28 No. 73 JUSTICE The test of proportionality stipulates that an attack on innocent civilians is not permitted if the collateral damage to them is not commensurate with the military advantage (in protecting combatants and civilians). In other words, the attack is proportionate if the advantage arising from achieving the proper military objective is commensurate with the damage caused by it to innocent civilians.32 The Court then provided an example demonstrating the difficulty in assessing proportionality: The rule is that combatants or terrorists may not be attacked if the expected damage to innocent civilians in their vicinity is excessive in relation to the military benefit of attacking them . . . Making this balance is difficult. Here too we need to proceed on a case by case basis, while limiting the area of the dispute. Take an ordinary case of a combatant or terrorist sniper who is shooting at soldiers or civilians from the balcony of his home. Shooting at him will be proportionate even if as a result an innocent civilian who lives next to him or who passes innocently next to his home is hurt. This is not the case if the house is bombed from the air and dozens of residents and passers-by are hurt… The difficult cases are those that lie in the area between the extreme examples.33 In Physicians for Human Rights v. IDF Commander, the Israeli Supreme Court noted: When these, as sometimes happens, enter a combat zone – and especially when terrorists turn the local inhabitants into “human shields” – everything must be done in order to protect the lives and dignity of the local inhabitants. The duty of the military commander, according to this basic rule, is twofold. First, he must refrain from operations that attack the local inhabitants. This duty is his “negative” obligation. Second, he must carry out acts required to ensure that the local inhabitants are not harmed. This is his “positive” obligation . . . Both these obligations – the dividing line between which is a fine one – should be implemented reasonably and proportionately in accordance with the needs of the time and place.34 Wells-Greco agreed with the Israeli Supreme Court’s case-by-case approach to proportionality as the most appropriate means of protecting civilians in a manner consistent with the requirements of Additional Protocol I to the 1949 Geneva Conventions. He described the complexities inherent in determining how to measure proportionality: In applying the principle of proportionality an assessment could be based on each bombing separately, or each operation, consisting of an integrated holistic programme of bombings, or . . . one might try and assess the totality of civilian lives lost against military advantages gained by the war as a whole. Attacking states (or coalitions) will generally prefer to assess proportionality on a macro scale, applying the principle to the campaign as a whole, rather than to the damage caused by each individual attack; this allows attacks with greater collateral damage to be balanced by attacks that cause less collateral damage. In contrast, with cumulative assessments, Stone asserts that one can also justify loss of civilian life in terms of saving more civilian lives later in the campaign. Such an interpretation would, if correct however, effectively deprive civilians of the protection of Article 57. It seems relatively accepted, and considered extensively by Fenrick, that attacks are to be considered holistically, and not 32. Public Committee Against Torture in Israel v. the Government of Israel, HCJ 769/02, [2006] (2) ISRAEL LAW REPORTS 459, 505 (Dec. 14, 2006). 33. Id., at 506. 34. Physicians for Human Rights v. IDF Commander, HCJ 4764/04, [2004] ISRAEL LAW REPORTS 200, 208, ¶ 11 (May 30, 2004).
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