1. Introduction
The principle of proportionality is one of the fundamental principles of international humanitarian law (IHL) – a body of law that, in recent years, has been significantly clarified and developed by international criminal tribunals and courts. Many issues have been covered in the extensive case law of the international institutions, including the International Criminal Tribunal for the former Yugoslavia (ICTY).Footnote 1 One such issue is the principle of proportionality in armed conflicts. However, as illustrated below, the ICTY, when dealing with the principle of proportionality, has until quite recently merely set out the law: no evidentiary findings had been made. The law as set out was never properly applied (albeit in retrospect) to the situations on which the tribunal was to pass judgment. Whilst in cases such as Galić elaborate findings were made as to the state of IHL with regard to the principle of proportionality at the time the alleged crimes took place, Gotovina represents the first actual application of this principle by the ICTY to date.Footnote 2 However, its application by the Gotovina trial chamber has been subject to fierce criticism by both military lawyers and academics, and the judgment was recently overturned on appeal without further guidance by the ICTY appeals chamber on how the principle should be dealt with in the courtroom. Consequently, no case law exists to which the International Criminal Court (ICC) – which has jurisdiction over the war crime of causing excessive incidental death, injury or damageFootnote 3 – could turn were it to be seized of a case concerning alleged disproportionate attacks.
This article highlights the ways in which the principle of proportionality has been dealt with in international criminal law until now, and examines how the principle could be dealt with in the future. It does so first by discussing briefly the principle of proportionality in armed conflict itself. It then addresses some problems that are inherent in war crimes trials, in which IHL is to be applied before courts,Footnote 4 more specifically courts at the international level.Footnote 5 The article then focuses on the general challenges in applying the principle of proportionality in international criminal trials. The following section discusses the extent to which the principle of proportionality has been used before, and by, judges at the international level, the ICTY in particular. By referring to examples from the relatively few cases that concern the conduct of hostilities, this part of the article illustrates that the principle itself has not been properly applied; and thus the problems that accompany its application in the field have not been properly addressed. Discussed next is the role that the principle of proportionality can play before the ICC by focusing on some of the legal difficulties that could arise from the way in which the issue of disproportionate attacks has been included in the ICC Statute. Examined thereafter are the practical difficulties that follow from the institutional reality with which the ICC is faced, followed by some concluding remarks.
2. The Fundamental Principle of Proportionality
Proportionality as a concept or principle can be found in many fields of law. For example, in public international law it forms part of the law relating to self-defence. For its part, the principle of proportionality in armed conflict is one of the fundamental principles of IHL.Footnote 6 It became part of positive IHL with its codification in the First Additional Protocol to the Geneva Conventions of 1949.Footnote 7 The principle itself covers all military measures taken by belligerents, and requires these measures to be proportionate to the aim that the belligerents seek to accomplish.Footnote 8 The military advantage to be obtained by an operation must outweigh the harm to civilians and/or damage to civilian objects that is likely to result from this military action.Footnote 9 Whilst the principle covers all military actionsFootnote 10 – including, for example, the institution of blockadesFootnote 11 – the way in which it has been incorporated into positive law refers only to the expected results of attacks.Footnote 12 This has resulted in the principle generally being described solely as the issue of collateral damage to civilians and civilian objects resulting from attacks against military targets.Footnote 13
The principle of proportionality has to be seen in close connection with the principles of distinction and precaution. The principle of distinction, as well as the principle of proportionality, are part of the same legal regime that protects civilians; as such, they articulate one another.Footnote 14 Proportionality only comes into play if the principle of distinction is adhered to. When deciding to launch an attack, it must first have been determined that the object of the attack was a legitimate target. Indeed, there would be no relevance for the principle of distinction if no precautions were to be taken in the identification of which objects were to be targeted.Footnote 15 The principles of proportionality and precaution are similarly related. Precautions must be taken in order to limit the expected incidental damage to civilian objects. An attack must be aborted or suspended if it becomes apparent to the attacker that the attack may be expected to cause incidental damage that would be excessive in relation to the concrete and direct military advantage anticipated.Footnote 16 Furthermore, precautions must be taken with regard to the manner in which the strike is going to be conducted, which includes the choice of weapons used to carry out the attack. Where there is a choice of different means or methods of attack, the attacker should choose the option that would avoid or minimise incidental damage.Footnote 17 Arguably, then, an attack that would otherwise have resulted in proportionate collateral damage may be considered disproportionate if other means were available to the attackers that would have provided the same military advantage, yet resulted in less collateral damage.Footnote 18 In other words, failing to take precautions may determine the outcome of the analysis as to whether an attack complied with the principle of proportionality. Notwithstanding the foregoing, as a consequence of the way in which the principle of proportionality is framed in Articles 51 and 57 of Additional Protocol I, a violation of the principle will also be a violation of the principles of distinction and precaution. The principle of proportionality, as included in the Protocol, is thus framed as a subsidiary principle.
The aspects that require balancing on either side of the equation, namely military advantage and expected incidental damage, are hard to compare and difficult to assess – not least because it is an assessment of their future effects – and raise many questions.Footnote 19 The imprecise wording of the prohibition to cause incidental damage that would be ‘excessive in relation to the concrete and direct military advantage anticipated’ is a result of the compromise needed for the delegates negotiating the Additional Protocols to reach a consensus.Footnote 20 Different opinions also existed amongst the drafters of Article 57,Footnote 21
mainly related to the very heavy burden of responsibility imposed by this article on military commanders, particularly as the various provisions are relatively imprecise and are open to a fairly broad margin of judgment. These concerns were reinforced by the fact that, according to Article 85 …, failure to comply with the rules of Article 57 may constitute a grave breach and may be prosecuted as such. Those who favoured a greater degree of precision argued that in the field of penal law it is necessary to be precise, so that anyone violating the provisions would know that he was committing a grave breach.
Indeed, as W Hays Parks has observed, the principle of proportionality would by ‘American domestic law standards … be constitutionally void for vagueness’.Footnote 22
As was held by William Fenrick – as well as in the (in)famous Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign against the Federal Republic of Yugoslavia – the problem is not whether or not the principle exists, ‘but what it means and how it is to be applied’.Footnote 23 The principle is therefore ‘more easily stated than applied in practice’.Footnote 24 Both Fenrick and the Report refer to the problematic application of the principle of proportionality during combat operations.Footnote 25 A proportionality test for combat operations must be made on a case-by-case basis because the relative elements that must be balanced may differ in each situation. Legal evaluations may lead to different conclusions as to the proportionality of an attack, depending on the interpretation or weight given to each of the values at stake.
Objective standards for the appraisal of the intended military advantage and the expected collateral damage are nearly non-existent,Footnote 26 making the question of what constitutes incidental damage one of the most controversial issues when assessing the legality of possible disproportionate attacks.Footnote 27 Notwithstanding the problems of applying the principle in the field, it is also very difficult to apply the principle in retrospect: to prosecute alleged violations of the principle and to judge whether, in certain operations, the principle was, or was not, adhered to. These difficulties are compounded by the general challenges when dealing with alleged violations of the laws of armed conflict in the courtroom. These difficulties and challenges are discussed next: first generally, and then specifically in relation to the ICTY and to the ICC, respectively.
3. Applying International Humanitarian Law in the Courtroom
3.1 International Humanitarian Law and International Criminal Law
When states first drafted rules to regulate warfare, these rules were not envisioned to be applied in a courtroom. IHL was not, and still is not, intended to be the international equivalent of a comprehensive national criminal code.Footnote 28 It has a rather different purpose from that of a criminal code. IHL aims to protect those who are not, or are no longer, taking part in hostilities: the sick and wounded, prisoners of war and civilians. In fulfilling this aim of protection, the drafters of the rules of IHL placed certain restrictions on warring parties, while at the same time acknowledging the realities of war. Moreover, it is a body of preventive law that in practice – on the battlefield – is usually applied by non-lawyers.Footnote 29 Its application thus requires the content to be of a certain simplicity. The rules of IHL, such as those dealing with conduct of hostilities, therefore differ significantly from the types of provision that are usually included in a criminal code. By way of example, the former, as opposed to the latter, do not include elements of crimes.
In addition to having been created to guide warring states in their conduct of hostilities, IHL also serves to determine state responsibility for the way in which the states conducted their military operations. Conversely, it was not created for evaluating the individual criminal responsibility of the commanders for unlawful conduct. This also explains why the rules of IHL include highly subjective notions, such as ‘military necessity’, ‘excessive damage’ and ‘military advantage’.Footnote 30 While such notions are already difficult to apply correctly during combat, the fact that they are hard both to qualify and to quantify provides the flexibility required to enable their use during hostilities. However, applying them after the fact, in a courtroom, is a struggle because these notions involve value-based and individual judgements made at the time of the attack.Footnote 31
On the battlefield, the conduct of the fighting parties is best governed by rules that are simple and allow the commander a certain level of discretion. However, fair criminal proceedings demand, first and foremost, that the parties in a criminal trial have recourse to clear rules that describe criminal conduct in a strict manner.Footnote 32 For a conviction to be entered, assessment must be made as to whether the elements of an alleged crime have been met. In the ad hoc tribunals, the judges themselves had to develop the elements for the alleged crimes on which they were tasked to pronounce, albeit aided by the parties who made proposals in each case where a ‘new’ violation was addressed. By contrast, because the states that negotiated the ICC Statute did not want to give the judges of the ICC the same freedom in establishing the elements of crimes for the crimes within the court's jurisdiction, the parties before the ICC, as well as its judges, have recourse to elements of crimes that were drafted by a special working group, and were subsequently adopted by the Assembly of States Parties.Footnote 33
As noted above, international criminal law (ICL) has, through the numerous judgments of the international tribunals and courts, contributed to the development and clarification of the substance of IHL.Footnote 34 Fenrick has aptly described that the judgments of the ad hoc tribunals have added ‘flesh to the bare bones of treaty provisions or to skeletal legal concepts’ of IHL.Footnote 35 Among the rules of IHL that were clarified are those that relate to the principle of proportionality.
