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comprise the principle of proportionality so as to enable it to determine lawfulness or unlawfulness of particular military action.

§ 2. The content of the principle of proportionality in IHL

Under the formula of proportionality set forth in Article 51(5)(b) of Protocol I, the lawfulness of an attack depends on whether the collateral harm it causes to civilians and civilians objects is “excessive in relation to the concrete and direct military advantage anticipated”. But how should we define “excessiveness”, given that any criterion we use must be both “relevant” and “autonomous”? The doctrine understands the meaning of the formula in two different ways: one understanding defines proportionality as a proportion between military advantage and civilian harm; the other defines proportionality as a proportion between means and ends.

Proportionality between harm and advantage

According to the first approach, Article 51 of Protocol I embodies a “balancing philosophy”.362 It means that the principle of proportionality is a comparison of the negative consequences of an attack for the civilian population vis-à-vis its positive consequences in the sense of a military advantage. In other words, proportionality amounts to “an acceptable relation between the legitimate destructive effect and undesirable collateral effects” (emphasis added. – G.V.).363 Apparently, this understanding of proportionality in IHL is similar to the quantitative approach to proportionality of countermeasures.364

However, an approach that looks at proportionality of effects is insufficient. First of all, it faces the obvious challenge of incommensurability: “loss of civilian life, injury to civilians, or damage to civilian objects”, on the one hand, and “concrete and direct military advantage”, on the other, are disparate categories that cannot be

362Cannizzaro E. Proportionality in the Law of Armed Conflict (Op. cit.), p. 336.

363Fenrick W.J. Op. cit., p. 545.

364See above, p. 71-75 of this study.

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compared absent a common yardstick. Lawyers note that proportionality juxtaposes

“unlike values”365 but does not offer an “exchange rate”366 for them so that a decision-maker could put the measured interests on a single scale. Similarly, during the drafting and adoption of Protocol I the proposed principle of proportionality prompted a critique that it “called for a comparison between things that were not comparable, and thus precluded objective judgment”.367 Lawyers of the International

Committee of the Red Cross (“ICRC”) have famously attempted to avoid this problem by changing the term “excessive” to “extensive”: “The Protocol does not provide any justification for attacks which cause extensive civilian losses and damages”.368 Yet, such a formula is logically flawed, since it does not take account of an opposite (military) interest and how “extensive”, or important, it is. The alternative formula therefore denies the very idea of balancing inherent to the principle of proportionality.369

However, a deeper problem embedded into the first approach is that it is unable to determine which effects are to be compared – in other words, what kind of military advantage and what kind of civilian harm may be included into the calculus. International lawyers argue this issue along at least three lines.

First, it is unclear how far remote in time and/or space an anticipated military advantage may be. On the one hand, Article 51(5)(b) of Protocol I speaks of

“concrete and direct” military advantage. As follows from the ICRC commentary to Protocol I, this phrase should mean that “the advantage concerned should be

365Oeter S. Op. cit., p. 197.

366Franck T.M. On Proportionality of Countermeasures in International Law (Op. cit.), p. 729.

367CDDH/III/SR.6. P. 49. § 42 // Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts. Geneva (1974-1977). Vol. XIV. Bern, 1978.

368Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 / Ed. by Y. Sandoz, C. Swinarski, B. Zimmermann. Geneva, 1987. P. 626.

369Unsurprisingly, this view of ICRC lawyers has attracted widespread criticism. See, e.g.: Schmitt M.N. Fault Lines in the Law of Attack // Testing the Boundaries of International Humanitarian Law / Ed. by S.C. Breau, Agnieszka Jachec-Neale. L., 2006. P. 277-307, 294; Rogers A.P.V. Law on the Battlefield. 2nd ed. Manchester, 2004. P. 21; Gardam J. Op. cit., p. 106-107.

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substantial and relatively close, and that advantages which are hardly perceptible and those which would only appear in the long term should be disregarded” (emphasis added. – G.V.).370 On the other hand, a number of states made declarations upon ratification of Protocol I, stating that the anticipated military advantage was intended to mean “the advantage anticipated from the attack considered as a whole, and not only from isolated or particular parts of that attack” (emphasis added. – G.V.).371 Those who support this latter interpretation, argue that a narrow definition of “military advantage” would be unrealistic: “The aggregate military operation of the belligerent may not be divided up into too many individual actions, otherwise the operative purpose for which the overall operation was designed slips out of sight.

