The Military Manual (2005) of the Netherlands states that “the humanitarian law of war” limits “military force in order to avoid … unnecessary suffering”. The military advantage at the time of the attack is that advantage anticipated from the military campaign or operation of which the attack is part, considered as a whole, and not only from isolated or particular parts of that campaign or operation. Pursuant to § 170 para. The Report on the Practice of Argentina states that in a case concerning armed operations against insurgents in 1985, “the National Court of Appeals referred to the principle of proportionality, which it considered to be a customary norm based on its repeated doctrinal approbation”. the proportionality principle suffers from significant shortcomings that impact its usefulness as a predictable tool for distinguishing between the lawful and the unlawful, particularly in the context of asymmetrical warfare.3 These shortcomings exist at both a theoretical level, in the abstract, and at a practical level. One type of indiscriminate attack violates the principle of proportionality. Respect for the environment is one of the elements that go to assessing whether an action is in conformity with the principles of necessity and proportionality. ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, The Hague, 14 June 2000, § 50. Upon ratification of the 1977 Additional Protocol I, Austria stated: “Article 57, paragraph 2, of Protocol I will be applied on the understanding that, with respect to any decision taken by a military commander, the information actually available at the time of the decision is determinative.”. In 1994, in a Memorandum on Respect for International Humanitarian Law in Angola, the ICRC stated: All attacks … which may be expected to cause incidental loss of civilian life, injury to civilians or damage to civilian objects which would be excessive in relation to the concrete and direct military advantage anticipated are prohibited. The anticipated military advantage, namely on the one hand the final prevention of using the fuel and the fuel tankers as “driving bombs” or to fuel the insurgents’ militarily used vehicles and on the other hand the at least temporary disruption of the Taliban’s regional command structure fall within the usual, recognized tactical military advantages … The fact that the goal mentioned in second place was not fully achieved is irrelevant for the legal assessment because the expectations at the time of the military action based on the facts are decisive (“ex ante view”, see ICRC Customary IHL [Study] p. 50 …) …, The anticipated civilian collateral damages are also to be assessed from the perspective of the attacker at the time of the attack, rather than with hindsight according to the actual unfolding of events (see also the wording of Art. A/51/10, 1996, Article 20(b)(ii). The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. The Regulations further states: “The rule of proportionality must be respected. To assess whether these claims are accurate, and to flesh out how states interpret the principle in practice, the author and a colleague have undertaken a long-term, multinational empirical study of state practice in interpreting and enforcing the proportionality principle. Rules of conduct of military personnel. According to Oppenheim, civilians “do not enjoy absolute immunity”. The manual further states that “an attack which is launched without making any distinction [between civilians and civilian objects on the one hand and military objectives on the other hand] and which may affect the civilian population or civilian objects in the knowledge that the attack will cause loss of human life, injuries to civilians and damage to civilian objects which would be excessive in the sense of Article 57(2)(a)(iii) [of the 1977 Additional Protocol I]” constitutes a grave breach. This fact is recognised by LOAC and, accordingly, it is not unlawful to cause such injury and damage. …, 128. Military commanders and others responsible for planning, initiating or executing attacks necessarily had to reach decisions on the basis of their assessment of the information from all sources which was available to them at the relevant time. Yet the number of civilians victims had increased alarmingly over the past few years: accordingly, either the rule was not well established and hence not binding; or it existed and could not be applied in armed conflicts; or it existed and was applied, but the results of its application provided the best argument against it. Indeed, the very nature of the principles defy specificity, for they require the balancing of competing considerations and are inherently imprecise. Switzerland’s Military Criminal Code (1927), taking into account amendments entered into force up to 2011, states in a chapter entitled “War crimes”: Articles 112–114 apply in the context of international armed conflicts, including in situations of occupation, and, if the nature of the offence does not exclude it, in the context of non-international armed conflicts. In 2012, in a statement before the UN Security Council during an open debate on children and armed conflict, the deputy permanent representative of the Russian Federation stated: “We … firmly condemn intentional attacks against civilians, including children, as well as … disproportionate … use of force that produces the same result.”. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop. Benin’s Military Manual (1995) requires respect for the principle of proportionality. The Report on the Practice of the Russian Federation considers the principle of proportionality the “weakest point of IHL” because. Paragraph 2.5 of the 1992 Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina requires that hostilities be conducted in accordance with Article 51(5)(b) of the 1977 Additional Protocol I.
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