The findings in these ad hoc tribunal judgments are not binding on states, however, but are nevertheless of great influence for the interpretation of IHL.Footnote 36 This is demonstrated by references made by states, as well as national courts, to the international case law, and by the impact that this case law has had on the negotiations of international treaties, including the ICC Statute.Footnote 37 Perhaps the best examples of the impact of the tribunals on IHL are the extensive references made to their case law in the study on customary IHL by the International Committee of the Red Cross (ICRC Study).Footnote 38
Nevertheless, ICL is not an autonomous body of law that happens to be based on IHL, but is instead accessorial to the latter. War crimes law should therefore logically be interpreted in line with IHL, the very law upon which the violations are based.Footnote 39 Be that as it may, as IHL and ICL have different objectives, this is not always easy: the former aims to regulate warfare and thereby mitigate the suffering resulting from it,Footnote 40 whilst the latter seeks to counter impunity of those who have violated the rules of IHL in such a manner as to give rise to individual criminal responsibility.Footnote 41
This results in a different approach to, for example, the question of who can legitimately be targeted. In striving to limit suffering in times of armed conflict, IHL has an inbuilt presumption of protection: only combatants and those who take a direct part in hostilities may be targeted. In case of doubt about the targetable status of a person or object, IHL states that the person or object concerned is to be considered as protected, and thus cannot be attacked.Footnote 42 As ICL concerns the prosecution of persons, one of the essential principles of criminal law thus forms part of ICL, namely the presumption of innocence.Footnote 43 As a corollary of this principle, the prosecution has to prove beyond reasonable doubt that the accused has committed the crimes as charged. In doing so, another corollary of this principle, in dubio pro reo, requires that ‘the accused is entitled to the benefit of doubt as to whether the offence has been proven’.Footnote 44 In a case dealing with unlawful attack charges, such as the crime of directing an attack at civilians, the prosecution has to prove that the alleged victims were not combatants or civilians directly participating in hostilities and therefore were, at the time of the attack, protected by IHL. The ICTY has found that in such a case the prosecution ‘must show that a reasonable person could not have believed that the individual he or she attacked was a combatant’.Footnote 45 Where IHL requires an arms bearer to consider someone as protected in case of doubt, this IHL presumption of protection – for obvious and understandable reasons – works in reverse in ICL,Footnote 46 causing the IHL aim of protecting those who are not, or no longer taking part in hostilities to clash with the accused's right to a fair trial under ICL.
3.2 General Challenges in the Adjudication of Violations of IHL
Serious violations of IHL can only occur during a situation of armed conflict,Footnote 47 which is usually a situation of chaos. During an armed conflict, of course, certain war crimes may be very well planned and organised, and thus be far from ‘chaotic’ – the Holocaust being a case in point. However, violations of the law relating to the conduct of hostilities involve situations of actual combat, making inherently difficult the prosecution of the alleged perpetrators and the judging of their behaviour. The ‘fog of war’ also clouds subsequent criminal trials.
Challenges occur first with regard to the determination of the facts, and the knowledge and intent of the accused at the time of the alleged violation. Documentary evidence often does not exist, or is difficult to obtain.Footnote 48 Indeed, states have shown themselves to be unwilling to hand over sensitive information, citing reasons of national security.Footnote 49 Moreover, whilst cases before the ICTY dealt mainly with professional armies – and were therefore document heavy – the cases currently before the ICC for the most part concern militias. Few documents, if any, exist as to decisions taken or orders given. Much of the evidence is obtained through witnesses, but witness testimony has inherent problems, partly as a result of the lapse of time between the moment the alleged crime took place and the testimony, the nature of the crimes, and various psychological reasons that influence the credibility of this type of evidence.Footnote 50
Furthermore, individual criminal responsibility only arises when the attacker intended to engage in the conduct knowing that the outcome of an attack (or at least an outcome contrary to IHL) would occur.Footnote 51 Mistakes or faulty weaponry can result in outcomes that IHL aims to prevent, but these outcomes do not necessarily constitute violations of IHL as they were not intended by the attacker. Even though the attacker would normally know that a weapon system could fail and miss a target, he would not necessarily have known that the system would fail in this particular instance.Footnote 52 Additionally, the United States Military Tribunal in Nuremberg developed the so-called ‘Rendulic rule’, according to which one should not lightly second-guess the reasonableness of battlefield decisions.Footnote 53 This rule is reflected in the declarations made by several states to Additional Protocol I. For example, Canada's statement of understanding in relation to provisions dealing with the general protection against the effects of hostilities, highlightsFootnote 54 that
[i]t is the understanding of Canada that, in relation to Articles 48, 51 to 60 inclusive, 62 and 67, military commanders and others responsible for planning, deciding upon or executing attacks have to reach decisions on the basis of their assessment of the information reasonably available to them at the relevant time and that such decisions cannot be judged on the basis of information which has subsequently come to light.
That the information reasonably available at the time should be considered in reviewing decisions to engage a certain target was also stated by the ICTY in Galić,Footnote 55 and was referred to as being indicative of state practice in the ICRC Study.Footnote 56
Moreover, not everyone working in international criminal justice is an experienced military or IHL lawyer, which makes prosecuting and adjudicating war crimes all the more daunting. This is especially so when dealing with conduct of hostilities cases, which require an understanding of military operations.Footnote 57 As Nobuo Hayashi has observed, while judges need not have been soldiers themselves, some degree of familiarity with, and sensitivity to, the nature of the military profession is essential for realistic judicial decisions.Footnote 58
Furthermore, successfully prosecuting international crimes requires the actors to have a different set of skills from that of a military lawyer. International criminal lawyers have to be able to deal with very large amounts of evidence, a vast volume of procedural rules and obtaining evidence through the examination of witnesses, as opposed to the military lawyer who has to deliver quick advice that takes into account the situation on the battlefield as it was at the time, or the military commander who has to decide on launching an attack or refraining from doing so. The parties involved in international criminal justice cannot rely solely on expert witnesses for their own information on military issues, such as weapon systems,Footnote 59 for the simple reason that these witnesses must also be asked relevant questions, and the correct legal analysis should be made based on the evidence given.Footnote 60
Of note, in particular, with regard to understanding military operations for conduct of hostilities cases is the Gotovina trial judgment. A group of military and academic experts has said that it includes legal conclusions that ‘lack the appropriate measure of operational sophistication that is necessary for understanding both how to apply the law and the consequences of that legal application to the implementation of IHL in future operations’,Footnote 61 conflating the criminal standard with the operational standard in IHL.Footnote 62 These and other aspects of this judgment will be dealt with in more detail below.
4. The Principle of Proportionality as Applied before the ICTY
4.1 Background
A search for ‘principle of proportionality’ or ‘proportionality’ (or related search terms, such as ‘(dis)proportionate’, ‘excessive’ and ‘proportional’) in the digital database of the ICTYFootnote 63 will result in numerous hits. Upon closer examination, however, one can see that the majority of these hits relate to proportionality of prison sentences, issues dealing with provisional release, and the question of to what extent pre-trial (or pre-judgment) detention may be considered proportionate. The humanitarian law principle of proportionality is dealt with in only a few cases.Footnote 64
This is due in part to the relatively limited number of cases dealing with conduct of hostilities and the ICTY's subject matter jurisdiction. The ICTY Statute lists war crimes as ‘grave breaches of the Geneva Conventions of 1949’ (Article 2) and ‘violations of the laws or customs of war’ (Article 3). As the regulation of conduct of hostilities was not yet included in 1949, and as the grave breaches regime of the four Geneva Conventions of 1949 is made up of an exhaustive list in Articles 50, 51, 130 and 147 respectively of the Conventions,Footnote 65 it may be clear that a violation of the principle of proportionality would not fall under Article 2 of the ICTY Statute. The crimes under Article 3 of the Statute are limited to serious violations of those norms of IHL that, at the time of the conflict in the former Yugoslavia, had beyond any doubt reached the status of customary international law.Footnote 66 As such, the tribunal has not considered serious violations of the principle of proportionality to constitute a separate crime. Quite the contrary, in fact: within its case law, such violations merely serve as evidence of attacks directed against civilians or against civilian objects.Footnote 67
The ways in which the principle of proportionality has been addressed in the ICTY's case law can be divided into three types:
(i) those cases in which a legal analysis of what constitutes the principle was made, but – because of the facts of the case – the principle was not actually applied to the evidenceFootnote 68 to determine whether a disproportionate attack had taken place;
(ii) the cases that make reference to disproportionate or excessive use of force, but contain no explanation of how the chamber arrived at this conclusion or, where a finding was made, do not appear to have appropriately balanced the expected military advantage against the expected collateral damage;
(iii) the Gotovina case, in which the trial chamber applied the principle to the evidence and in which a form of evaluation of the balancing test was carried out, but which judgment was then quashed by the appeals chamber. These three types of case are discussed next.
4.2 Stating and Clarifying the Principle, but not Applying It
The ICTY first addressed the principle of proportionality in Kupreškić, a case that concerned an attack on the village of Ahmići,Footnote 69 when the trial chamber held that ‘any incidental (and unintentional) damage to civilians must not be out of proportion to the direct military advantage gained by the military attack’.Footnote 70 A few years later, in 2003, when assessing the responsibility of General Galić for crimes committed by the Bosnian-Serb forces during the siege of Sarajevo, the trial chamber concerned heldFootnote 71 that
[o]nce the military character of a target has been ascertained, commanders must consider whether striking this target is ‘expected to cause incidental loss of life, injury to civilians, damage to civilian objectives or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated’. If such casualties are expected to result, the attack should not be pursued. The basic obligation to spare civilians and civilian objects as much as possible must guide the attacking party when considering the proportionality of an attack.