… [T]he point of reference of the required balancing is not the gain of territory or other advantage expected from the isolated action of a single unit, but the wider military campaign of which that action forms part”.372 The decades-long debate has paused at the codification of the term “concrete and direct overall military advantage anticipated” in Article 8(2)(b)(iv) of the Rome Statute of the International Criminal Court. It is clear from the wording of this phrase that the new definition reflects both views at once. In addition, the adoption of the Rome Statute was accompanied by various interpretative statements and declarations, made to reaffirm each of the two opposing interpretations of the scope of “military advantage”.373 Other scholars

370Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 / Ed. by Y. Sandoz, C. Swinarski, B. Zimmermann. Geneva, 1987. P. 684. See also: Cannizzaro E. Proportionality in the Law of Armed Conflict (Op. cit.), p. 337; Hampson F.J. Proportionality and Necessity in the Gulf Conflict // American Society of International Law. Proceedings of the 86th Annual Meeting. Washington, 1992. P. 47.

371Rule 14. Proportionality in Attack // Customary International Humanitarian Law / Ed. By J.-M. Henckaerts, L. Doswald-Beck. Vol II. Part 1. N.Y.; Cambridge, 2005. P. 326-327.

372Oeter S. Op. cit., p. 175, 197. See also: Schmitt M.N. Op. cit., p. 295; Bothe M., Partsch K.J., Solf W.A. Op. cit., p. 352.

373See, e.g.: Elements of Crimes, Rome Statute of the International Criminal Court. Art. 8(2)(b)(iv). Footnote 36 // U.N. Doc. ICC-ASP/1/3. // U.N. Doc. ICC-ASP/1/3 (“The expression ‘concrete and direct overall military advantage’ refers to a military advantage that … may or may not be temporally or geographically related to the object of the attack.”); Rule 14. Proportionality in Attack // Customary International Humanitarian Law / Ed. by J.-M. Henckaerts, L. Doswald-Beck. Vol II. Part 1. N.Y.; Cambridge, 2005. P. 331 (during the adoption of the Rome Statute the ICRC stated that adding the word “overall” to the definition of military advantage “must be understood as not changing existing law”).

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attempt to find some common ground between the two approaches, but ambiguity persists.374

Second, it is unclear whether “military advantage” may include protection of the attacker’s own armed forces.375 More specifically, it is common in the context of modern warfare to use tactics supposed to reduce risks to one’s own armed forces (e.g., reliance on high-altitude aviation or unmanned aerial vehicles), which often also means higher risks for civilians (for example, due to a higher margin of error per airstrike). Those who believe that force protection should be factored into the scope of “military advantage” argue that, in today’s realities, tasks of military importance are not limited to annihilating enemy armed forces or gaining ground376 but also include preserving one’s “ability to conduct future attacks”.377 Their opponents retort that if force protection is counted as “military advantage”, then

“there would not be much left of the principle of distinction [between combatants and civilians]”.378 Finally, some scholars prefer to take a middle course, arguing that it is permissible to factor force protection in, provided that armed forces assume “a reasonable share of risk”.379

Third, the scope of the term “harm to civilians and civilian objects” is also indeterminate. Specifically, it is unclear whether it includes long-term and indirect

374Arnold R. Article 8. War Crimes // Commentary on the Rome Statute of the International Criminal Court / Ed. by O. Triffterer. München, 2008. P. 339-340 (arguing that the advantage should be “substantial and relatively close” but not “only… potential or indeterminate”, and that “attack as a whole” may not be understood “as meaning the whole conflict”); Doswald-Beck L. The Value of the 1977 Geneva Protocols for the Protection of Civilians // Armed Conflict and the New Law: Aspects of the 1977 Geneva Protocols and the 1981 Weapons Convention / Ed. by M. Meyer. L., 1989. P. 157 (arguing that military advantage may be measured in relation to an overall tactical operation but not a strategic one). These criteria, for instance, are unhelpful in deciding whether the campaign of defoliation undertaken by the United States as an anti-insurgent tactic in the Vietnam conflict of the 1960s was proportionate or not. See Gardam J. Op. cit., p. 101.

