27 Winter 2025 and situational) information available, including the overall military advantage which was initially anticipated.27 Michael Wells-Greco analyzed the distinction between “excessive” and “clearly excessive”: Despite being called the proportionality rule, Additional Protocol I uses the term “excessive,” rather than “disproportionate” and accepts, by implication, the occasional unavoidability of incidental losses which are not “excessive.” Article 8(2)(b)(iv) of the Rome Statute of the International Criminal Court is worded similarly to Article 51(5)(b), although it requires that the incidental damage be “clearly excessive,” not just “excessive.” As Watkin writes, the fact that the word “clearly” was added to the offence in that statute relating to the excessive use of force arguably reflects a concern over the quantum of collateral damage that might attract criminal sanctions. Article 8(2)(b)(i) of the Rome Statute provides that launching an indiscriminate attack resulting in loss of life or injury to civilians or damages civilian objects is also a war crime. The application of Article 8(2)(b)(iv) requires, inter alia, an assessment of: (a) the anticipated civilian damage or injury; (b) the anticipated military advantage; (c) and, formulaically, whether (a) was “clearly excessive” in relation to (b).28 As Keiler noted: The problem with proportionality as a law of war concept is twofold: It is subject to misinterpretation by the international media, nongovernmental organizations, and governments; and some of the most restrictive and logically twisted interpretations of the doctrine have a legitimate grounding in existing – albeit damaging – international law. What the doctrine of proportionality does not do, contrary to its more misinformed proponents, is reduce warfare to a series of tit-for-tat attacks. “Disproportion” can be seen as the edge of an effort to delegitimatize action by western nations against weaker countries or nonstate actors. Israel was castigated for responding to indiscriminate rocket fire with precision air attacks, as if a “proportional” response – indiscriminate Israeli rocket fire – would be preferable and legal . . . The United States was not limited to striking a Japanese naval base in response to the attack on Pearl Harbor. In sum, the doctrine of proportionality has little relevance to casus belli or jus ad bellum (the justice of the cause under traditional just war theory). Nor does the doctrine limit in a legal sense the legitimate military objectives a belligerent may choose to pursue; it regulates in part, to the extent it limits anything, the manner in which military objectives are pursued, and this is certainly the sense in which it is used in modern treaties.29 Interpretations of Proportionality Knoops identified the elements of an offense arising from a violation of Article 8(2) (b)(iv) of the Rome Statute as (i) establishing the anticipated civilian damage or injury; (ii) establishing the anticipated military advantage; and (iii) whether element (i) was “clearly excessive” in comparison to element (ii).30 In addition, Knoops argued that proof of criminal intent must be established, rather than mere negligence.31 The Israeli Supreme Court regards the proportionality limitation on Israel’s self-defense rights as part of customary international law, and as part of Israeli law. The Court defined proportionality as follows in the Public Committee Against Torture case: 27. G-J. A. Knoops, “The Duality of the Proportionality Principle within Asymmetric Warfare and Ensuing Superior Criminal Responsibilities,” 9 INT'L CRIM. L. REV. 501, 509, 513 (2009). 28. Michael Wells-Greco, “Operation ‘Cast Lead’: Jus In Bello Proportionality,” 57 NETHERLANDS INT'L L. REV. 397, 406 (2010). 29. Id., at 56-57. 30. Supra note 27, at 510. 31. Id., at 508.
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