The customary status of the principle, and what it entails, was thus set out correctly and clearly in the aforementioned case, as well as in several subsequent cases, such as Strugar,Footnote 72Martić,Footnote 73 and Dragomir Milošević.Footnote 74 The ICRC Study, which in general relies heavily on the case law of the ad hoc tribunals, carefully lists all the statements by the ICTY on the principle of proportionality.Footnote 75 As such, the tribunal's authoritative findings on the law have been valuable; this is especially so when they concern clarifications, such as the fact thatFootnote 76
[i]n determining whether an attack was proportionate it is necessary to examine whether a reasonably well-informed person in the circumstances of the actual perpetrator, making reasonable use of the information available to him or her, could have expected excessive civilian casualties to result from the attack.
Be that as it may, as shown below, the majority of these findings are no more than obiter dicta, as hardly any of the chambers concerned actually applied this balancing test to the facts of the case. In Strugar, for example, the trial chamber clearly sets out that the principle of proportionality did not arise in that case as no military objects were located in the old town of Dubrovnik, which was attacked by Serbian forces.Footnote 77
4.3 Making Findings without Applying the Principle
Another case that concerned, inter alia, the attack on Ahmići, was Blaškić. General Blaškić was held to have ordered the use of heavy weapons to seize villages inhabited mainly by civilians. The trial chamber found that ‘the devastation visited upon the town was out of all proportion with military necessity’ and that Blaškić's orders ‘had consequences out of all proportion to the military necessity and [he] knew that many civilians would inevitably be killed and their homes destroyed’.Footnote 78 It did so, however, after first having found that there ‘was no military installation, fortification or trench in the town on that day’, nor were there reports of ‘the presence of soldiers from the Bosnia-Herzegovina army’.Footnote 79 In such a situation without military objects, clearly, there would have been no need to refer to the proportionality of the attack.Footnote 80
Similarly, in two cases involving crimes committed by Serbian forces in Kosovo – Milutinović and Others and Đorđević – the trial chambers refer on numerous occasions to the use of disproportionate and excessive force.Footnote 81 Yet none of these findings appear to follow from a proportionality analysis as elucidated by the Galić trial chamber. Understandably so, because these cases do not concern charges of unlawful attack, but rather deal with the murder of detained persons and the deliberate destruction of civilian houses. The reference to disproportionate and excessive use of force, albeit somewhat confusing, should thus be understood as generically referring to the way in which the Serbian forces used force and not its legal meaning pursuant to Articles 51 and 57 of Additional Protocol I.
The Đorđević trial chamber did discuss the principle of proportionality in reaction to submissions made by Đorđević's defence team. After setting out the law, the trial chamber simply notedFootnote 82 that the Serbian forces had used force
in a way that produced grossly excessive civilian casualties including women and children, destroyed homes, crops and livestock, entire villages, and religiously and culturally significant property, and forced the displacement of hundreds of thousands of Kosovo Albanians over a period of less than three months.
Besides referring to the resulting damage of the overall Kosovo campaign rather than any anticipated damage, the trial chamber did not try to balance the casualties and damage to civilian objects against a possible military advantage. It made clear that it did not need to do so as ‘[t]he evidence weighs convincingly against a finding that these attacks were either proportionate or militarily necessary, even in those areas where there was a KLA presence’.Footnote 83 As such, in its view, no actual proportionality analysis needed to be made in this case.
As mentioned earlier, the Galić trial chamber extensively discussed the law relating to the principle of proportionality. Nevertheless, it applied the principle only once to the facts. It is suggested here, however, that this application was erroneous since in that situation the issue of proportionality could not in fact have arisen. The incident concerned a recreational football match in Sarajevo, held on a parking lot surrounded by tall buildings. The match, in which some members of the Bosnian Muslim forces took part, was watched by a crowd of approximately 200, consisting of both civilians and soldiers. Evidently, neither the soldiers nor the civilians were at the time directly participating in hostilities. Naturally, the soldiers themselves remained legitimate targets but, owing to the circumstances, it was not possible to see who was and who was not targetable. The trial chamber noted that none of the evidence suggested that the Serbian forces knew that soldiers were amongst the players and spectators at the football match, but went on to considerFootnote 84 that
had the SRK troops been informed of this gathering and of the presence of ABiH soldiers there, and had [they] intended to target these soldiers, this attack would nevertheless be unlawful. Although the number of soldiers present at the game was significant, an attack on a crowd of approximately 200 people, including numerous children, would clearly be expected to cause incidental loss of life and injuries to civilians excessive in relation to the direct and concrete military advantage anticipated.
It would not have been necessary to make this observation. The Bosnian-Serb forces were not able to make a distinction between civilians and the soldiers, first, because they could not see the location that was being targetedFootnote 85 and, second, because of the means used.Footnote 86 Therefore, the group consisting of spectators and football players was targeted as a whole. The attack in itself was thus indiscriminate on that basis, irrespective of the anticipated incidental damage.
4.4 The Case of Gotovina
The first occasion on which the principle of proportionality formed – and, given the impending closure of the tribunal, the only time it will form – a key issue in a case before the ICTY was in Gotovina. However, the trial chamber's findings on targeting proved to be such a vital part of the case that on appeal, after quashing the trial chamber's finding on the indiscriminate nature of the attacks in question, the appeals chamber fully acquitted the two remaining accused. General Gotovina and his two co-accused were charged with having committed crimes during Operation Storm, a military campaign that took place in the summer of 1995. During this summer the Croatian army, Hrvatska Vojska (HV), in a matter of a few days, reclaimed the Krajina region of its territory from the self-proclaimed Republic of Serbian Krajina. The accused were charged with having orchestrated a campaign to drive the Serbs from the Krajina region. Part of that campaign formed attacks on Knin, Benkovac, Obrovac and Gracac (referred to in the judgment as ‘the Four Towns’), which were charged as ‘the shelling of civilians and cruel treatment [and] unlawful attacks on civilians and civilian objects’.Footnote 87
4.4.1 The 200-Metre Rule
The trial chamber was tasked with assessing the legality of the artillery attacks on the Four Towns. In discharging this task, it noted that it was well aware of the difficulties with which it was faced in assessing retrospectively these attacks.Footnote 88 It devised what has been referred to as the ‘200-metre rule' for assessing whether attacks were directed against military objects. The trial chamber also made a proportionality analysis in dealing with the attack on the supreme commander of Serbian Krajina. Unfortunately, however (at least in the view of the author), the trial chamber applied the proportionality balancing test only to consider the legality of this particular strike, and not necessarily in the best way possible.
Setting a standard?
In relation to the artillery campaign against Knin alone, the HV was found to have fired at least 900 rockets and shells on the city within two days.Footnote 89 Naturally, the accused claimed that all these projectiles were fired at legitimate targets. With regard to moving military objects, such as military personnel and tanks,Footnote 90 the trial chamber found that certain attacks could not be justified by reference to those objects.Footnote 91 At the same time, it was clear that military objects, which could be legitimately attacked, existed within the city.
Because the evidence indicated that the HV had prepared targeting lists that mentioned many of these objects and it thus appeared (at least prima facie) that the various strikes were directed at military objects, the trial chamber could therefore have assessed the legality of the strikes with reference to the principle of proportionality. However, it chose instead to evaluate whether the artillery had been aimed at legitimate targets. Doing this by reviewing the factual evidence of the actual impact of the strikes is obviously very difficult. Not every civilian building that was hit would need to have been a deliberate target. The trial chamber therefore reviewed the expert evidence about the accuracy of the artillery used by the HV and it ‘consider[ed] it a reasonable interpretation of the evidence that those artillery projectiles which impacted within a distance of 200-metres of an identified artillery target were deliberately fired at that artillery target’.Footnote 92
Applying this 200-metre rule to the evidence, the trial chamber found that too many shells and rockets had landed outside the ‘legal’ parameters. Consequently, the trial chamber found that the HV's shelling of Knin ‘constituted an indiscriminate attack on the town and thus an unlawful attack on civilians and civilian objects’.Footnote 93 These findings have been heavily criticised by academics and by military lawyersFootnote 94 because ‘Gotovina could not have known that his indirect fires would be judged after the fact by this impossibly stringent standard of accuracy’.Footnote 95 Moreover, it would upset the IHL framework ‘by creating incentives for both attackers and defenders to choose means and methods of warfare that inevitably will increase the dangers of war for noncombatants in towns and cities’.Footnote 96 On appeal, the appeals chamber concluded that the trial chamber had erred in using the 200-metre rule as this standard was not based on the evidence it received.Footnote 97
The critiques are not all justified, however. First, the trial chamber did not apply the 200-metre assessment to all situations. It had found in favour of the accused that certain locations could be considered military objects, even in some situations where it would be questionable whether the requirements for a military object were fulfilled. Furthermore, in situations where no evidence was available as to the objects being attacked, it had held that no review could be conducted.Footnote 98 Second, the critics consider the potential effect that the judgment could have on future military operations, whereas a trial chamber of the ICTY is required to determine the individual criminal responsibility of the accused in a particular case (for alleged crimes that took place in the past). Its findings do not have any binding effect – not even on other chambers within the same tribunal, let alone on other international and/or national courts.Footnote 99 States may give standing to the judgments and transfer certain findings, previously not part of treaty law or custom, into treaties or, by including it in their doctrine and acting accordingly, to the realm of customary international law. Unless this happens, the use of a 200-metre standard to consider the culpability of a Croatian general for his actions in a 1995 military operation will not, and should not, affect any current military operation involving the use of artillery.
It appears that the trial chamber, faced with evidence that suggested a campaign to evict the Serbian population from the Four Towns,Footnote 100 merely sought to find a way to determine retrospectively the intention of the attackers.Footnote 101 That the trial chamber never meant to relate exactly the 200 metres to the accuracy of the weapons used follows from the fact that artillery has a fault margin in the shape of an ellipse, and not a circle.
