In the monthly "Ethical Inquiry" series, we examine ethical questions, highlighting a broad array of opinion from journalism, academia, and advocacy organizations. Our intent is to illuminate and explore the complexity of some of the most vexing ethical questions of our time.

Click here to explore the full "Ethical Inquiry" series.

Ethical Inquiry: October 2009


Proportionality in the context of armed conflict


On September 15, 2009, the United Nations Fact Finding Mission on the Gaza Conflict published its findings regarding the December 2008–January 2009 conflict. One of the fundamental themes of the report is proportionality in the context of armed conflict. The mission was controversial even before it was formed, and the publication of the Mission’s findings has sparked even more debate around the world.

We at the Ethics Center have watched this process with particular interest, given that the Mission was headed by Justice Richard Goldstone. A former justice of the Constitutional Court of South Africa and first chief prosecutor for the International Criminal Tribunals for the former Yugoslavia and Rwanda, Justice Goldstone is Chair of the Ethics Center’s International Advisory Board.

To provide some context to the Mission’s report, and to further explore a question that has been central to the inquiry process that Goldstone led, this issue of Ethical Inquiry is focused on the legal notion of proportionality.

 

What is proportionality?

The principle of proportionality in the conduct of war focuses attention on the extent of damage to civilian lives that is legally or morally justified in pursuit of military ends.  The principle acknowledges that harm to civilians is inevitable in wartime, but seeks to place responsibility on military and political leaders to justify any risk to civilians.

The Stanford Encyclopedia of Philosophy describes the relationship between risk and necessity thusly:
“Soldiers may only use force proportional to the end they seek. They must restrain their force to that amount appropriate to achieving their aim or target. Weapons of mass destruction, for example, are usually seen as being out of proportion to legitimate military ends.”

Legal background

The legal notion of proportionality has been established in various ways: customary international law, the Geneva Conventions, and judicial decisions.

Customary international law
Prof. Horst Fischer, Academic Director of the Institute for International Law of Peace and Armed Conflict at the Ruhr-Universität Bochum in Germany, and Adjunct Professor at Columbia University, writes in The Crimes of War Project
The principle of proportionality is embedded in almost every national legal system and underlies the international legal order. Its function in domestic law is to relate means to ends.…In the conduct of war, when a party commits a lawful attack against a military objective, the principle of proportionality also comes into play whenever there is collateral damage, that is, civilian casualties or damage to a nonmilitary objective…attacks are prohibited if they cause incidental loss of civilian life, injury to civilians, or damage to civilian objects that is excessive in relation to the anticipated concrete and direct military advantage of the attack. This creates a permanent obligation for military commanders to consider the results of the attack compared to the advantage anticipated.
The Council on Foreign Relations notes that “[r]egardless of whether states are party to [relevant treaties]…experts say the principle is part of what is known as customary international law. According to the doctrine, a state is legally allowed to unilaterally defend itself and right a wrong provided the response is proportional to the injury suffered. The response must also be immediate and necessary, refrain from targeting civilians, and require only enough force to reinstate the status quo ante.”

In “On Proportionality of Countermeasures in International Law” (American Journal of International Law, Vol. 102 No. 4, October 2008) [PDF] the late Thomas M. Franck, a leading scholar of international law, discussed the notion of proportionality and how it has been established.

The Geneva Conventions
The doctrine of proportionality originated with the 1907 Hague Conventions, and was codified by Article 49 of the International Law Commission's 1980 Draft Articles on State Responsibility [PDF], which lays out “Object and limits of countermeasures.”

The issue is addressed most directly in Additional Protocol 1 of the Geneva Conventions (1977). Article 35 specifies that “In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited,” and that  “It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.” Article 48 lays out the obligation for parties to a conflict to “distinguish between the civilian population and combatants and between civilian objects and military objectives and…direct their operations only against military objectives.” Article 51 further details obligations with regard to “Protection of the civilian population.”

For more, see an overview and the full text of the Geneva Conventions.

