(This category includes not only military religious and medical personnel, but also, e.g., wounded and sick forces, and perhaps some parlementaires, too.) Once again, I join the other participants in this Just Security “mini-forum” in extending my heartfelt thanks to the DoD officials who have worked so tirelessly to make the development of the Manual a truly “living” project, in which each iteration offers distinct and meaningful improvements on what has come before. They concern the principles of distinction, proportionality and precaution, the prohibition on causing superfluous damage and unnecessary suffering and the principle of non-discrimination as well as the so called Martens Clause. However, none of this is absolute, and as the Manual notes, there may be times when a subordinate must question, and perhaps even disobey an order to conduct an attack.” Geoff is right to caution, however, that the new text also includes a “dangerous” suggestion that the obligation to disobey unlawful orders “is somehow qualified by the complexity of the [proportionality] rule itself”—a notion that “might . Concluded the experts’ panel: "Individuals in the coalition, in particular Saudi Arabia, may have conducted airstrikes in violation of the principles of distinction, proportionality and precaution." Furthermore, it appears that between the time of O’Connor’s speech and last week, DoD eliminated any express suggestion that if and when civilians make a “choice to support military operations in or on a military objective”—such as, presumably, by working in a munitions factory, accompanying the enemy armed forces, or providing medical assistance to such forces—such civilian “choices” “may be weighed by commanders as a factor in the proportionality analysis.”  (Oona, Mike Schmitt and I criticized that idea here.). Therefore, they, too, should be removed or substantially rewritten. 19: The Criminal Legal System — Toward a Paradigm Shift, Good Governance Paper No. [4] As Adil notes, it is not clear that this statement in the UK Manual is designed as an instruction directed to the attackers themselves, and it is not, in any event “a strong foundation for the view that attackers may discount harm to human shields in determining the proportionality of an attack. If only more government agencies did likewise! This is one case in which there is no apparent need to start carving out exceptions. In legal terms, this means that it is unclear whether AWS are in compliance with IHL, particularly the principles of distinction, proportionality and precautionary measures. ), For the reasons that Mike, Oona and I have explained, the law of war does not permit or encourage this sort of “relative” weighing of civilian lives in the proportionality calculus, depending on “factor[s]” such as whether the enemy is in part responsible for their presence, or the degree of “connection” between non-DPH civilians and the military effort. . I’ll now turn to the way in which the Manual applies the principle of proportionality to four different groups of civilians or other protected persons who may not be the subjects of a direct attack. When several targets serve the same military purpose, the attacker should choose the target which is expected to cause the least danger to civilians and their property. For the most part, those sections of the Manual describe the law accurately, and appear to reflect very robust, protective perspectives on the fundamental laws of war that are designed to protect civilians and civilian objects from the ravages of war (e.g., the rules of distinction, precaution, and proportionality). [2], The revised sections and passages on “human shields” include some improvements, but they remain troubling and confusing in other respects. DoD therefore should seriously consider pruning them back considerably. Avoiding Collateral Damage on the Battlefield, #StopTheSteal: Timeline of Social Media and Extremist Activities Leading to 1/6 Insurrection, Uganda’s Museveni Secured His Sixth Term in Office: What the International Community Can Do Now, A Key Step in Preventing a Future SolarWinds, Diplomats, Top Experts’ Reactions to Biden Foreign Policy Speech, Movie at the Ellipse: A Study in Fascist Propaganda, Congress Now Has More Power to Shed Light on Trump’s Abuses of Power, Why Guantánamo Detainees Should Have Access to COVID Vaccines Part I: Law of Armed Conflict and Good Policy, If the US Wants to Push Back on Authoritarian Agendas at the UN, Get Counterterrorism Right, New Aid for Israeli-Palestinian Peacebuilding Aims at Issues Underlying Security, NATO and the Nuclear Weapons Ban Treaty: Options for the Biden Administration, How to Fix the U.S. The responsibility for innocent casualties falls upon those who would violate the law of war by using innocents as shields.”. The Use of Depleted Uranium and the Principles of Distinction, Proportionality and Precaution Kleffner, Jann K. Swedish National Defence College, Department of Security and Strategic Studies (ISS), International Law Centre. Diakonia use cookies on this site to enhance your user experience. See Manual Sections 4.9, 4.11 (when States choose to “subject such staff to military laws and regulations,” then “such personnel are to be treated like military medical and religious personnel”). Just Security is based at the Reiss Center on Law and Security at New York University School of Law. Fourth, and perhaps most significantly, DoD has eliminated the passages in the previous versions of the Manual, which Oona and I sharply criticized, indicating that civilians in or proximate to military objectives need not be counted in a commander’s proportionality analysis. More to the point, this notion that the defenders and civilians have the “primary” responsibility to eliminate the presence of civilians near military objectives—even in cases in which the defending army has not deliberately forced civilians to be present near such