35 Fall 2021 III. “Proportionality” in the Laws of War “Proportionality” in the law governing military operations is more complicated than that governing the decision to use force. With respect to the latter, the principle of proportionality requires the exercise of the minimum force necessary to achieve a lawful purpose, that is, to end the use or threat of force giving rise to the right to use force against it. Emphasis on economy of force is important. Unlike the law governing the decision to use force, the law governing military operations has been elaborated in treaties. Some, like the 1949 Geneva Conventions and the 1899 and 1907 Hague Conventions, have acquired the status of customary international law because almost all states adhere to them. Others, like the 1977 Protocols I and II Additional to the 1949 Geneva Conventions, contain elements that governments and courts agree reflect customary international law. They therefore are binding on states, like Israel and the United States, which are not parties to the two protocols. Similarly, because of the generally agreed definition of the war crime elements specified in the Rome Statute of the International Criminal Court, even those governments not party to the Rome Statute, including Israel and the United States, treat those definitions of crimes as accurate reflections of treaty and/or customary international law.27 They add up to the provision in Protocol I that deals with the principle of distinction: Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.28 Protocol I, as we have seen, prohibits“an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”29 Minimum force more likely than not will result in effective distinction between military and nonmilitary objects.30 The Israel Supreme Court has held that the laws of war for international armed conflict govern the actions of the IDF in conflict with Hamas, the PIJ, and other Palestinian armed groups.31 The Israel Supreme Court is authoritative for the IDF. The point is important. In contrast, the International Court of Justice (ICJ) 2004 advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory treated the conflict between Israel and Palestinians as non-international, that is, not involving a conflict among 26. Michael Newton and Larry May, PROPORTIONALITY IN INTERNATIONAL LAW 85 (Oxford: Oxford University Press, 2014). Newton and May quote Italian reporter Lorenzo Cremonesi, Special Envoy of Corriere della Sera (Italian newspaper), with respect to an incident during Operation Cast Lead, the Israeli-Hamas conflict in Gaza, 2008-09: “‘Get away! Get away from here! Do you want the Israelis to kill everyone? Do you want our children to die under the bombs? Take your missiles and weapons away,’ the inhabitants of the Gaza Strip yelled at the Hamas militants and their allies in Islamic Jihad. The more courageous were organized and blocked the entrances to their courtyards and locked the doors to their buildings, barricading quickly and furiously the stairs to the highest rooftops. But for all of that the guerrillas didn’t listen to anyone. ‘Traitors, collaborators with Israel, spies of Fatah, cowards! The soldiers of the holy war will punish you. And in any case you will all die, like us. Fighting the Zionist Jews we are all destined for paradise. Do you not wish to die with us?’ This is what they yelled furiously as they broke down doors and windows, hiding themselves on high floors, [in] gardens, using ambulances and barricading themselves near the hospitals, schools and buildings of the UN. In extreme cases Hamas militants shot those who sought to block them from their streets and houses to save their own families, or they beat them savagely.” Id. at 85-86 n. 1. On the generally protected status of religious buildings, see Dinstein, supra note 8, at 170 et seq. 27. UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), July 17, 1998, ISBN No. 92-9227-227-6, Art. 8 (2) (b) (iv), available at https:// www.icc-cpi.int/resource-library/documents/rs-eng.pdf; Newton and May, supra note 26, at 21-25. 28. Protocol I, supra note 3, at art. 52(1). Precision guided bombs had proved their value in theVietnamWar. The VietnamWar was a stimulus for the diplomacy resulting in the 1977 Protocols I and II to the 1949 Geneva Conventions. 29. Id. at art. 57(2)(a)(iii). 30. Dinstein, supra note 8, at 5-6; McDougal and Feliciano, supra note 19, at 523. 31. See e.g. Yahli Shereshevsky, “HCJ, 3003/18 Yesh Din – Volunteers for Human Rights v. Chief of General Staff, Israel Defense Forces (IDF),” May 25, 2018, 113 AM. J. INT’L. L. 361 (2019) (summary and discussion of case).
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