Proportionality has legal provisions in place
which adheres to the values set out in the principle of distinction. For example
Article 53 of the additional protocols to the Geneva Convention1,
establishes protection for civilians against dangers during military operations,
while developing means which limit methods of warfare and weapons. In addition,
European law sets out the principle of proportionality, in Article 5 of the
treaty on the European Union2,
under this treaty ‘the action must be limited to what is necessary to achieve
the objectives of the Treaties’3.
The principle of proportionality and distinction, are the demonstration of a
humanitarian and military fusion. Professor John Kennedy noted the main
criticism of the two principles is the ambiguity and effectiveness of the
principles when applied in ‘good faith’4.
After spending time in the USS independence, during the Pursian golf in
19985, he observed that the ‘modern military is
proud of its relationship to law’6.
It is a military that seeks to have confidence, in the legitimacy of its objective
by law. While also, being legitimate ‘in its own eyes’7.
It is required in IHL that, ‘in the conduct
of military operations, constant care shall be taken to spare the civilian
population civilians and civilian objects’8,
this applies to the attacking party of a conflict, to avoid incidental harm as
a result of its own operations (precautions in attack)9
. This also applies to the attacked party, to take the necessary measures to
protect its civilian population from the attack of its enemy (precaution
against the effect of attack)10.
During any attack, the principle of precaution in attack must be applied with
the principle of proportionality. Meaning, even though the expected injury to civilians,
and damage to civilian property, is equivalent to the military advantage of the
pursued attack, the attacking party must still take precautions, and chose
means and methods of warfare which will avoid incidental harm to civilians.
Article 57(2) of the additional protocol I11,
focuses on the requirements for precaution, which during the Kosovo operation
weren’t applied, leaving many targeting mistakes. For example, an attack
against the Lusana Bridge north of Pristina on 1 May that hit a civilian bus,
and the attack against a military barracks in Surdulica on 31 May that hit a
hospital. ‘Civilian casualties resulted from each of these attacks’12.
Under IHL, there are specific prohibitions
for the protection of the civilian population, specific acts or omission which
can constitute a war crime. The most apparent prohibition, of the principle of
distinction, is ‘the prohibition of direct attacks against civilians’13.
‘Disproportionate attacks may give rise, to the inference that civilians were
the actual objective’14.
Constituently it has been held by the tribunal, that the statute must be
interpreted using ‘its natural and ordinary meaning in the context in which they
The appeals chambers observes that the definition of ‘civilian’ found in article 50(1) of Additional Protocol I16,adheres
to ‘the fundamental character of the notion of civilian in international
The Setako Appeal18,
had been brought to the appeal chamber, as Setako had been found to have
ordered the killing of eleven people. Using the findings of the trial chamber,
the appeal chamber concluded that Setako, had ordered the killing of nine or
ten Tutsis, he had brought in his vehicle to the Mukamira camp, and his
instructions had orchestrated their deaths. The findings showed that Setako,
had no intention to spare the lives of the Tutsis, he brought to the camp that day,
and his order was the result of their death. In IHL the term ‘attack’, doesn’t
only refer to offensive operations, but also ‘acts of violence against the
adversary, whether in offence or in defense’19.
Under the Statute of the International
Criminal Court, ‘intentionally 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’20
amounts to an international war crime. Whether such attack is offensive or
In the prosecutor v jadranko21,
the trial judge inferred from the weapons used, that the ‘perpetrators wanted
to affect Muslim civilians’22,
the ‘home-made mortars’23
are difficult to guide, as a result they are likely to hit non -military objects.
These ‘blind weapons’24
were sent to Stari Vitez, where they killed Muslim civilians and caused