that if the three nuclear scientists are to live, there is the possibility they will go on to make nuclear bombs. The possibility of country B using nuclear bombs in armed conflict is too big of a risk in the threat assessment. Therefore, the commander asks themself if the benefit of the military objective is proportional to the death of the civilians or if the act is excessive. The commander finds in their assessment that the lives at risk of allowing the commanders to live are too catastrophic, and therefore, the lives saved by carrying out the attack exceeds the collateral damage of the attack, i.e., the military objective and the civilian causalities are proportional. This is a relatively straightforward example to assess what is the right or wrong action here, but it is essential to understand that not all scenarios are this easy, and in fact, mostly all of the decisions that commanders have to make regarding proportionality do so with incomplete and imperfect information. This is no perfect solution to the horrors of armed conflict, but what IHL does here is force a little bit more humanity into the calculations behind the decisions made in armed conflict (American Red Cross). Furthermore, lastly, you ask for the principle of supremacism to be explained, and I will keep this short: the principle of supremacism is that of which one group of people holds the belief of superiority of their group and asserts that any other group, either or the basis of race, religion, nationality, ethnicity, sexual orientation, language, social class, culture, etc. are inferior and by no means equal to that of the superior group. However, I worry that that is not what you meant. You were possibly referring to the supremacy clause outlined in Article Six of the U.S. Constitution, and so I will briefly explain that as well. Article Six states that, in general, federal law will take precedence over state laws and state constitutions. Essentially, anything found to conflict with the state, meaning state law says something different than federal law, federal law will prevail in this conflict between state and federal powers–the federal constitution reigns supreme through the land, if you will.