375For an analysis of the principle of proportionality in IHL through the leans of this indeterminacy, see Blum G. Op. cit., p. 63-67.

376This narrow interpretation of military tasks may be found in the ICRC commentary. See Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 / Ed. by Y. Sandoz, C. Swinarski, B. Zimmermann. Geneva, 1987. P. 685.

377Schmitt M.N. Op. cit., p. 297. See also: Bothe M., Partsch K.J., Solf W.A. Op. cit., p. 352; Benvenisti E. Human Dignity in Combat: The Duty to Spare Enemy Civilians // Israel Law Review. 2006. Issue 2. P. 81-109, 90, 93.

378Oeter S. Op. cit., p. 191.

379Cannizzaro E. Proportionality in the Law of Armed Conflict (Op. cit.), p. 340.

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negative effects (e.g., harm to civilians caused by attacks on dual-use objects (power grids, bridges, etc.)). Some believe that such attacks may not be included into the proportionality calculus, since “the case is not one of straightforward causation”380 and “modern warfare must be expected to cause considerable disruption of societal life in any developed society”.381 Others, to the contrary, think that the principle of proportionality must apply to exclude from the range of permissible attack “many and perhaps most dual-use facilities that perform indispensable civilian functions”.382 Finally, there are suggestions to include or exclude such effects on a case-by-case basis.383

Therefore, the approach that focuses on proportionality of effects turns out to be both “irrelevant” (since it relies on various formal criteria which may not duly reflect the real needs of armed forces as well as real impact on the civilian population)and “non-autonomous” (since the abstract notions of “advantage” and “harm”, taken on their own, do not restrain a decision-maker when assessing proportionality of a particular attack). For proportionality to work, we need to add another element that would, first, introduce a common yardstick into an assessment of an attack’s effects and, second, distinguish between factors which should count as effects and those which should not.

Proportionality between means and ends

According to an alternative approach, Article 51 of Protocol I provides for proportionality between means and ends. Already before the adoption of Protocol I, value-oriented international lawyers like McDougal argued that proportionality in the law of war referred to “the relation between the amount of destruction effected

380Kalshoven F. Implementing Limitations on the Use of Force: Proportionality and Necessity // American Society of International Law. Proceedings of the 86th Annual Meeting. Washington, 1992. P. 45.

381Ibid.

382See Shue H., Wippman D. Limiting Attacks on Dual-Use Facilities Performing Indispensable Civilian Functions // Cornell International Law Journal. 2002. P. 559-579.

383See Schmitt M.N. Op. cit., p. 295-296.

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and the military value of the objective sought in the operation being appraised”.384

Here proportionality is looked at through the lens of “necessity”: “Disproportionate destruction is thus, almost by definition, unnecessary destruction”.385 The idea of minimum necessary destruction, underlying this approach to the principle of proportionality, structures the opposing values of “military necessity” and

“humanity”. It assumes that the latter may be interfered with only insofar as truly necessary to achieve an aim (objective) of military importance.386 Today scholars describe this view of proportionality through the idea of “least deleterious means”,387 which is essentially codified in Article 57(3) of Protocol I: “When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects”. This understanding of proportionality in IHL is akin to the qualitative approach to proportionality of countermeasures.388

But a value perspective on proportionality is also insufficient. First, taken alone, the test of “least deleterious means” is “irrelevant”. It assesses the means chosen only in relation to a military aim and does not consider humanitarian interests on the other side of the scales. Critics point out that if such an approach was followed, “[i]nstead of accommodating equally ranking competing interests,

384McDougal M., Feliciano F. Op. cit., p. 524.

385Ibid.

386Ibid., p. 521, 525-530. The two discussed approaches to proportionality in IHL reveal the duality of the term “military objective” in Protocol I (Article 52(2)): it may be understood as referring to a “military object” (which is more in line with an understanding of proportionality as a proportion between harm and advantage) or, alternatively, as referring to a “military aim” (which is more in line with an understanding of proportionality as a proportion between means and ends).