Be that as it may, this author also disagrees with the 200-metre rule, but mainly because he is not in favour of the assigning of any ‘metre standard’. Mistakes are possible and shells may thus accidentally land outside a certain ‘legitimate area’.Footnote 102 The assessment of the lawfulness of the strikes should be made instead on the basis of the information available to the attacker at the time, as well as the intent of the attacker. If, at the time of targeting, a 200- (or 400-) metre radius were to be applied, it would effectively create a free fire zone around targets in built-up civilian areas. In a small city such as Knin, stretching out over only a couple of square kilometres, the existence of a number of military objects within the city would effectively allow for the city to be targeted as a whole. Such an approach would be contrary to Article 51(5)(a) of Additional Protocol I, which lists as indiscriminate an attack ‘which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects’. More importantly for the present discussion, creating a ‘zone’ of 200 metres around all military objects disregards the attacker's obligation to take proportionality into account. It essentially makes void any analysis of the expected incidental damage.
Consequently, this case provides a good example of the challenges involved in the adjudication of (alleged) conduct of hostilities violations, discussed above.Footnote 103 Rather than attempting to determine the accused's intent to attack civilians by looking at where the projectiles impacted, the trial chamber could have assessed the likelihood that the shells and rockets would impact on objects other than the legitimate targets. Using the reasonable commander standard as described in Galić, the trial chamber could then have considered whether the risk of causing excessive collateral damage was too high compared with the anticipated military advantage. But, as will now be discussed, the trial chamber made only one proportionality determination.
4.4.2 Finding on Proportionality: Attacks on Martić
The only occasion on which the trial chamber discussed whether an attack had been proportionate was in dealing with the attack on the political leader and supreme commander of the Serbian Army of Krajina, Milan Martić. It was satisfied that ‘firing at his residence could disrupt his ability to move, communicate, and command and so offered a definite military advantage, such that his residence constituted a military target’.Footnote 104 In addition, the HV had also fired at a different location where it believed Martić to be present, referred to as ‘R’. However, Martić's residence was located within a civilian apartment building, which was designated by the HV as a target as a whole.Footnote 105 Moreover, both locations were situated in a civilian residential area.Footnote 106 The trial chamber considered the expert evidence on accuracy, and on the blast and fragmentation radius of artillery weapons,Footnote 107 and heldFootnote 108 that
[a]t the times of firing, namely between 7:30 and 8 a.m. and in the evening on 4 August 1995, civilians could have reasonably been expected to be present on the streets of Knin near Martić's apartment and in the area marked R on P2337. Firing twelve shells of 130 millimetres at Martić's apartment and an unknown number of shells of the same calibre at the area marked R on P2337, from a distance of approximately 25 kilometres, created a significant risk of a high number of civilian casualties and injuries, as well as of damage to civilian objects. The trial chamber considers that this risk was excessive in relation to the anticipated military advantage of firing at the two locations where the HV believed Martić to have been present.
Curiously, as mentioned above, this was the only proportionality analysis of the attacks on the Four Towns made by the trial chamber, whilst the circumstances regarding the rest of the strikes were not substantially different. It merely used this finding as an ‘indicative example’ to support its conclusion that ‘the HV paid little or no regard to the risk of civilian casualties and injuries and damage to civilian objects when firing artillery at a military target on at least three occasions on 4 August 1995’.Footnote 109
The trial chamber referred to a significant risk of incidental damage, but did not examine what the military advantage of taking out Martić would have been at the time of the attack.Footnote 110
The Appeals Judgment
The appeals chamber criticised the trial chamber's finding that the attacks on Martić had been disproportionate, but did not overturn it. The appeals chamber, by a majority, held that the trial chamber's analysis that ‘the attacks on Martić involved a lawful military target was not based on a concrete assessment of comparative military advantage, and did not make any findings on resulting damages or casualties’.Footnote 111 The majority thus voiced criticism, but did not clarify how the proportionality assessment should have been correctly applied.
The trial chamber's finding has also been criticised by military and academic experts for failing to apply a methodology in its proportionality analysis and to take proper account of Martić's value as a target.Footnote 112 In that light, it is interesting to consider the repeated claims by the US government that, when planning the operation resulting in the death of Osama bin Laden, the United States apparently also considered running a high-altitude bombing raid from B-2 bombers or launching a ‘direct shot’ with cruise missiles, but had ruled out those options because of the possibility of ‘too much collateral’ damage.Footnote 113 Notwithstanding the discussion of whether IHL actually applied to this mission, if this was indeed the case then surely the leader of Al-Qaeda was an extremely valuable target – well beyond the value that could be attached to merely harassing Martić, someone who commands an army that is not actually defending its positions.Footnote 114 When taking into account the view of the Obama administration, the criticism of the trial chamber that it undervalued the taking out of Martić appears to be unjustified.
It is not clear whether it lies within a trial chamber's discretion to determine, without hearing experts on the matter, whether with respect to a particular attack the military advantage was such that it would not outweigh the incidental damage likely to be caused. The finding by the majority in Gotovina appears to indicate that the trial chamber's assessment fell short of what is required. However, in other cases, the appeals chamber's compositions seized of the respective cases (and the academic and/or military community) did not consider it problematic that the judges did not really quantify, or did not explain how they quantified, a non-legal notion that forms a critical part of the legal assessment. In Galić and Dragomir Milošević, for example, it was not considered problematic that those trial chambers, without being experts on the matter, determined whether conducting certain attacks on civilians and civilian objects resulted in the population of Sarajevo experiencing the ‘extreme fear’ that was necessary for it to be considered terrorised.Footnote 115
Naturally, the majority's observation that no findings were made on ‘resulting damages or casualties’ is correct. However, the author fails to see how any findings on resulting damage or casualties would have assisted the trial chamber in its finding. Arguably, it could have strengthened its finding that ‘civilians could have reasonably been expected to be present’,Footnote 116 but evaluating the resulting damage is by no means necessary for a (retrospective) assessment of the proportionality of an attack.Footnote 117
The majority also found that ‘when considered in the context of the trial chamber's errors with respect to the impact analysis, this finding of a disproportionate attack was thus of limited value in demonstrating a broader indiscriminate attack on civilians in Knin’.Footnote 118 Indeed, the attacks on Martić could not, without more, change the nature of the operation as a whole into an indiscriminate attack. But the trial chamber could have applied a proportionality analysis to more strikes. Unfortunately, the opportunity to clarify the use of the principle of proportionality in international criminal trials was not seized by either the trial chamber or the appeals chamber. The ICTY has thus not provided any guidance for the ICC, to which the discussion now turns.
5. Applying the Principle of Proportionality before the ICC
5.1 Article 8(2)(b)(iv) of the ICC Statute
The war crimes that fall within the jurisdiction of the ICC are specified in Article 8 of the ICC Statute in a limitative list.Footnote 119 The drafters of the ICC Statute quickly agreed upon the inclusion of the grave breaches of the universally ratified 1949 Geneva Conventions, but the content of Additional Protocol I, to which a significant number of states are not parties, was subject to more discussion. Therefore, despite being acknowledged as a grave breach in Article 85 of Additional Protocol I, the launching of ‘an indiscriminate attack affecting the civilian population or civilian objects, in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects’,Footnote 120 was not included in the list of grave breaches under Article 8(a),Footnote 121 but found its way into Article 8(2)(b) of the ICC StatuteFootnote 122 as a serious violation of the laws and customs applicable in international armed conflict:
(iv) 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.
The resulting provision has been the subject of academic criticism. Robert Cryer, for example, considers that the principle of proportionality has been ‘particularly badly dealt with’ in the ICC Statute. He reflects that ‘proportionality is a concept that is difficult to apply, but that is no excuse for raising the threshold for liability’.Footnote 123 Didier Pfirter suggests, for example, that ‘[t]he drafters of the Rome Statute would not have intended the crime to be impossible to prosecute, but some of those drafting the elements clearly wanted to make it as difficult as possible’.Footnote 124 That indeed appears to be the case. Whether the crime is likely to be prosecuted before the court, and the problems with which those prosecuting the crime would be faced, will be discussed next.
5.2 The Likelihood of the Crime being Dealt with before the ICC
It has been shown above that the ICTY, in all its 161 cases, has rarely dealt with the principle of proportionality in armed conflict. One may wonder then whether it is likely that the ICC would be seized of cases concerning charges under Article 8(2)(b)(iv). Given the prerequisite that an attacker needs to actually direct the attack at a lawful military target, the principle of proportionality is mostly relevant in cases that concern hostilities conducted by an army in possession of weaponry capable of making a distinction between military targets and civilian objects, and that generally aims to strike only the armed opponent. In situations where the civilian population as such is targeted, or when fighting is conducted with, for example, machetes or Kalashnikovs, there is no place for a proportionality assessment. It is not in those situations that Article 8(2)(b)(iv) would be of relevance.
The ICC has not yet been seized of any conduct of hostilities cases similar to those of the ICTY. The Katanga and Ngudjolo pre-trial chamber did find it necessary, however, to address the principle of proportionality when it explained that a ‘disproportionate attack’ is ‘[t]he situation in which an attack is launched solely against a military objective, and in which the attackers are aware that such attack will or may cause incidental loss of life or injury to civilian persons or civilian objects’.Footnote 125 It continued that ‘violation of the principle of proportionality in the provision of Article 8(2)(b)(iv) … is limited to punishing the very violation of the principle of proportionality’.Footnote 126 Despite claims to the contrary by the defence for Katanga, the principle of proportionality had nothing to do with the matter under review: the attack on Bogoro.Footnote 127
However, Article 8(2)(b)(iv) may be of relevance to some of the situations that are subject to preliminary examination by the Office of the Prosecutor – for example, those relating to the 2008 Russia–Georgia War and the ongoing conflict in Afghanistan.Footnote 128 Furthermore, in 2010, the ICC Prosecutor announced that his office had opened a preliminary examination into two actions by North Korea ‘to evaluate if some incidents constitute war crimes under the jurisdiction of the Court’.Footnote 129 The examination of one of these incidents should be short as it is difficult to see how the sinking with a torpedo of a South Korean warship,Footnote 130 a legitimate military object, can be a war crime. The other incident was ‘the shelling of Yeonpyeong Island on the 23 November 2010 which resulted in the killing of South Korean marines and civilians and the injury of many others’.Footnote 131 This might well be an issue of an alleged disproportionate attack.