targets for the purpose of deterring enemy attacks, and has not done anything else impermissible—infects the Manual’s subsequent, questionable discussion (see below) of how the proportionality principle purportedly applies with weakened force to such civilians in the proximity of military targets. To the extent these statements are read to suggest that the enemy’s responsibility for the human shields lowers or eliminates the constraints of the rule of proportionality—which might not be the only reading of them, but is the likely way in which many readers will understand them—they would be incorrect. In its next round of edits, DoD should amend Sections 7.8.2.1 and 7.12.2.5 to clarify that they apply only to military personnel, to specify when, if at all, civilian medical personnel are to be treated the same as military personnel, and, ideally, to expressly state that civilian medical personnel are fully protected by the proportionality principle. Proportionality . Nevertheless, it is a valuable development for the Manual to remind military decision-makers that the law of war constrains the use of force when there is no military imperative for choosing options that result in greater harm to civilians. According to Jean Pictet, the Principles which inspire the framework of IHL can be found expressly formulated on conventions or implicitly captured inside its substance, acting as l ossature du corps vivant, 14 and characterized by a high level of abstraction and generalization. The leadership of the attacked community needs to take feasible steps to minimise the anticipated harm towards its own civilian population, most notably by not situating military objects close to civilian objects. I think it’s important to take these officials at their word concerning the limited authority of the Manual‘s footnotes. — Section 5.10.2.3 states, correctly, that there “might be variation in how reasonable persons would apply the principle of proportionality in a given circumstance.”  A new footnote appended to that statement, however, cites an observation from a study by Professor Dill that “Commanders suggest that, proportionality judgements, in reality, often boil down to asking ‘can the estimated collateral damage be further reduced, through timing, choice of weapons or angle of attack?’  If the answer is no, the principle is considered to be fulfilled.”  This is a very troubling addition. Distinction and Proportionality. These examples are illustrative of a broader problem with the footnotes in the Manual. They protect civilians against the effects of cyber operations. It is not clear why DoD retained the passage in 5.12.1, and the footnote citations in 5.12.3.3, even after making its most recent changes to the Manual. It merely reasons that “treaty provisions articulating a prohibition on attacks expected to cause excessive incidental harm,” such as the one in API, “do not reflect protections for military personnel who are protected from being made the object of attack.”  That is true, but it does not resolve the customary law question. surprising narrative [among the commanders she interviewed] centered on the denial that the [proportionality] rule even required balancing military gain and loss of civilian life. In fact, it accepts any weapon, means or method of warfare unless it violates international law and it puts responsibility on the states to determine if its use is prohibited. . Again, this suggestion of variable valuations of civilian harms is not something that the proportionality principle of customary law recognizes. The principle of proportionality (Article 51(5) (b) API) states that even if there is a clear military target it is not possible to attack it if the expected harm to civilians, or civilian property, is excessive in relation to the expected military advantage. Second, as Geoff Corn notes, the new revision includes, in Sections 5.10.2.4 and 5.10.2.5, a substantial treatment of how proportionality assessments are allocated between the commander ordering an attack and the subordinates executing that order. This principle, however, represents the only trustworthy way to reconcile The parties to armed conflict must, as much as possible, give effective warnings before an attack. Kieran Tinkler and Michael Schmitt, November 12, 2020 by Neve Gordon and Nicola Perugini, November 10, 2020 by Oona Hathaway, Mark Stevens and Preston Lim, September 12, 2019 by Michael Schmitt, Sqn. What about medical personnel who are in the vicinity of legitimate military targets but who are not themselves part of the armed forces? Three additional problems (mostly) in footnotes. We are confident such an amendment would reflect, not contradict, longstanding DoD practices. Not surprisingly, however, there remains a lot of important work to be done. Section 1.2.2 further explains that the Manual “cites sources in the footnotes to support or elaborate upon propositions in the main text.”  Far too often, I think, the Manual‘s footnotes at least appear to cite isolated historical actions of the U.S. government, or statements of U.S. officials, in order to suggest that because the U.S. has done or blessed something in the past, ergo it must not be a violation of the law of war. As Oona, Mike and I wrote shortly before the release of this latest revised text: The Department should amend the Manual to more accurately reflect customary law concerning how to treat individuals in cases of doubt about their status. The first of these rules—the prohibition on attacks that are expected to cause “excessive” harm relative to the expected direct and concrete military advantage—is, indeed, what all the world recognizes as the “proportionality principle” or “the rule of proportionality.”  