387Estreicher S. Privileging Asymmetric Warfare (Part II)?: The “Proportionality” Principle under International Humanitarian Law // Chicago Journal of International Law. 2011-2012. P. 143-157, 154-157; David E. Op. cit., s. 266-267, 447 (defining proportionality as “the law of the least evil”). See also: Higgins R. Op. cit., p. 233; Franck T.M. On Proportionality of Countermeasures in International Law (Op. cit.), p. 727-728; Rule 14. Proportionality in Attack // Customary International Humanitarian Law / Ed. By J.-M. Henckaerts, L. Doswald-Beck. Vol II. Part 1. N.Y.; Cambridge, 2005. P. 326 (upon ratification of Protocol I, Australia and New Zealand declared that the expression “concrete and direct military advantage” meant “a bona fide expectation that the attack will make a relevant and proportional contribution to the objective of the military attack involved”).

388See above, p. 75-77 of this study.

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proportionality would have the more limited function to prohibit unnecessary collateral damage”.389 In other words, if a particular attack were the only possible means of achieving a given military goal, then under this view it would be proportionate even if collateral harm to civilians and civilian objects were enormous.390

Second, the very principle of military necessity and its mirror principle of humanity do not have their own meanings as legal notions. On the one hand, these notions are tautological as they are defined through one another: “[T]he principle of military necessity is said to be ‘subject to the principles of humanity…’, while the principle of humanity is assumed to preclude only such kind and degree of violence as is ‘not actually necessary’”.391 To put it otherwise, the definitions of these principles merely indicate that each of the two ends at a point where another begins.

On the other hand, the principles of military necessity and humanity are susceptible to the phenomenon of reversibility.392 In the IHL context, reversibility means that humanitarian interests may be furthered by arguing that the use of force is unnecessary, or superfluous, while pursuit of military interests may be justified on humanitarian grounds. Examples of the first flip include an argument that “military necessity may also be regarded as a limitation on belligerent behavior: by no means all war-driven actions are necessary”,393 or an argument that infliction of superfluous injury on an adversary “is meaningless even from the most realist point of view”.394

The second flip may be illustrated by a decades-long discussion on the legality of the use of nuclear weapons. Thus, resort to nuclear bombing by the United States

389Cannizzaro E. Proportionality in the Law of Armed Conflict (Op. cit.), p. 336 (fn. 8).

390See Farer T.J. The Laws of War 25 Years After Nuremberg // International Conciliation. 1970-1972. P. 16-17.

391McDougal M., Feliciano F. Op. cit., p. 522. See also: Bothe M., Partsch K.J., Solf W.A. Op. cit., p. 350.

392See Koskenniemi M. From Apology to Utopia: The Structure of International Legal Argument. 2nd ed. N.Y.; Cambridge, 2005. P. 503-512.

393Rusinova V.N. Op. cit., s. 168. See also: International Committee of the Red Cross. Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law. Geneva, 2009. P. 78-82; Poltorak A.I., Savinskiy L.I. Op. cit., s. 125-126.

394Pictet J. Op. cit., p. 62.

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against Japanese cities during the Second World War was usually justified by arguing that it brought nearer the end of the war and prevented heavy casualties which would have followed in case of a ground military operation in Japanese territory.395 Indeed, it was by reference to humanity that Judge Higgins argued in her Dissenting Opinion to the Nuclear Weapons Advisory Opinion by the International Court of Justice that it was ultimately possible for a state to use nuclear weapons without violating the principle of proportionality:

[I]n order to meet the legal requirement that a military target may not be attacked if collateral civilian casualties would be excessive in relation to the military advantage, the “military advantage” must indeed be one related to the very survival of a State or the avoidance of infliction … of vast and severe suffering on its own population…

(emphasis added. – G.V.).396

It is, of course, true that as soon as a dispute emerges about the lawfulness of a particular attack during an armed conflict, we always witness a clash of two opposite ideological positions or projects, conventionally understood as those of the military and of the humanitarian.397 Recall that this value antagonism is one of the factors that distinguish “mixed”-type proportionality in IHL from a purely “horizontal” version of proportionality, say, in the law of countermeasures.398 Yet, since “military necessity” and “humanity” are empty as legal principles, no legal decision can be deduced directly from either one of those. In order to get meaning, these principles need to be complemented by the factual content of competing interests on a case-by- case basis. Thus, most international lawyers would agree that in order to decide on

395For a typical example of this kind of reasoning, see: Brown B.L. The Proportionality Principle in the Humanitarian Law of Warfare: Recent Efforts at Codification // Cornell International Law Journal. 1976-1977. P. 134-155, 141-

142.In the same spirit, McDougal remarked that, paradoxically, “contemporary weapons whose destructiveness almost surpasses understanding” could yet move IHL towards more humanity. See McDougal M., Feliciano F. Op. cit., p. 523.

