Basic Principles of International Humanitarian Law: Principle of Proportionality (2).

 Basic Principles of International Humanitarian Law: Principle of Proportionality (2). 

2. Principle of Proportionality

This principle advocates that when targeting a legitimate military objective, an attack is prohibited if it is expected to cause incidental civilian harm (loss of life, injury, or damage to civilian objects) that would be excessive in relation to the concrete and direct military advantage anticipated. The principle recognises that some collateral damage may occur but sets a strict limit on it.

Statutory Authority:

Additional Protocol I, Article 51(5)(b): An attack is indiscriminate (and thus prohibited) if it "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."

Also, in Rule 14 International Committee of the Red Cross (ICRC) it recognises this principle as a customary law. This implies that it is applicable in both international and non-international armed conflicts. It requires a balancing exercise by the attacker, considering factors such as the accuracy of weapons, location of targets, and available intelligence.

Judicial Authority:

The ICTY in Prosecutor v. Kupreškić (2000) described proportionality as a fundamental rule requiring commanders to weigh anticipated civilian harm against military gain. In Galić, the Tribunal further elaborated on its application to shelling campaigns.

The ICJ in the Nuclear Weapons opinion (1996) affirmed proportionality and distinction as central to IHL. More recent jurisprudence, including ICTY cases like Prlić et al. (2017), has examined proportionality in the context of urban warfare and shelling, emphasizing that the assessment must be based on information reasonably available at the time.

Proportionality is closely linked to distinction: an attack that fails the proportionality test becomes unlawful even if directed at a valid target.

In conclusion, this principle guides against the use of means and methods of warfare which is above the military objectives in an armed conflict. Therefore an attack is prohibited if it is expected to cause incidental civilian harm (loss of life, injury, or damage to civilian objects) that would be excessive in relation to the concrete and direct military advantage anticipated.

SI OLAWUNI.

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