Attacks such as some of those in Operation Cast Lead, the drone attacks by the US and certain air strikes in Afghanistan, have been criticised for causing excessive collateral damage.Footnote 132 Notwithstanding that it is unrealistic that the states concerned will ever find themselves before the ICC, it appears to be these types of situation in which Article 8(2)(b)(iv) could play a role.
5.3 Difficulties Resulting from the Provision as Included in the ICC Statute
To prove that an accused has violated Article 8(2)(b)(iv) of the ICC Statute requires it to be shown that all the separate elements of the crime are fulfilled. However, the wording of the provision, as well as the language of the elements of crime,Footnote 133 make this a challenging task. The problematic parts of the provision will be discussed below.
5.3.1 Only in International Armed Conflicts
The first and major problem is that there is only Article 8(2)(b)(iv) and no ‘Article 8(2)(e) equivalent’ dealing with excessive incidental damage in non-international armed conflicts. The restriction only to international armed conflicts, for obvious reasons, severely limits this war crime. Once the 2010 amendments to Article 8(2)(e) (for poisonous weapons, gas and expanding bullets) enter into force,Footnote 134 the launching of an attack causing incidental damage will be the only war crime that is not also included for non-international armed conflicts.Footnote 135 Article 22 of the ICC Statute prohibits the analogous application of crimes listed under the heading of ‘international armed conflict’ to situations of non-international armed conflict.Footnote 136
When dealing with a situation of alleged crimes conducted during the conduct of hostilities in a non-international armed conflict, the prosecution will thus only be able to bring charges for ‘[i]ntentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities’.Footnote 137 The question arises whether, in the case of charges under Article 8(2)(e)(i), the court may still consider disproportionate attacks to establish that an intentional attack on civilians took place in the way that the ICTY did for indiscriminate attacks or direct attacks on civilians?Footnote 138 The fact that separate crimes have been included in Article 8(2)(b) of the ICC StatuteFootnote 139 – namely intentionally directing attacks against civilians and civilian objects and intentionally launching a disproportionate attack – seems to indicate that this is not possible.Footnote 140 This could mean that attacks during, for example, the Syrian conflict that are directed by government forces against rebel strongholds (or vice versa) in the middle of cities, which have caused huge numbers of civilian casualties, would fall completely outside the ambit of Article 8.
Another interesting question would arise in the case of a requalification of the character of the armed conflict. In both Lubanga and Katanga and Ngudjolo, the pre-trial chambers initially qualified the armed conflicts concerned as being international in character and confirmed the charges accordingly – that is, under Article 8(2)(b) only. The trial chamber in Lubanga then requalified the situation in Ituri, at the time, as a non-international armed conflict.Footnote 141 In Katanga and Ngudjolo, the prosecution also sought recharacterisation under Regulation 55.Footnote 142 In these cases, the trial chamber and prosecution, respectively, considered requalification as non-problematic as the crimes charged also existed in respect of non-international armed conflicts.Footnote 143 However, if charges under Article 8(2)(b)(iv) were to have been confirmed, a problem would clearly arise. In addition, it could be problematic if a situation were to be requalified as an international armed conflict. No charges under Article 8(2)(b)(iv) would then have been brought. Although the language relating to attacks on civilians (Articles 8(2)(e)(i) for non-international armed conflicts and 8(2)(b)(i) for international armed conflicts) is identical, it is submitted here that in the case of a requalification no evidence of disproportionate attacks could be used to substantiate a charge under Article 8(2)(b)(i) since there would be a separate, more specific, crime that would cover such attacks.
5.3.2 ‘Intentionally Launching … in the Knowledge that …’
In Galić, the trial chamber stated that ‘[t]o establish the mens rea of a disproportionate attack the prosecution must prove … that the attack was launched wilfully and in knowledge of circumstances giving rise to the expectation of excessive civilian casualties’.Footnote 144 However, as the mens rea standard of the ICTY diverges from that of the ICC,Footnote 145 this clarification need not be applicable. The attempts made in the Elements of Crimes to clarify the mental element for launching a disproportionate attack appear to have obscured rather than clarified the issue.Footnote 146 The third element statesFootnote 147 that
[t]he perpetrator knew that the attack would cause incidental death or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment and that such death, injury or damage would be of such an extent as to be clearly excessive in relation to the concrete and direct overall military advantage anticipated.
A footnote adds that ‘[a]s opposed to the general rule set forth in paragraph 4 of the General Introduction, this knowledge element requires that the perpetrator make the value judgement as described therein’.
This element has been heavily criticised.Footnote 148 Michael Bothe considers the ‘clarification’ in the footnote to be ‘highly problematic’ as it ‘would make the perpetrator, in a way, the judge in his own cause’.Footnote 149 If the attacker errs in the evaluation of the excessiveness of the damage or if an evaluation is absent, such a mistake would exclude the necessary intent.Footnote 150 The judges' evaluation would then become irrelevant. Moreover, the commander is usually the one who takes the ultimate decision to strike a certain target, but often he is advised by a targeting cell which consists, amongst others, of military lawyers, intelligence officers and planners, who make the evaluations.Footnote 151 Would this then exclude the liability of the commander? Not surprisingly, Bothe views this part of the Elements of Crimes as a ‘flawed interpretation of the notions of mistake of law and intent’.Footnote 152
Knowledge and anticipating
In his expert report in the Gotovina case, Corn suggested that the criminal application of the proportionality rule could be compared to the common law concept of implied malice in murder.Footnote 153 Common law allows for the imputation of malice to a defendant who acts without the (express) intent to kill, but whose actions show a wanton disregard for the lives of others as the result of the risk created. Similarly, the proportionality rule attributes an improper purpose to an otherwise lawful attack based on the commander's disregard for the consequences of the risk created by the attack: the law imputes to the commander (implied) intent to engage in an indiscriminate attack.Footnote 154
Corn formulated his analysis for a case before the ICTY, but the analysis assists in understanding criminal responsibility for violating the principle of proportionality in general. Causing excessive incidental damage is indeed a form of recklessness when attacking a lawful target. As Corn explains, the difference with a direct attack on civilians is in the intent. When translated into civil law terminology: dolus directus for the causing of civilian casualties vis-à-vis dolus eventualis for accepting that the casualties are likely to be excessive.Footnote 155 If the ICC Statute includes recklessness or dolus eventualis,Footnote 156 it appears that an attack that is launched against a military object within a civilian area, without having taken proper precautions, could also be brought as a crime of directly attacking civilians (Article 8(2)(b)(i)) with the attacker acting with dolus eventualis,Footnote 157 as well as under Article 8(2)(b)(iv). If it might be considered that holding someone accountable for such conduct under Article 8(2)(b)(i) would stretch the required intent too far, surely it should fall within Article 8(2)(b)(iv); also in the event that the attacker does not possess dolus directus and is merely negligent, or accepts that excessive damage may occur.
5.3.3 ‘… An Attack …’
What is to be considered an attack for the purposes of IHL, and more specifically for the purposes of the civilian population's ‘general protection against effects of hostilities’ – namely the section of Additional Protocol I that incorporates the principle of proportionality – is explained in Article 49 of Additional Protocol I. ‘Attacks’ are defined therein as ‘acts of violence against the adversary, whether in offence or in defence’.Footnote 158 As explained above, this principle, as included in Additional Protocol I, deals solely with the conduct of hostilities. Blockades might qualify as an ‘armed attack’ for the purposes of the jus ad bellum, but – without more – cannot be considered an ‘attack’ under Article 49 of Additional Protocol I. Even if a blockade would have a disproportionate effect on the civilian population, it could not be prosecuted under Article 8(2)(b)(iv). Since collective punishments were not included in the list of war crimes,Footnote 159 this could result in limited options to bring war crime charges in a situation involving a (naval) blockade. Judge Kooijmans considered in his separate opinion of the Advisory Opinion of the ICJ in the Construction of a Wall caseFootnote 160 that
the construction of the wall should also have been put to the proportionality test, in particular since the concepts of military necessity and proportionality have always been intimately linked in international humanitarian law. And in my view it is of decisive importance that, even if the construction of the wall and its associated régime could be justified as measures necessary to protect the legitimate rights of Israeli citizens, these measures would not pass the proportionality test.
The foregoing makes clear, however, that the balancing as proposed by Judge Kooijmans is not the proportionality test as codified in Additional Protocol I and, without the use of violence, could not qualify as an attack for the purposes of Article 8(2)(b)(iv). This is another example of a situation that would be covered by the principle of proportionality in its broad scope, but would not fit into the format in which the principle has been incorporated in Additional Protocol I and the ICC Statute.
According to Article 49 of Additional Protocol I, the attacks referred to in the relevant section of the Protocol are attacks that take place on land, as well as those conducted from the air or the sea onto the land.Footnote 161 For the crime of causing excessive damage to civilians or to the natural environment, as included in the ICC Statute, it is not specified whether this crime can also be committed in the course of fighting that takes place between ships at sea or between aircraft in the skies. However, anyone accused of this crime would have a strong point when arguing that Article 8(2)(b)(iv) does not apply to such attacks. This is particularly relevant when considering the enormous damage that sea warfare can cause to the (marine) environment, such as oil spills.Footnote 162 This might therefore amount to a serious gap in the options to sanction such conduct as a war crime.Footnote 163
5.3.4 ‘… Will Cause …’: Is There a Result Requirement?