396International Court of Justice. Legality of the Threat or Use of Nuclear Weapons. Advisory Opinion of 8 July 1996 // I.C.J. Reports 1996. P. 588. § 21. Dissenting Opinion of Judge Higgins.

397Scholars also describe this phenomenon as an ideological opposition between the “national military” and the “international humanitarian” approaches (Kennedy, David. Lawfare and Warfare (Op. cit.), p. 175), or between “collectivism” and “cosmopolitan individualism”, respectively (Blum G. Op. cit., p. 48-50).

398See above, p. 64-66 of this study.

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the legality of nuclear weapons, one has to try to draw a line between its proportionate (lawful) and disproportionate (unlawful) use depending on various factual scenarios.399 But taken on their own, “military necessity” and “humanity” do not in any way restrain a decision-maker in his/her assessment of proportionality, and may be used to challenge an opponent’s assessment as based on a wrong interpretation of necessity or humanity. This undermines IHL’s “autonomy”.

Attempted reconciliation

To sum up, the two opposing understandings of the principle of proportionality in IHL turn out to be mutually dependent. What we perceive as the effects of an attack depends on our value perspective on war (“what effects would it be just to include in the calculus?”) – while values that play out in decision-making about warfare cannot be applied outside of context (“which way an attack would cause less suffering?”).

For this reason, IHL scholars tend to formulate the principle of proportionality using both approaches. So, it is argued that “only losses among the civilian population and damages to civilian property which were necessary to fulfil the military mission and which were proportionate in relation to the military advantage sought, may be justified” (emphasis added. – G.V.).400

The dual approach makes standard examples of proportionality in attack sound like these ones:

Humanitarian law [seeks] to avoid attacks causing catastrophic collateral damage when the objective is of only marginal importance…

An example often cited is the option to attack, instead of a railway station inside a city, an equally important railway junction or line at a strategically important point outside

399See, e.g.: Oeter S. Op. cit., p. 160-161, 195.

400Arnold R. Op. cit., p. 339. See also: Oeter S. Op. cit., p. 190-191 (arguing that “it is way beyond a mere logical deduction from military necessity to state that losses among the civilian population, even if resulting from an attack on a military objective and being necessary in a military perspective, may not always be legally permissible[; s]uch a proposition cannot, in pure logic, be derived from the principle of military necessity”, so what is required is “a second fundamental principle, namely the essential principle of proportionality”).

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a densely populated area, on the basis that the destruction of such a crucial point causes as much disruption to the enemy lines of communication as the destruction of an urban station.401

The problem with such examples is that they describe already the result of proportionality analysis, the outcome of balancing between conflicting interests – whereas the very question is how we find ourselves in this particular balancing formula (e.g., why collateral damage here is “catastrophic” and a military objective is “of marginal importance”? and why a railway junction outside of the city is an “equally important” target and would cause the same extent of “disruption”, so that attacking it would be the least deleterious means of achieving a military goal?). Should all those elements be obvious, the use of the principle of proportionality would be “self-evident”402 and would not involve any disagreement – which, of course, would make this very principle superfluous.403 The reality, however, is just the opposite. First, parties to a dispute routinely disagree about the means-ends relationship, or the necessity of an attack – specifically, whether there are any alternative, less civilian-harmful attack options that could achieve a military goal just as effectively. Second, they disagree about the extent of military advantage and civilian harm – e.g., whether the harm caused by this particular attack is

“catastrophic” or whether the military advantage is “marginal”. Since neither of these disputes can be resolved within a corresponding approach to proportionality (in the first case – proportionality between means and ends; in the second case – proportionality between harm and advantage), the parties naturally tend to use both approaches alternately in order to destabilize their opponent’s view of proportionality in each individual case. For example: an argument that a given extent of civilian losses is excessive –> an argument that a given military objective could not be achieved by other, less civilian-harmful means –> an argument that an

401Oeter S. Op. cit., p. 198, 203.

402Ibid.

403See above, p. 44-46 of this study.