Understanding the law of "proportionality” in armed conflict
Imagine a soldier aiming a cannon. Their target: an enemy bunker. But there's a school right next door. The principle of proportionality in international law asks this question: is firing that cannon worth the risk of hurting kids?
Proportionality is a fancy way of saying, "Don't use more force than you need." In war, it means military actions should be balanced. The goal is to achieve a military advantage, but not at the terrible cost of harming too many civilians or destroying civilian infrastructure.
Think of it like a scale. On one side, you have the military objective – like taking out that enemy bunker. On the other hand, you have the potential for civilian harm – the school kids who might get hurt. Proportionality says the "military objective" side can't outweigh the "civilian harm" side by too much.
Before firing the cannon, the soldier (or their commander) needs to consider a few things:
Is it the right target? Only things used for war, like enemy soldiers or bases, are fair game. Schools and hospitals are off-limits.
How many civilians might get hurt? The soldier can't just fire and hope for the best. They need to try to estimate how many people might get caught in the blast.
Are there better options? Maybe a smaller weapon or a more precise attack could take out the bunker without risking the school.
Proportionality is a core principle in international humanitarian law, particularly in the Geneva Conventions, which regulate the conduct of armed conflict. The aim is to limit the effects of armed conflict on civilians and civilian objects. According to these laws, even with a clear military objective, the harm caused to civilians and civilian property must not exceed the anticipated direct military advantage.
While critical in war, proportionality also applies in other situations. Consider the police chasing a robber. They can't use a bazooka, right? They must use the least force necessary to catch the criminal.
War is messy, and figuring out how much harm is "too much" can be tricky. Sometimes, even with good intentions, civilians get hurt. However, the principle of proportionality is still essential because it encourages everyone involved to think twice before using excessive force.
The purpose of proportionality is to help make war a little less awful and to remind everyone that even during conflict, there are rules to follow and innocent people to protect. It's a way of saying that even in war, there are lines that shouldn't be crossed. Proportionality is like a fairness scale in war. It helps ensure military actions don't cause more harm to civilians than they need to. By adhering to this principle, nations and military forces strive to maintain a semblance of humanity and morality amid conflict.
Violating the international law of proportionality is supposed to have severe consequences for individuals and states. Individuals, including military commanders and political leaders, may be prosecuted for war crimes at the International Criminal Court (ICC) or under national jurisdictions. States responsible for such violations may face international sanctions, political condemnation, and economic penalties. They may also be required to pay reparations to victims and could suffer reputational damage, affecting military morale and recruitment. Additionally, violations can escalate conflicts, increase civilian casualties, and hinder humanitarian efforts. International bodies like the UN and NGOs often investigate and report on these violations, applying pressure for accountability and action.
However, in reality, despite investigations, accusations, and International Criminal Court arrest warrants, very few governments or groups have been held accountable for violating the principle of proportionality in international law. An exception is the prosecution of leaders and military commanders from the former Yugoslavia in the 1990s, including Serbian President Slobodan Milošević and Bosnian Serb leaders Radovan Karadžić and Ratko Mladić, who were prosecuted for war crimes, including disproportionate attacks against civilians.
However, the law of proportionality in international conflicts is subjective. It requires commanders to balance military advantage against potential civilian harm based on incomplete intelligence and varied interpretations. Dynamic battle conditions and cultural differences further complicate its application, posing challenges to achieving consistency and objectivity.
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What about the crime of building a bunker next to a school? Or building a headquarters under a hospital? Or storing weapons IN a school? Not to mention hiding your combatants inside of civilian areas and using human shields.
Those are clear, unequivocal violations of international law, yet the ICC has yet to charge any of the Hamas leaders. Law must be applied equally to all if it is to be respected. Thus, charging Israelis for the intentionally set up gray situations while ignoring the explicit crimes of Hamas makes the ICC a laughingstock.
There is a huge swath of the world that judges the Israelis on a PhD level while judging Hamas on a special education kindergarten level and consider their views balanced. I’m fine with holding the Israelis to a high standard, but you must then apply some standards to Hamas.