The language of the ICC Statute is slightly ambiguous on this point. Its use of the wording ‘will cause’ appears to indicate that this crime requires a result, in the same way that Additional Protocol I criminalises an attack that ‘will cause’ a certain prohibited level of damage in Article 85. Any attack that would not lead to incidental damage could then only be charged as an attempt pursuant to Article 25(3)(f) of the ICC Statute. Indeed, this was the understanding of part of the Preparatory Commission that drafted the Elements of Crimes.Footnote 164
However, the Preparatory Commission's negotiations resulted in Elements of Crimes that use the phrase ‘the attack was such that it would cause’ rather than ‘will cause’. According to commentators such as Knut Dörmann, this is intended to reflect the majority view of the Commission that a particular result is not a prerequisite to the crime.Footnote 165 An attack that was ‘launched’, but because of, for example, a weapon failure did not result in the expected excessive incidental damage would fulfil the crime as it is included in the ICC Statute.Footnote 166 Be that as it may, as discussed above, the wording of the statute should prevail and it thus remains to be seen how the court would deal with the result requirement when seized of a case concerning charges under Article 8(2)(b)(iv).).
What level of result?
If a result is to be required, the next question would be what kind of result? Additional Protocol I requires that the attack should cause ‘death, or serious injury to body or health’, which is the same threshold as that required by the ICTY for an act to be a violation of the law and customs of war for the purposes of the ICTY Statute.Footnote 167 A grave breach, as included in Additional Protocol I, thus takes place also in those situations where only a few civilians are killed or seriously injured. The damage as a whole does not need to reach the level of the anticipated ‘excessive’ damage.
The ICC Statute contains no such clarification as to the required level of damage. It thus leaves open the argument that not only must injury or damage to the civilian population occur, but that it must also be ‘clearly excessive’.Footnote 168 The use of the wording ‘will cause’ appears to indicate that the crime requires a result of some injury or damage.
Whereas the ad hoc tribunals mostly dealt only with events that occurred well in the past (some 10 to 15 years after the relevant events), the ICC, as a result of its statutory restrictions, may only consider relatively recent events. If a result requirement is needed, a quick investigation could have difficulty in determining the existence of incidental damage resulting from certain attacks. After all, it is certainly possible that the damage may only materialise after a certain time, particularly when dealing with an alleged clearly excessive attack on the environment.
5.3.5 ‘… Loss of Life or Injury to Civilians or Damage to Civilian Objects …’: What Counts as Incidental Damage?
Modern technology not only allows for making a distinction between military and civilian objects, for example by means of using precision guided missiles, but it also allows for elaborate computer models and tests to calculate the expected collateral damage.Footnote 169 However, besides the fact that not all armed forces possess this technology, for a correct calculation of the collateral damage, it is necessary to know what should be counted as such damage. Some problems relating to the wording of the provision in the ICC Statute and the definition of, for example, civilians, will be discussed next.
Civilians
The ICC Statute does not specify who or what is to be considered as ‘civilian’ for the purposes of Article 8(2)(b)(iv). This term was discussed by the pre-trial chamber in Katanga and Ngudjolo, when dealing with alleged violations of Article 8(2)(b)(i) of the ICC Statute, which criminalises ‘intentionally directing attacks against the civilian population as such or against individual civilians, not taking direct part in hostilities’. Although here, the additional specification is given that the victims should not have been directly participating in hostilities at the time of the attack, it does not, as with Article 8(2)(b)(iv), explain what is to be understood as ‘(a) civilian’. As the Elements of Crimes are also silent on this issue, the pre-trial chamber, in accordance with Article 21(1)(b), turned to IHL in determining who was to fall within the category of ‘civilians’. The pre-trial chamber concluded that ‘civilians’ for the purposes of this article meant ‘civilians not taking an active part in hostilities, or … a civilian population whose allegiance is with a party to the conflict that is enemy or hostile to that of the perpetrator’.Footnote 170
This is a problematic finding. Clearly, a party to an armed conflict can violate IHL in its dealings with civilians whose allegiance is to the said party, or who could be regarded as neutral. Similarly, for the purpose of proportionality, the warring parties must take into account their ‘own’ civilians. If, for example, the ICC were to be seized of a case dealing with alleged disproportionate airstrikes as part of the International Security Assistance Force (ISAF) or Operation Enduring Freedom in Afghanistan, or if it were to consider actions by NATO as part of Operation Unified Protector in Libya,Footnote 171 and the trial chamber concerned were to apply the same view as the pre-trial chamber in Katanga and Ngudjolo, this would have far-reaching consequences. The civilian population in Afghanistan, which – mostly – does not support the Taliban, or the Libyans who were not in favour of Gaddafi, would not be included within the meaning of the word ‘civilian’ for the purposes of an indiscriminate or disproportionate attack. ‘Neutral civilians’, such as the personnel of (international) humanitarian or non-governmental organisations, should also be protected and considered within the determination of incidental damage, even though these persons are not aligned with any party to the conflict.
Similar problems with this finding could also arise in another case before the ICC. Notwithstanding the discussion of whether or not peacekeepers are civilians,Footnote 172 peacekeepers who are not engaged in any form of enforcement action, if protected, should be considered as civilians for the purposes of a proportionality assessment. Banda and Jerbo concerns an attack on the Haskinita camp of the African Union Mission to Sudan (AMIS).Footnote 173 The accused allegedly carried out an unlawful attack on personnel involved in a UN-mandated peacekeeping mission, for which a finding of guilt requires that the AMIS soldiers were neutral – that is, they showed no allegiance to, nor were aligned with a party to the conflict in Sudan. If, in another situation, the Office of the Prosecutor wanted to charge a person with launching a disproportionate attack that caused excessive incidental damage among peacekeepers, the Katanga and Ngudjolo pre-trial chamber reasoning would therefore be problematic indeed, as the peacekeepers would not be aligned to the opposing party.
Are all civilians equal?
Are all civilians equal when it comes to collateral damage estimates or are some civilians ‘more equal than others’? As noted above, ‘friendly’ and ‘neutral’ civilians should also be taken into account when deciding on an attack. Whereas one would assume that all persons who are not combatants and do not, or no longer, take a direct part in hostilities would equally qualify as civilians, there are calls to consider certain individuals as counting less for the purposes of collateral damage, or – despite qualifying as civilians – not to be counted at all. Such individuals would, for example, be persons acting either voluntarily, but also involuntarily, as human shields,Footnote 174 and civilians who find themselves inside a military object such as a weapons factory.Footnote 175
While certain activities may have the result that the civilians concerned are taking a direct part in hostilities, and for that reason do not have to be taken into account for the balancing test, the mere presence in a factory as a worker there does not constitute direct participation. It would reverse the development in IHL shortly after the Second World War that a general contribution to the war effort does not make the civilian population targetable as such. The presence of civilians does not prevent the targeting of (high-profile) military objects, but the risk to the lives of these civilians should nevertheless be taken into account when planning the attack. Failing to consider such civilians in the proportionality analysis would have the absurd consequence that no precautions would have to be taken that could prevent the death of these persons, which might be wholly unnecessary. This includes, by way of example, considering whether a strike can be carried out at a time when no workers are present.Footnote 176
Persons hors de combat
The incidental damage that would have to be proved to be clearly excessive is only damage to civilians and/or to civilian structures. It is submitted here that the principle of proportionality is broader than the rules that codified the principle in Additional Protocol I. The principle underlying Articles 52 and 57 of Additional Protocol I would include prohibited attacks on military objects that would cause excessive damage to any person who cannot be targeted directly under IHL: not only civilians but also persons hors de combat.
However, such attacks would not fall within Article 8(2)(b)(iv) of the ICC Statute. Although members of the armed forces may assume that they should not cause excessive collateral damage to enemy combatants hors de combat when taking targeting decisions, the prosecution of an act that had caused considerable casualties amongst persons hors de combat, that were foreseeable to the attacker, would be impossible before the ICC, as long as the object of the attack was a legitimate military target. This is so because the principle of proportionality, as codified in Articles 51(5)(b) and 57(2) of Additional Protocol I, requires commanders to make an assessment as to whether the military advantage to be obtained by an operation outweighs the possible damage to civilians and/or civilian objects that could result from this military action.Footnote 177
The law is very strict on this issue. It is only civilian damage that has to be balanced against the military advantage.Footnote 178 Persons hors de combat, such as prisoners of war (POW) or wounded soldiers, have protected status under IHL; this does not mean, however, that they are civilians.Footnote 179 They therefore do not benefit from the ‘protection’ of the principle of proportionality. Imagine, for example, the following situation. A high-value military object, such as a commander of the opposing forces whose elimination would result in a significant military advantage, is in the direct vicinity of a POW-camp or field hospital. In such a situation, the number of persons hors de combat who possibly would be killed or (further) injured as a result of a strike would, based on the language of Additional Protocol I and the ICC Statute, not have to be taken into consideration by the attacking party.
