26 No. 73 JUSTICE Nearly three decades after the adoption of the Fourth Geneva Convention, additional protocols were promulgated in 1977. Article 57 of the 1977 Protocols appeared to expand the concept of proportionality and to constrict the right of self-defense: Precautions in attack: 1. In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects. 2. With respect to attacks, the following precautions shall be taken: a) those who plan or decide upon an attack shall: i) do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection but are military objectives within the meaning of paragraph 2 of Article 52 and that it is not prohibited by the provisions of this Protocol to attack them; ii) take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects; iii) refrain from deciding to launch any 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.24 Keiler argues that the 1977 Protocols effectively ban any attack that may cause extensive civilian losses or damages, even if the attacker uses discrimination and the enemy hides its forces and assets within a civilian population. Thus, a group like Hamas, simply by taking cover among civilians, might render itself immune from attack under the rules of proportionality as defined by the Protocols.25 The Rome Statute, however, expanded the scope of proportionality. Article 8(2)(b)(iv) proscribes “[i]ntentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects . . . which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated” [emphasis added]. As noted above, Article 57(2)(b) of Additional Protocol I prohibits “excessive” self-defense. The Rome Statute in Article 8(2)(b)(iv) added the word “clearly” to modify the word “excessive.” The result is that an act of selfdefense which might have been proscribed under the “excessive” standard of Additional Protocol I might instead be deemed lawful under the Rome Statute’s heightened “clearly excessive” standard. For example, a retaliatory strike against an apartment building used as the launching base for one rocket might be deemed “excessive,” but it might not be deemed “clearly excessive.” The precise meaning of the “excessive” threshold in Additional Protocol I and the “clearly excessive” threshold in the Rome Statute remains unclear. Indeed, some commentators question the overall meaning of the proportionality concept as a limitation on the right of self-defense. Jonathan F. Keiler, for example, argues that “the theory of proportionality is ambiguous, lacks useful precedent, and as a practical matter, is nearly impossible to interpret and enforce.”26 G. Knoops characterized the “excessive” element as follows: Hence, only when the potential damage to civilians or civilian objects is expected to be “excessive,” compared to the anticipated military advantage, such a military attack would be in contravention to the LOAC [law of armed conflict]. Again, it is not about a precise quantitative calculation of potential civilian loss beforehand; what is decisive is a reasonable expectation of potential collateral damage, balanced against the military gains . . . it would be a misconceived equation to portray the alleged excessiveness of a military operation purely on the ultimate result of the action. The question whether such action is deemed to be excessive warrants an evaluation of the totality of the (military 24. Protocols Additional to the Geneva Conventions, 1977, 1125 U.N.T.S. 3. 25. Jonathan F. Keiler, “The End of Proportionality,” 39 PARAMETERS 53, 57-58 (2009). 26. Id., at 63.
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