The latter rule, however—the requirement to take feasible precautions before attack to minimize civilian casualties—is generally understood as a distinct rule, rather than a component of the proportionality principle. That same section then goes on to say, however, somewhat cryptically, that “the enemy[’s] use of voluntary human shields may be considered as a factor in assessing the legality of an attack”—presumably even in cases in which the shields are not directly participating in hostilities. Diakonia International Humanitarian Law Centre. The burden is on DoD, however, to demonstrate that this odd halfway measure reflects customary law; and it has not carried that burden. — Section 5.10.2.2 states, correctly, that a “commander’s decisions on proportionality must be reasonable” and that “for example, the commander must be able to explain the expected military importance of the target and why the anticipated civilian collateral injury or damage is not expected to be excessive.”  That is fine as far as it goes; but the corresponding footnote cites an Air Force Manual to the effect that “if the commander can clearly articulate in a reasonable manner what the military importance of the target is and why the anticipated civilian collateral injury or damage is outweighed by the military advantage to be gained, this will generally satisfy a ‘reasonable military commander’ standard.”  This is misleading:  A reasonable articulation of why the commander acted as he did does not mean that the balance he struck was itself reasonable, which is what the proportionality rule requires. The rule of proportionality is the relevant rule whenever people talk of ‘collateral damage’. The proportionality principle, practiced as fundamental method in constitutional review, faces new challenges in the contemporary settings of "precaution state". According to the ICRC survey, for example, the Manuals in Australia, Canada, and New Zealand, and France’s Code of Defence, all insist that (in the words of the Australian Manual) “[p]roportionality requires a commander to weigh the military value arising from the success of the operation against the possible harmful effects to protected persons and objects.” And, at a minimum, it certainly would not be a stretch to say that the “dictates of conscience” (cf. It’s Legally Possible, Whether or Not Politically Prudent, Guidelines on Investigating Violations of International Humanitarian Law, Army and Marine Corps Publish New Manual: The Commander’s Handbook on the Law of Land Warfare, Transparency on Civilian Harm in Somalia Matters – Not Just to Americans, Human Rights, Deprivation of Life and National Security: Q&A with Christof Heyns and Yuval Shany on General Comment 36, Need for Change to Protect Children in Armed Conflict, Human Shields and Proportionality: How Legal Experts Defended War Crimes in Sri Lanka, COVID-19 and International Law Series: International Humanitarian Law – Conduct of Hostilities, Getting Serious About Protecting Health Care in War, An Overview of International Humanitarian Law in France’s New Cyber Document, The Yemen Project: Open Source Investigations and the Law of War. During hostilities the parties to an armed conflict are obliged to respect the rules on precautions in attack. As Adil Haque explained in his post last week, “[t]he responsibility of the defending force, as such, does not affect the permissibility of the attacking force’s decision to strike.”  And the Manual itself is very clear that both voluntary and involuntary human shields must be counted in the proportionality analysis, even if it also (incorrectly) states that the defender’s responsibility for the proximity of such civilians “is a factor to be taken into account in favour of the attackers.”  In order to eliminate further confusion, I recommend that DoD remove from the Manual the passages quoted above, especially those in the footnotes. Based on the incidents they examined, the Group of Experts have reasonable grounds to believe that individuals in the Government of Yemen and the coalition may have conducted attacks in violation of the principles of distinction, proportionality and precaution that may amount to … Worst of all along these lines is footnote 240 of Part 5, which quotes Guenter Lewy’s study of Vietnam for the proposition that “once civilians act as support personnel they cease to be noncombatants and are subject to attack”—even when for example, when they act “under duress,” or when they act only as “porters”! by Marty Lederman. As I wrote earlier: From what little I know about this particular topic, the customary law of proportionality (and AP I, too, for that matter) has rarely considered whether and how military personnel who are protected — in the sense that they may not be targeted — must be accounted for in any proportionality analysis. Kieran Tinkler and Durward Johnson. Rules relating to precaution are intended to guarantee that the parties will never disregard the presence of civilians, and are obligated to take steps to minimise the harm caused to innocent civilians. written by LissaHumaneLife DoD should reconsider those statements sooner, rather than later, not only because the propositions in 5.4.3.2 do not reflect either customary law or DoD practices, but also because, if taken at face value by commanders, they could encourage much less discriminating decisions to use force against persons and objects whose military or civilian character is uncertain. The Manual does not offer any such case, however; indeed, it does not cite any authorities at all. Ldr. Similarly, although Section 5.12.3.3 correctly, and helpfully, confirms that “those determining whether a planned attack would be excessive must consider such [civilian] workers,” a nearby footnote then cites Bothe, et al., for the proposition that “[it] is . . create a risk of too much reliance on superior attack judgments.”. The Manual should not suggest, however—as this does—that proportionality is satisfied as long as no more force is devoted to the task “than is necessary to achieve the objective.”.
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