Recognition

The Principle of Proportionality: ‘Force Protection’ as a Military Advantage

“…Otherwise the proportionality assessment is distorted from the outset. This is supported by the wording of arts 51(5)(b) and 57 (2)(a)(iii) of Additional Protocol I. Whereas the military advantage is limited by the adjectives 'concrete and direct', no such limiting qualifiers apply with respect to civilian damage.…”

“…56 However, if the adjectives 'concrete and direct' are not to be deprived of all meaning, at least such military advantages as are merely speculative or hypothetical must be excluded. 57 Therefore, the remaining ambiguities notwithstanding, it seems possible to sketch out the following points of reference regarding the interpretation of the words 'concrete and direct'. First, just like the overall aim of winning the war, the overall aim of protecting one's own forces would indeed be too abstract to be considered when assessing the anticipated military advantage of an attack.…”

“…4 Are probable casualties among one's own forces a relevant factor in determining whether an alternative operation would bring about a 'similar military advantage' in the sense of Article 57(3) of Additional Protocol I? 5 And how does 'force protection' relate to the obligation to take 'all feasible precautions … with a view to … minimizing, incidental loss of civilian life' entailed in Article 57(2)(a)(ii) of Additional Protocol I? 6 Yet, arguably, the most important and certainly the most controversial aspect is to what extent 'force protection' may be factored into the proportionality calculus as a relevant military advantage to be weighed against expected civilian casualties, injury and damage.…”

“…See, for example, Eyal Benvenisti, 'Human Dignity in Combat: The Duty to Spare Enemy Civilians' (2006) 39 Israel Law Review 81, 81, 82, 90.5 Article57(3) of Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (entered into force 7 December 1978) 1125 UNTS 3 ('Additional Protocol I') provides that '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' (emphasis added).6 The debate regarding art 57(2)(a)(ii) of Additional Protocol I is mainly focused on the question whether the wording 'feasible' encompasses also military considerations. Such a reading is supported, for example, by the declaration made by the UK at the time of ratification (28 January 1998).…”

Targeted Killings in Response to Security Threats: Warfare and Humanitarian Issues

“…122 In the Tablada case, the Inter-American Commission stated that: "[...] When civilians, such as those who attacked the Tablada base, assume the role of combatants by directly taking part in fighting, whether singly or as a member of a group, they thereby become legitimate military targets. Thus, the use of helicopters firing missiles to target Palestinian fighters accused of terrorism is not in breach of the law of armed conflict, 125 if the lethal attack is conducted by combatants distinguishing themselves as such. In contrast, these humanitarian law rules continued to apply in full force with respect to those peaceable civilians present or living in the vicinity of the La Tablada base at the time of the hostilities (emphasis added)."…”