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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.