Issues Relating to the Evolution of Proportionality in Attack

The principle of proportionality in attack is a fundamental tenet of International Humanitarian Law (IHL), guiding the conduct of hostilities and the use of force during armed conflict. As conflicts evolve and new challenges emerge, the application of proportionality has faced several issues and complexities. In this comprehensive analysis, we will explore the evolution of proportionality in attack, the challenges it encounters, and potential strategies for addressing these issues.

1. Understanding Proportionality in Attack

Proportionality in attack is enshrined in Article 51(5)(b) of Additional Protocol I to the Geneva Conventions of 1949, which states that "an attack which 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, is prohibited." This principle requires parties to armed conflict to balance the anticipated military advantage of an attack against the potential harm to civilians and civilian objects, ensuring that the expected collateral damage is not excessive compared to the military objective sought.

Proportionality in attack encompasses several key elements:

• Anticipated Military Advantage: Parties to conflict must assess the anticipated military advantage of an attack, considering factors such as the strategic importance of the target, the nature of the military objective, and the potential impact on the overall conduct of hostilities.

• Incidental Harm to Civilians: Parties must evaluate the potential harm to civilians and civilian objects that may result from the attack, including casualties, injuries, and damage to infrastructure, and take feasible precautions to minimize civilian harm.

• Excessive Collateral Damage: The principle prohibits attacks where the expected collateral damage to civilians or civilian objects would be excessive in relation to the military advantage anticipated, emphasizing the need to avoid disproportionate harm to civilian populations.

2. Evolution of Proportionality in Attack

The evolution of proportionality in attack reflects changing dynamics in armed conflict, developments in military technology, legal interpretations, and humanitarian considerations. Several key trends and issues have shaped the evolution of proportionality:

• Technological Advancements: The proliferation of advanced weaponry, precision-guided munitions, and targeting systems has altered the conduct of modern warfare, allowing for more accurate and targeted strikes on military objectives. However, these advancements also raise concerns about the potential for disproportionate harm to civilians if not used responsibly and in accordance with IHL.

• Urbanization of Conflict: Armed conflicts increasingly occur in urban environments, where civilian populations are densely concentrated, infrastructure is fragile, and collateral damage can have far-reaching consequences. Proportionality in urban warfare requires parties to carefully assess the potential impact of military operations on civilian populations and take measures to minimize harm.

• Complexity of Non-State Actors: The involvement of non-state armed groups, terrorist organizations, and other non-traditional actors in armed conflicts presents challenges for applying proportionality in attack. These groups often operate within civilian areas, using human shields and blending into the civilian population, making it difficult for parties to conflict to distinguish between combatants and non-combatants.

• Legal Interpretations and Jurisprudence: The interpretation and application of proportionality in attack have evolved through legal judgments, rulings, and decisions by international and national courts, tribunals, and other bodies. Jurisprudence has clarified the scope of the principle, emphasized the need for a balancing test between military advantage and civilian harm, and addressed issues such as the assessment of anticipated harm, the calculation of proportionality, and the role of precautionary measures.

3. Challenges Relating to Proportionality in Attack

Despite its importance in minimizing civilian harm during armed conflict, proportionality in attack faces several challenges and complexities:

• Subjectivity and Uncertainty: Assessing the anticipated military advantage and potential harm to civilians in advance of an attack is inherently subjective and uncertain, as it involves predicting future events, evaluating competing interests, and making difficult decisions under pressure. Parties to conflict may differ in their interpretations of what constitutes a legitimate military objective and what level of collateral damage is considered excessive.

• Lack of Information and Intelligence: Parties to armed conflict may have limited information and intelligence about the location of military objectives, the presence of civilians, and the potential consequences of an attack. Inaccurate or incomplete information can lead to misjudgments and errors in assessing proportionality, increasing the risk of civilian casualties and damage to civilian infrastructure.

• Challenges in Urban Warfare: Urban warfare presents unique challenges for applying proportionality in attack, given the presence of civilian populations, the complexity of the urban environment, and the difficulty of distinguishing between combatants and non-combatants. Parties to conflict must navigate these challenges while adhering to IHL principles and minimizing harm to civilians.

• Use of Explosive Weapons in Populated Areas (EWIPA): The use of explosive weapons with wide-area effects, such as artillery shells, airstrikes, and heavy artillery, in populated areas raises concerns about the potential for indiscriminate harm to civilians and civilian infrastructure. Parties to conflict must balance the military necessity of using such weapons with the risk of disproportionate harm to civilian populations.

4. Strategies for Addressing Challenges

Addressing the challenges related to proportionality in attack requires a multifaceted approach involving legal, operational, and policy measures:

• Enhanced Training and Education: Parties to armed conflict, including military personnel, commanders, and policymakers, should receive training and education on the principles of proportionality in attack, including how to assess military objectives, evaluate potential harm to civilians, and apply IHL standards in the conduct of hostilities.

• Improved Information and Intelligence Sharing: Enhancing information-sharing mechanisms, intelligence cooperation, and situational awareness among parties to conflict can facilitate more informed decision-making and reduce the risk of errors in assessing proportionality. Transparency and accountability in the collection and dissemination of information are essential for promoting compliance with IHL principles.

• Strengthened Precautionary Measures: Parties to conflict should take