Judicial Decisions
Proportionality has been discussed and litigated in many cases prior to the 2008-09 conflict in Gaza. Two examples:

Nicaragua v. United States (1986)
The 1986 International Court of Justice decision in Nicaragua v. United States has become a key case for understanding proportionality. In question were actions taken by the Contras with the support of the United States. The decision notes, “For United States measures in collective self-defence to be lawful, they must be necessary and proportionate.” The Court wrote that “…appraising the United States activity in relation to the criteria of necessity and proportionality, the Court cannot find that the activities in question were undertaken in the light of necessity, and finds that some of them cannot be regarded as satisfying the criterion of proportionality.” See page 17 of the judgement of the court [PDF] for more about the U.S. and proportionality in this case.

Democratic Republic of Congo v. Uganda (2005)
In 2005, the International Court of Justice also made use of proportionality in deciding Democratic Republic of Congo v. Uganda. The Democratic Republic of Congo (DRC) complained of the presence of Ugandan armed forces in its territory, but Uganda claimed that the forces were necessary to disrupt safe havens within the DRC for a militia seeking to destabilize Uganda. Referring to the Nicaragua decision, the ICJ ruled that the use of force was not necessary relative to the threat posed by the DRC, and that "Uganda did not meet the standard of necessity and proportionality from 1 September 1998 onwards and thus violated the principle of the non-use of force."


Other recent armed conflicts in which proportionality has been at issue

 
NATO Bombing of Kosovo: “Operation Allied Force” (March-June 1999)

In “Targeting and Proportionality during the NATO Bombing Campaign against Yugoslavia” (European Journal of International Law, 2001) [PDF] W.J. Fenrick investigates whether the NATO bombing of Yugoslavia, or Operation Allied Force, met the standards of proportionality by analyzing the efforts made by NATO to minimize harms to civilians, touching on the role proportionality has on humanitarian interventions.

Conflict in Sri Lanka between the Government and the Tamil Tigers (1976-2009)

More than 25 years of violent conflict between the government of Sri Lanka and a nationalist movement informally known as the “Tamil Tigers” ended earlier in 2009, when government forces overran the last of the Tamil strongholds in the north and east of the island nation.

Over a quarter of a century, much civilian blood was spilled by both sides, but attention in the final months of the war focused on the actions of the victorious government forces as they closed in on the rebels. Critics of the government claimed that the extent of civilian casualties in this final push was unnecessary and therefore unjustified. But supporters of the government could advance the argument that while these deaths were regrettable, the military victory was proportional because more civilian lives would be saved in the long run.  

The UN Secretary General released a statement on September 9, 2008 expressing concern that Sri Lanka should follow its proportionality obligations. The Sri Lankan Peace Secretariat argued in response that there has been very little collateral damage in the conflict, and contended that questioning the use of force by the Sri Lankan government only further exacerbates violence by providing propaganda to the Tamil Tigers, whom the government considered to be terrorists.

The German newspaper Welt reported in January 2009 that the International Committee of the Red Cross was announcing a humanitarian crisis in Sri Lanka, with Jacques de Maio, ICRC head of operations for South Asia, stating that “Much of the fighting has been ‘intrinsically incompatible with full respect of the basic rules of the law of war,’” including the protection of civilians, precaution, distinction between civilian and military structures, and proportionality.

Sri Lanka News First vigorously defended the actions of the Sri Lankan government in an article contending that its acts are justified by military necessity while fighting a terrorist force.

Human Rights Watch detailed concerns for civilian safety in the conflict, focusing on the Sri Lankan governments’ actions, in a February 3, 2009 report, “Sri Lanka: Disregard for Civilian Safety Appalling – Tamil Tigers Also Preventing Civilians From Fleeing Fighting”

In
“Slaughter in Sri Lanka – Evidence gathered by The Times has revealed that at least 20,000 Tamils were killed on the beach by shelling as the army closed in on the Tigers,” published May 29, 2009, shortly after the defeat of the Tamil Tigers, The Times of London detailed alleged shelling of civilians by the Sri Lankan military, and editorialized that a vote in the United Nations Human Rights Council hailing the victory of the Sri Lankan Government “was an utter disgrace.” The Sri Lankan government disputed that account, with the permanent secretary to the Sri Lankan Ministry of Foreign Affairs, Dr Palitha Kohona, stating according to a BBC report [http://news.bbc.co.uk/2/hi/south_asia/8073540.stm] that  "The simple fact is that Sri Lanka eliminated a detestable terrorist group and in the process rescued over 250,000 hostages held as a human shield by the terrorists."