The same applies to an attack on a building or location that would qualify as a military object which, at the moment of the attack, housed persons hors de combat. In both situations, even if the number of persons hors de combat are killed that, had the same number of civilians been killed, would appear to be clearly excessive, no war crime charges could be brought under Article 8(2)(b)(iv) for ordering or for carrying out the attacks in question.Footnote 180
In practice, commanders and planners might well include accidental injury to and death of POWs and wounded soldiers when weighing the military advantage to be gained by taking out a military object. Nonetheless, the fact that Additional Protocol I does not include persons hors de combat in the proportionality balance would be relevant in criminal proceedings, as crimes need to indicate clearly the prohibited conduct;Footnote 181 it would otherwise risk violating the principle of nullum crimen sine lege, which – as stated in Article 22(2) of the ICC Statute – prohibits the extending of the definition of a crime by analogy.Footnote 182
Dual-use objects
Air campaigns such as that conducted by NATO against Serbia in 1999, and more recently Operation Odyssey Dawn against Gaddafi's regime in Libya, show that the target lists in modern operations may include numerous dual-use objects. A dual-use facility, such as a power plant that supplies both a city and a military headquarters, might – depending on the circumstances – qualify as a military target. Because a dual-use object also has a civilian component, its destruction will thus have an effect on civilians or civilian objects. This raises the questions of whether, and how, such effects should be considered in the proportionality analysis. Shue and Wippman argue convincingly that for estimating the expected incidental damage the effects on civilians or civilian objects should be taken into account.Footnote 183 They use the example of an attack on a power plant supplying the military that is situated right next to a power plant that provides electricity only for civilian structures versus a situation where there is only one power plant providing electricity for both. In the former situation, it is evident that the power plant providing electricity for civilians would have to be taken into account as possible incidental damage when planning an attack. In the latter situation, it is not as clear, but it appears reasonable that the consequences for the civilian population should also be taken into account in the latter situation.
However, the issue of dual-use objects is far from settled. Paolo Benvenuti, for example, observed that, according to the Final Report to the Prosecutor, the attack on the Serbian Radio and Television building (RTS), in which 16 civilians were killed, had two intentional goals: the primary military goal, and a secondary non-military goal of influencing public opinion in Serbia. In his view, the civilian casualties that constituted ‘collateral damage’ thus appear to have been caused wilfully.Footnote 184 Ian Henderson, on the other hand, considers that as long as collateral damage is proportional, all feasible measures are taken to minimise it, and Article 57(3) of Additional Protocol I is complied with, ‘there is nothing actually unlawful in that particular collateral damage [is] being considered desirable or beneficial by the attacker’. He adds that it is morally dubious to do so, and that the ‘benefit’ cannot be factored into the military advantage for the balancing test.Footnote 185
Any chamber required to determine the legality of strikes against such objects will therefore have the challenging task of determining the state of the law in this respect.
Adding up?
One author ‘wonders whether civilian casualties must be jointly counted with the harm caused to civilian objects’?Footnote 186 The use of ‘or’ could be taken to indicate the disjunctive; this would not necessarily be contrary to the general understanding of legal terminology.Footnote 187 But since Additional Protocol I, which forms the basis for this article of the ICC Statute, specifically mentions ‘incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof’,Footnote 188 there appears to be a strong indication to count the wounded and dead civilians together with damage to civilian objects.Footnote 189
However, the second part of Article 8(2)(b)(iv) is based on a separate article of Additional Protocol I, which is found in a different part of the Protocol.Footnote 190 The ‘or a combination thereof’ as mentioned in the Protocol therefore does not extend to this article dealing with the natural environment. Does this then mean that an attacker has to make two separate judgments: one with respect to the expected injury to and death of civilians and damage to civilian structures, and another for the expected damage to the natural environment? Similarly, would the chamber, in assessing whether a violation has taken place, have to separate the two types of collateral damage, even if an attack was expected to result in both? According to the present author, the collateral damage should be seen as a whole. After all, it is that which does not qualify as a military objective that is protected by the principle of proportionality. Any effect on entities other than those which can legitimately be targeted should be taken into account when planning the attack.
5.3.6 ‘… or Widespread, Long-term and Severe Damage to the Natural Environment …’
Civilian objects are all those that do not qualify as military objects – those that do not ‘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’.Footnote 191 Although parts of the natural environment could thus potentially be seen as a military object, the natural environment itself would have to be considered as a civilian object or, at least, to be made up of civilian objects. Indeed, the ICRC Study found that the natural environment is considered to be a civilian object and that, as such, it is protected in the same way as other civilian objects.Footnote 192 Listing separately the natural environment and civil objects in Article 8(2)(b)(iv) would thus not have been necessary.
Notwithstanding the foregoing, the separate mention of the natural environment (and thus explicit recognition of the existence of individual criminal responsibility for attacks that cause excessive damage to the non-human environment) makes this the first ecocentric war crime in the otherwise anthropocentric war crimes law.Footnote 193 As such it represents a significant advance for international humanitarian and criminal law.Footnote 194 At the same time, Article 8(2)(b)(iv) is a step back from what is prohibited under customary law and under Article 35(3) of Additional Protocol I, which prohibit all attacks directed against the natural environment, and not just those that would result in excessive damage.Footnote 195
The drafters, however, appear to have based the second part of Article 8(2)(b)(iv) on Additional Protocol I.Footnote 196 As with the Protocol, it uses the conjunctive ‘and’ in the phrase ‘widespread, long-term and severe damage’, whereas the main IHL treaty dealing with the environment – the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD)Footnote 197 – refers to ‘widespread, long-lasting or severe effect’.Footnote 198 The drafting history of Additional Protocol I, and the implementation of ENMOD in, for example, military manuals, indicates a very high threshold of damage. ‘Long-term’ as used in Additional Protocol I was envisaged as being damage measured in decades,Footnote 199 and although ‘long-lasting’ in ENMOD would (merely) require an effect lasting for a few months or a season, ‘widespread’ as contained in this treaty would be ‘several hundred square kilometres’.Footnote 200 Even if ENMOD is taken as a standard, the conjunctive phrasing in Article 8(2)(b)(iv) would still require a very significant amount of damage.
Estimates of the expected environmental damage are very difficult to make, however.Footnote 201 Naturally, with regard to ‘long-term’, an additional challenge arises for the prosecution: when can charges be brought for causing such damage to the natural environment?
In spite of the problems highlighted above, the high threshold of Article 8(2)(b)(iv) is likely to be fulfilled when one particular means of warfare is employed: the use of nuclear weapons and the subsequent ‘fall-out’ would have an impact on the environment that would cover very large areas and last for many years.Footnote 202 The use of these weapons would appear to fulfil the damage requirements and, for this reason, Article 8(2)(b)(iv) could be useful in the prevention of the use of such weapons.Footnote 203
5.3.7 ‘… Clearly Excessive …’
The ICC Statute added ‘clearly’ to the phrasing of Additional Protocol I, which only uses ‘excessive’.Footnote 204 This raises the threshold for damage to fall within Article 8(2)(b)(iv), although – as William Boothy considers – ‘the words “clearly” and “overall” may well reflect the basis on which individual states have ratified [Additional Protocol] I’.Footnote 205
The addition appears to be intended to make sure that only obvious cases of disproportionate attacks are punished, and it has been interpreted as such by the Office of the Prosecutor when looking into alleged breaches of the proportionality principle by British forces in Iraq.Footnote 206 However, it also adds to the difficulty of bringing charges for such attacks, especially since the ICC Statute already has a certain threshold built in with respect to war crimes. Article 8 grants the court jurisdiction over war crimes ‘in particular when committed as part of a plan or policy or as part of a large scale commission of such crimes’. This phrase found its way into the ICC Statute as a compromise between the United States, who wanted to set the threshold very high for the court's jurisdiction over war crimes, and most of the other delegates at the Rome conference, who wanted no such limitation.Footnote 207 The wording ‘in particular’ appears to serve as guidance for the prosecutorial policy and is not an absolute requirement. Rightly so, as this would collapse the definition of war crimes into that of crimes against humanity and would result in the prosecution having to prove these additional elements, which are not present in the customary law based on which the jurisdiction over the offence was asserted.Footnote 208
5.3.8 ‘… in Relation to the Concrete and Direct Overall Military Advantage …’
In Gotovina, the majority of the ICTY appeals chamber made clear that, in its view, the trial chamber should have assessed what the actual military advantage of taking out Martić would have been before finding that firing at locations where he was believed to be present was declared disproportionate. However, how can a court determine what the military advantage of an attack was if the question of what is to be considered a military advantage is still open to discussion? For example, no agreement exists whether force protection may be included in the equation (on the side of military advantage).Footnote 209 The judges would thus be faced with a daunting task when asked to determine whether a reasonable commander could have foreseen that the expected incidental damage would be excessive in comparison with the anticipated military advantage.
Before the ICC, the reasonable commander standard, as put forward by the Galić trial chamber, does not apply. Therefore, it is not the judges who need to make the determination. They need only to review whether the accused made such a determination. However, the accused would have to have known, at the time, how to calculate the military advantage.
Direct and overall
As mentioned above, in Henderson's view certain collateral damage may be desired by the attacker and this would not be unlawful, but this cannot be factored into the military advantage for the balancing test. The latter is, of course, true. It is only direct military advantage that may be considered and the influence of any public opinion, as a result of the collateral damage, would only be indirect.
Besides the difference between direct and indirect military advantage, a temporal difference can be made between advantage that occurs immediately – for example, because the air defence system that was targeted has been destroyed – and advantage that only materialises at a later time and/or in a different place. Whilst ‘direct’ appears to refer only to the former, the Elements of Crimes indicate that the latter should also be included. The Elements state in a footnote that the ‘advantage may or may not be temporally or geographically related to the object of the attack’. This explains why the word ‘overall’ was added to the language used in Additional Protocol I.Footnote 210
According to the ICRC, however, the addition of ‘overall’ should not be seen as changing existing law and the fact that ‘a particular target can have an important military advantage that can be felt over a lengthy period of time and affect military action in areas other than the vicinity of the target itself’ was already included in the language of Additional Protocol I.Footnote 211 After reviewing various sources, Dörmann concludes that the broader purpose of a particular military operation that consists of various individual actions may be taken into account in assessing a potential target's military value.Footnote 212 In practice, this will then require the commander to claim, afterwards, that he considered the military advantage of the operation as a whole to be such that it would allow for the expected incidental damage to arise out of the specific actions for which he was responsible.
