International Humanitarian Law : Principle of Proportionality

             The principle of proportionality basically states that in the conduct of hostilities during an armed conflict, parties involved in the conflict must not launch attack against lawful military objectives if the attack might be expected to cause ‘excessive civilian harms’ (deaths, injuries, or damage to civilian objects, or a combination thereof) compared to the ‘concrete and direct military advantage anticipated’.[1] If party of an armed conflict is found intentionally conducting a disproportionate attack and causes unnecessary sufferings, thus the attack may constitute a war crime. Breaking the rule of proportionality is an indiscriminate attack according to 1977 Additional Protocol I.

            The questions remain are; what is ‘excessive’? The disproportion between damages and losses caused and the military advantaged anticipated will leave rooms for different interpretations and tight debate. In other words, the current codified IHL still doesn’t have clear threshold on what constitute a disproportionate attack. Deciding whether or not an attack is proportionate or not needs a case per case analysis and most of the times are hard to be generalized into one ruling codification of law. This principle has not been clearly codified in the IHL thus causes several ambiguous interpretation from IHL subjects of law but is deemed by ICRC to be a customary rule of IHL applicable not only in international armed conflicts but also in non-international armed conflicts.[2]

              Another question remains is what truly constitute a ‘concrete and direct military advantage’? or what are included in ‘unnecessary sufferings’?  With the lack of clear codification, we still depend mostly on judicial decisions, customary international law, and military handbook from each state in regulating the application of this principle. For example is that we still depended on judicial decisions in matters pertaining to nuclear weapons since the regulations banning the use of it is still ambiguous. The ICJ in its Advisory Opinion of the Nuclear Weapons 1996 stated that the prohibition to cause unnecessary suffering is an “intrangressible principles of international customary law”.[3] In specific, the case prohibits states to freely use weapons which might cause unnecessary suffering, in that it causes a harm greater than that unavoidable to achieve legitimate military objectives.[4] Thus, we can analyze from the decision that if the suffering inflicted is greater than the gained military advantage and there are still other alternatives which can be used to avoid that, then it could be deemed that the method violates the principle of prohibition to cause unnecessary suffering.

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[1] 2005 ICRC’s rule no. 14 study of customary international humanitarian law :

Launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited.

[2] Ibid.

[3] ICJ, Nuclear Weapons Case, Advisory Opinion, 8 July 1996, para. 78-9

[4] Ibid.