CYIL Vol. 7, 2016

TUOMAS HEIKKINEN – MARTIN FAIX CYIL 7 ȍ2016Ȏ The proportionality principle interacts a great deal with other precautions codified in Article 57 of Additional Protocol 1, namely obligations to minimize civilian casualties 19 and to verify the military character of the target. 20 However, it is still an independent layer of protection. Even when a military commander takes all feasible precautions to minimize collateral damages, the operation must still pass the proportionality principle. 21 Similarly, even when the strike would not cause disproportional collateral damages, the commander must take feasible precautions to minimize civilian casualties even further. Since the proportionality principle is comparing two different values, it must allow some discretion within the considerations. 22 It is not a purely mathematical issue to be solved by the margin of a single civilian casualty, but a more flexible principle making only clearly disproportional damages unlawful, as the term “excessive” implies. This could be seen as subjective criteria, asking for the military commander to weigh military advantage and collateral damages how he sees fit. However, as noted by ICTY in its Galic judgment 23 and the Israel Supreme Court in the Targeted Killings case, 24 the proportionality principle must employ a standard of “a reasonable commander” instead of allowing purely subjective decisions. The International Committee of the Red Cross’ (ICRC) study of the customary international humanitarian law states that the principle of proportionality is part of customary law. 25 The study bases this on the fact that there is sufficient state practice to sustain this and shows examples of Middle-East conflict between Israel, Egypt, Iran and Syria in 1973 where the states agreed to follow the principle of proportionality even before the Additional Protocol I came into force. 26 But the proportionality principle under customary law does not necessarily mirror Additional Protocol I. The customary status of the principle of proportionality cannot be completely founded as there are still confusions regarding the proportionality even on Additional Protocol I. 27 There are claims that the proportionality principle in customary law would not obligate the attacker to take any extra obligations to protect civilians if the defender fails to hold up to its obligations. 28 Therefore, if the defender uses civilians to shield military targets, that would not increase the attacker’s obligations 19 Additional Protocol I (n 9) Art 57(2)(a)(ii). 20 Ibid . Art 57(2)(a)(i). 21 CLAUDE PILLOUD (n 14) 683. 22 Ibid., 684. 23 Prosecutor v. Galić (Judgment) ICTY- IT-98-29-T (5 December 2003) § 58. 24 The Public Committee Against Torture in Israel v Government of Israel (Targeted Killings case) [11 December 2005] HCJ 769/02 § 57. 25 JEAN-MARIEHENCKAERTS&LOUISEDOSWALD-BECK, Customary International Humanitarian Law Volume 1: Rules (International Committee of the Red Cross 2005) 46. 26 Ibid ., 47. 27 W. HAYS PARKS (n 11) 175. 28 Ibid ., 163.

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