Comparing apples and oranges
If it could be determined what the military advantage of a certain attack or operation would be, that advantage would then have to be balanced against the expected incidental damage. This is, yet again, a challenging task. No calculation model exists that equates the number of civilian casualties or destroyed houses against a certain level of military advantage. The destruction of a command and control centre would certainly offer the attacker a significant military advantage, but how many civilian casualties would amount to proportionate incidental damage? Five, ten, twenty? Is the life of a combatant worth the same as that of a civilian? And what about the value of a military object such as an air defence system? These questions illustrate the challenges that commanders and judges alike will be faced with when attempting to balance the anticipated military advantage and incidental damage.
5.4 Collection of Evidence
Establishing beyond reasonable doubt that a crime under Article 8(2)(b)(iv) has been committed requires the prosecution to bring before the judges the necessary evidence for the chamber to be able to reach such a verdict. The collection of evidence in a case of this kind, however, may be very difficult. To obtain information about the knowledge of the accused at the time of launching the attack about the possible outcome of the attack would require (internal) documents or information from data collectors or insider witnesses who were present or aware of the circumstances in which the decision to launch the attack was taken.Footnote 213 However, as opposed to, for example, the ICTY,Footnote 214 the ICC does not have subpoena powers.Footnote 215 Göran Sluiter wonders, in this regard, ‘how any criminal court could function with a permanent and structural absence of subpoena powers’.Footnote 216
The prosecution is thus faced with an enormous challenge in obtaining documentary or insider evidence. Evidence can, of course, be obtained by other means. In some of the cases before the ICTY, the prosecution was able to tender UN Protection Force (UNPROFOR) intercepts. The peace forces had collected thousands of messages sent between various parts of, for example, the Bosnian Serb Army (VRS). In Krstić, for example, the trial chamber established the mens rea of the accused on the basis of such intercepts.Footnote 217 Millions of documents have been made public by Wikileaks and many of those relate to military operations, including those in Iraq and Afghanistan.Footnote 218 If these documents could be authenticated by a witness testifying to that extent, they can provide a wealth of information on targeting decisions. But documents that are relevant for the attacks concerned would not be made public in all situations through, for example, Wikileaks; nor will it be easy to find witnesses who are able and willing to testify about the authenticity of the documents, also in light of the aforementioned absence of subpoena powers.
5.5 Applying Article 8(2)(B)(iv) to Non-Member States
When the United Nations Security Council refers a situation in a state that has not ratified the ICC Statute, the ICC basically acts as a mini ad hoc tribunalFootnote 219 based on Chapter VII of the UN Charter, in much the same way as the ICTY and ICTR were, and are still, acting.Footnote 220 The present author submits that the ICC – when prosecuting alleged crimes that occurred on the territory of non-state parties and are allegedly committed by nationals of a non-state party that has not ratified Additional Protocol IFootnote 221 – will have to consider whether the alleged crime under Article 8(2)(b)(iv) is actually punishable by the ICC. The author holds, therefore, that the ICC should, in a similar fashion to that of the ICTY, apply the so-called ‘Tadić principles’ to establish jurisdiction.Footnote 222 These ‘principles’ are the four conditions that, according to the appeals chamber of the ICTY, must be met in order for criminal conduct to fall within the scope of Article 3 of the ICTY Statute.Footnote 223
Given, as observed above, that alleged violations of the proportionality principle to be brought before the court are likely to be linked to developed states that have the capability of using modern technology – several of which, such as the United States and Israel, have not ratified Additional Protocol I – the scenario of the crime of proportionality being applied in relation to non-states parties is not merely hypothetical.Footnote 224
In such situations, there has been no prior consent by the relevant state to be bound by the ICC Statute and to the ICC exercising jurisdiction over its nationals, or over other individuals perpetrating crimes on its territory. The ICC Statute would thus be applied ‘retroactively’Footnote 225 to nationals (or individuals on the territory) of non-states parties.Footnote 226 Absent national criminal law implementing the ICC Statute, the court's jurisdiction would have to be established on the prohibition of the relevant crimes forming part of customary international law.Footnote 227
Although the ICC Statute includes a set of war crimes that, to a large extent, are customary, it also includes crimes that may be considered as treaty crimes (the crime of attacking peacekeepers, for example), or the customary status of which is debatable in the case of a non-international armed conflict. The foregoing is irrelevant, however, when it involves crimes allegedly committed in a state party. Instead, the customary status of the crimes becomes very relevant in the above situations with regard to crimes allegedly committed in a non-member state or by citizens of such a state. It would thus make sense for the trial chamber seized of a case dealing with such a situation to apply the Tadić principles in order to establish the ICC's jurisdiction over the alleged crimes.
Many authors,Footnote 228 and indeed, quite possibly also a (pre-)trial chamber of the ICC, might pass over this jurisdictional question relatively easily because they may consider the crimes section of the ICC Statute to reflect customary international law. However, while many of the crimes listed under Article 8 of the ICC Statute are violations of IHL for which individual criminal responsibility undoubtedly exists under customary international law,Footnote 229 there are certain crimes which are not reflective of customary lawFootnote 230 – or at least were not in 1998.Footnote 231
It is therefore submitted that in those cases where jurisdiction is based on a retroactive application of the ICC Statute, it would be most appropriate if the (pre-)trial chamber seized of the case were to pronounce on this issue and apply the Tadić principles, or its own ICC version of the principles, in order first to establish its jurisdiction before dealing with the substance of the case;Footnote 232 the same is true when the alleged crimes are not derived from the Additional Protocols or treaties that are not universally ratified. It is submitted, too, that the court should do so even in those cases where this issue is not raised by the defence. The appropriate moment would appear to be the confirmation decision by a pre-trial chamber on the prosecution's document containing the charges against one or more individuals. The ICC's practice to date, however, shows that this is not being done at that stage of the proceedings.Footnote 233 It remains to be seen whether at a later stage of the proceedings the trial chambers or appeals chamber of the court will pronounce on this matter.
This is another challenge the court would be faced with when seized of a case concerning Article 8(2)(b)(iv) charges. Together with the other challenges mentioned above, it shows how difficult it would be to prosecute someone for launching an attack that would result in excessive collateral damage. Without changes to the article in its current form it would be an almost unachievable task. The concluding remarks, to which the discussion now turns, propose some of the changes that could be made to create a workable criminalisation of violations of the principle of proportionality.
6. Concluding Remarks
The principle of proportionality is one of the core principles of international humanitarian law and forms an important part of the law of targeting. Although the ICTY has dealt with various conduct of hostilities cases that included alleged violations of the principle, it has been shown above that the tribunal has only once, in Gotovina, actually applied the balancing test on which this principle is based: weighing the anticipated military advantage against the possible incidental damage. This single application of the principle to the facts of the case has been criticised by academics and military lawyers, as well as by the appeals chamber. And while not explicitly overturning the trial chamber's finding, the appeals chamber nevertheless expressed its discontent with the trial chamber's reasoning. The foregoing illustrates the challenges in applying the principle of proportionality in retrospect, during (international) criminal trials.
This article has also shown that it would be extremely difficult to charge someone before the ICC who allegedly has carried out one or more attacks that were expected to cause excessive incidental damage. In order to effectively be able to rely on this important principle of humanitarian law as a retrospective enforcement mechanism, it would therefore be advised that the ICC Statute, as well as the Elements of Crimes, be modified so as to make prosecution of violations of the principle actually possible.
Specifically, the ICC Statute should be amended to include also the crime laid down in Article 8(2)(b)(iv) when committed in non-international armed conflicts. Attacks on rebel or government posts in urban areas that cause extensive civilian casualties, as seen frequently during the conflicts in Libya and in Syria, would then fall within the court's material jurisdiction. Also, it would be preferable to amend Article 8(2)(b)(iv), as well as the additional sub-paragraph for Article 8(2)(e), to reflect the language of Additional Protocol I.Footnote 234 Furthermore, the Elements of Crimes for Article 8(2)(b)(iv) should be modified by deleting the value judgment and including an objective commander standard. Whilst such a modification would do away with the difficulties described above with respect to the value judgment made by the one launching the attack, the objective standard would still suffer from the difficulties related to determining the military advantage and the level of incidental damage that could be expected. Therefore, it would also be helpful if some clarification could be provided concerning the issues raised above,Footnote 235 such as the question as to what qualifies as damage, and whether or not the different types of damage should be added together.
Naturally, any such amendments or modifications would be subject to the respective negotiation processes. Given the drafting history of both Additional Protocol I and of the ICC Statute, such negotiations would be difficult, and are not likely to result in the proposed outcomes. However, without any changes to the current regime, Article 8(2)(b)(iv) of the ICC Statute appears to be a dead letter, which militates – at a very minimum – in favour of attempting to create a workable definition of the crime in question.
When any changes to the first part of Article 8(2)(b)(iv), which criminalises the behaviour prohibited in Articles 51(5)(b) and 57(2) of Additional Protocol I, proved to be unattainable, perhaps the Assembly of States Parties could agree to separate the first and the second part of the said article, and create a separate crime for attacks against the natural environment. At a time when climate change and the need to protect the environment become more and more urgent, it may be possible to strengthen the criminalisation of attacks that result in significant damage to the environment. Such strengthening could be achieved by creating a separate crime that would not be subject to the proportionality balance, similar to the prohibition contained in Article 35(3) of Additional Protocol I.
If none of these suggested modifications are achievable, the court will be left with a crime that is almost impossible to prove, and is thus likely never to lead to the prosecution of the types of violation that the principle of proportionality is envisaged to prevent. At the same time, and failing implementation of the proposed modifications, it appears that the use of nuclear weapons would be covered by Article 8(2)(b)(iv) and this provision, as such, could serve perhaps to prevent future use of these weapons.
