The proportionality test is as follows: Is the attack expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof (“collateral civilian damage”) which would be excessive in relation to the concrete and direct military advantage anticipated? Belgium, Statement by the permanent representative of Switzerland during a UN Security Council open debate on the protection of civilians in armed conflict made on behalf of the Group of Friends on the Protection of Civilians in Armed Conflict, namely Australia, Austria, Belgium, Brazil, Canada, France, Germany, Italy, Japan, Liechtenstein, Norway, Portugal, Switzerland, the United Kingdom and Uruguay, 12 February 2014, p. 2. ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, The Hague, 14 June 2000, § 51. It remains the exclusive domain of commanders at the helm of military operations … Armed conflicts on the territory of the former USSR demonstrate that conflicting parties do not observe in their acts the limitations set forth in IHL. Germany, Declarations made upon ratification of the 1977 Additional Protocol I, 14 February 1991, § 4. is proportional to) the concrete and direct advantage anticipated. ICRC, Memorandum on Compliance with International Humanitarian Law by the Forces Participating in Opération Turquoise, 23 June 1994, § II, reprinted in Marco Sassòli and Antoine A. Bouvier. Switzerland, Statement by the permanent representative of Switzerland at the Meeting of the High Contracting Parties to the Convention on Certain Conventional Weapons, 14 November 2013. The chief unifying principle always applies – that the importance of the military mission (military necessity) determines, as a matter of balanced judgment (proportionality), the extent of permissible collateral or incidental injury to [an] otherwise protected person or object. The Military Manual (2005) of the Netherlands states: “The relation between collateral damage and the degree of force used on the one hand, and the expected military advantage on the other hand, must not be disproportionate.”. The principle of proportionality is a particularly difficult component of the law of targeting. The principle of proportionality dictates that the results of such action must not be excessive in light of the military advantage anticipated from the attack. Somalia, Report to the Human Rights Council, 11 April 2011, UN Doc. All Rights Reserved.date: 09 February 2021. United States, Statement of 25 September 1974 at the Conference of Government Experts on Weapons which may Cause Unnecessary Suffering or have Indiscriminate Effects, Lucerne, 24 September-18 October 1974, reprinted in Arthur W. Rovine, In 1987, the Deputy Legal Adviser of the US Department of State affirmed: “We support the principle … that attacks not be carried out that would clearly result in collateral civilian casualties disproportionate to the expected military advantage.”. United Kingdom, House of Lords, Statement by the Parliamentary Under-Secretary of State, Foreign and Commonwealth Office. As plaintiffs argue, a consensus among nations may gradually solidify into recognized international law provided that such consensus is reflected in state practice accompanied by. 5 sub-para. Collateral damage is damage to things that are incidental to the intended target. and such precautions would have led to the anticipation of greater civilian collateral damage which then in fact materialized is this relevant for an analysis of the proportionality of an attack. Spain, Interpretative declarations made upon ratification of the 1977 Additional Protocol I, 21 April 1989, § 6. b AP I [the 1977 Additional Protocol I]) to the anticipated concrete and direct military advantage (see ICRC Customary International Humanitarian Law, 2005 – hereafter ICRC Customary IHL [Study] – p. 46ff). In 1994, in a Memorandum on Respect for International Humanitarian Law in Angola, the ICRC stated: All attacks … which may be expected to cause incidental loss of civilian life, injury to civilians or damage to civilian objects which would be excessive in relation to the concrete and direct military advantage anticipated are prohibited. Type Chapter Author(s) Y. Dinstein Page start 211 Is part of Book Title New wars, new laws? In 2009, the Minister of Foreign and European Affairs of France stated: Violations of humanitarian law are ever increasing, as the current crises are unfortunately there to remind us, whether we are looking at Darfur, Somalia, Gaza, Sri Lanka or the Kivus. The second war crime is a violation of the principle of proportionality: causing disproportionate collateral damage. 3 VStGB does not presuppose that civilian collateral damage has actually occurred … Civilian collateral damage can merely be relevant as indicators for the fulfilment of the subjective element of the crime …, The subjective element of § 11 para. Similarly, in relation to the question of proportionality, IDF [Israel Defense Forces] doctrine requires a commander to refrain from an attack that is expected to inflict incidental harm on the civilian population that is excessive in proportion to the expected military gain. b AP I [the 1977 Additional Protocol I]) to the anticipated concrete and direct military advantage (see ICRC Customary International Humanitarian Law, 2005 – hereafter ICRC Customary IHL [Study] – p. 46ff). Peru’s Code of Military and Police Justice (2006) states: A member of the military or police shall be imprisoned for a period of no less than eight and no more than 15 years if he or she in the context of an international or non-international armed conflict: 3.