- Proportionality (law)
Proportionality is a principle in law which covers two distinct (although related) concepts. Within municipal (domestic) law it is used to convey the idea that the punishment of an offender should fit the crime. Under international humanitarian law governing the legal use of force in an armed conflict, proportionality and distinction are important factors in assessing military necessity.
Within law, the principle of proportional justice is used to describe the idea that the punishment of a certain crime should be in proportion to the severity of the crime itself. In practice, systems of law differ greatly on the application of this principle. In some systems, this was interpreted as lex talionis, (an eye for an eye). In others, it has led to a more restrictive manner of sentencing. For example, all European Union countries have accepted as a treaty obligation that no crime warrants the death penalty, whereas some other countries in the world do use it.
The incidental (i.e., unintended) harm caused to civilians or civilian property must be proportionate and not excessive in relation to the concrete and direct military advantage anticipated by an attack on a military objective.
Luis Moreno-Ocampo was the Chief Prosecutor at the International Criminal Court who investigated allegations of War Crimes during the 2003 invasion of Iraq. He published an open letter containing his findings; in a section titled "Allegations concerning War Crimes", he elucidates this use of proportionality:
Under international humanitarian law and the Rome Statute, the death of civilians during an armed conflict, no matter how grave and regrettable, does not in itself constitute a war crime. International humanitarian law and the Rome Statute permit belligerents to carry out proportionate attacks against military objectives, even when it is known that some civilian deaths or injuries will occur. A crime occurs if there is an intentional attack directed against civilians (principle of distinction) (Article 8(2)(b)(i)) or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality) (Article 8(2)(b)(iv). Article 8(2)(b)(iv) criminalizes:
Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;
Article 8(2)(b)(iv) draws on the principles in Article 51(5)(b) of the 1977 Additional Protocol I to the 1949 Geneva Conventions, but restricts the criminal prohibition to cases that are "clearly" excessive. The application of Article 8(2)(b)(iv) requires, inter alia, an assessment of:
(a) the anticipated civilian damage or injury;
(b) the anticipated military advantage;
(c) and whether (a) was "clearly excessive" in relation to (b).
- ^ a b Article 52 of Additional Protocol I to the Geneva Conventions provides a widely-accepted definition of military objective: "In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage", Luis Moreno-Ocampo OTP letter to senders re Iraq 9 February 2006. page 5, footnote 11).
- ^ Shamash, Hamutal Esther, "How Much is Too Much? An Examination of the Principle of Jus in Bello Proportionality" . Israel Defense Forces Law Review, Vol. 2, 2005-2006 Available at SSRN: http://ssrn.com/abstract=908369
- ^ Luis Moreno-Ocampo OTP letter to senders re Iraq 9 February 2006. "Allegations concerning War Crimes" Pages 4,5
- Françoise Hampson military necessity
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