In a May 27, 2009 editorial the New York Times supported “the call by Navi Pillay, the United Nations high commissioner for human rights, for an international investigation into possible war crimes committed by both sides,” reminiscent of the United Nations Fact Finding Mission on the Gaza Conflict. In a May 20, 2009 New York Times op-ed, the legal and policy director at Human Rights Watch, also advocated a similar step.

Conflict in Gaza (December 2008 – January 2009)

In December 2008, Israel responded to Hamas rocket launches from Gaza by using military force within Gaza. By Israeli accounts, there were 1,166 Palestinian deaths and nine deaths of Israel Defense Forces soldiers. There was international discussion about proportionality in this conflict, leading to a United Nations investigation. The Report of the United Nations Fact Finding Mission on the Gaza Conflict was released September 15, 2009 to widespread international attention, and has stirred substantial controversy. Details of the Mission and a PDF of its report are available online.

In July 2009 The Israel Ministry of Foreign Affairs published is own report on the conflict, "The Operation in Gaza, 27 December 2008 – 18 January 2009: Factual and Legal Aspects" [PDF], followed by its "Initial Response to Report of the Fact Finding Mission on Gaza Established Pursuant to Resolution S-9/1 of the Human Rights Council" on September 24, 2009.

The New York Times reported that the mission’s report detailed “…extensive evidence that both Israel and Palestinian militant groups took actions amounting to war crimes, and possibly crimes against humanity.” The article goes on to note that “The report called Israel’s military assault on Gaza ‘a deliberately disproportionate attack designed to punish, humiliate and terrorize a civilian population, radically diminish its local economic capacity both to work and to provide for itself, and to force upon it an ever increasing sense of dependency and vulnerability.’”


Following the release of the report, Justice Goldstone wrote an op-ed for the New York Times, in which he stated that violations of international law were committed by both sides, but concluded that Israel's response was in fact disproportionate and that, contrary to international law, every precaution was not taken in the protection of civilian lives. Goldstone also argued that these breaches with the law cannot be ignored, and that the international community and Western world must be as comfortable putting allies before the law as they are others.

In a Boston Globe op-ed, James Carroll (bio), also a member of the Ethics Center’s advisory board, stated that “At the heart of the criticism of Israel [in the Mission’s report] is a charge that cannot be readily refuted - that the military operation involved “the application of disproportionate force.’’ Proportion in war has been an essential element of every just war theory.”

Even before the UN Mission’s report, there was an ongoing conversation about proportionality in this conflict. In “Israel and the Doctrine of Proportionality” (Council on Foreign Relations Backgrounder, 2006) Lionel Beehner examined whether Israel has historically met the standards of proportional military response in incursions into Lebanon and Gaza.

There is much controversy over what proportionality means on the ground. Does it entail proportional amounts of force? Proportional objectives? Proportional amounts of lives lost? In a Los Angeles Times op-ed  “Middle East 'proportionality': Israelis and Palestinians are dying; neither math nor logic applies” (January 7, 2009) Etgar Keret examines the different interpretations of proportionality from perspectives within southern Israel and also within Gaza.

Conclusion: Proportionality in Context

One of the pitfalls of discussing “proportionality” is that it is sometimes better addressed in relation to other principles.  In the article “Responsibility and Proportionality in State and Nonstate Wars”, based on remarks delivered February 5, 2009 at the U.S. Army War College, Dr. Michael Walzer (Brandeis ’56) of the Princeton Institute for Advanced Study argues that it makes no sense to consider proportionality without a thoroughgoing analysis of which side bears responsibility for civilian casualties. The attacking army, Walzer points out, does not bear responsibility if the defenders use civilians as human shields. One of the principles of just war theory, he reminds us, is that warfare cannot be made “morally impossible.”  

Walzer’s article is a reminder of the complexity of the proportionality principle, and that its application is not a theoretical process, but depends on close attention to the available facts.

Suggestions for additional content that looks at the ethical issues surrounding proportionality? Let us know.

Comment on this "Ethical Inquiry" on the International Center for Ethics, Justice, and Public Life's Facebook page. Become a fan.

This installment of "Ethical Inquiry" was produced with research support by Jackie Saffir '10.