![]() ![]() But understanding and applying the law of war can lead to less suffering-and eventually, a better peace.ĭisclosure: The author has taught the law of war to U.S. Reducing the principle of proportionality-and the excruciating decisions of military commanders-to a social media slogan demeans the core principles that keep us from the evils of the past. The Conventions were signed in the wake of World War II when the world decided to say “Never Again” to carpet bombing, indiscriminate use of nuclear weapons, and other horrors wrought by that war. More than a mere social media slogan, proportionality is a fundamental principle upon which all states in the world have agreed via the 1949 Geneva Conventions. Yet despite these horrible truths, proportionality does put an important constraint on military operations that reduces human suffering. And an attack can be lawful and still immoral-or made to look that way on social media. An attack can be lawful even if a reasonable commander knows that civilians will suffer and die, and that city blocks will be destroyed-if they apply the appropriate balancing test. A legal academic discussion of a balancing test will give no comfort to a bereaved mother in Gaza. Proportionality is a challenging principle to understand-not only because of semantics, but because of the cruel reality of war. It requires that the commander makes a reasonable decision-not one that is always correct. The principle recognizes that a commander makes decisions with incomplete information, under time and operational pressure, and within the fog of war. Proportionality is assessed based on the information a commander has at the time of the attack itself. Military commanders, advised by their lawyers, must apply the principle of proportionality to every strike. Rarely, if ever, does the calculation boil down to a simple numerical equation. Canadian military manual notes that an airstrike against an ammunition depot while a farmer was plowing a nearby field would not be excessive. ![]() Belgium’s 2009 military manual offers the example that bombing an isolated fuel tanker in the middle of a densely populated city would be excessive. Proportionality is violated only when incidental civilian injury and collateral damage is “excessive.” The term “excessive” is the crux of the commander’s balancing test and remains undefined in law. ![]() The law seeks to mitigate this risk while recognizing the harsh realities of war. The law of war recognizes that risk to civilians and civilian property in war are both inevitable and a tragedy. In a densely populated place like Gaza, If Israel conducted every strike lawfully and with all of the military precision that technology allows, many horrible deaths of innocent civilians would still occur. An equal or larger challenge lies in the difficulty of minimizing incidental injury to civilians and collateral damage-cold, clinical terms for death and injury of civilians and civilian property damage resulting from war. Urban warfare is one of the most difficult and dangerous types of warfighting-not only because of the risks to soldiers fighting terrorists in a maze of underground tunnels. The article aims to shed light on the calculations that military lawyers in states bound by the law of war-including Israel-make when striking targets in an extraordinarily complex combat environment. Not enough information is known at this time to make such a determination-for this or most other Israeli strikes in Gaza this month. This article takes no position on the legality of Israel’s strike in Jabaliya. ![]()
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