Laurie Blank on proportionality in the international law of targeting

July 31

Particularly as I scan the social media, the tendency to make judgments about the rights and wrongs of the current Israel-Hamas conflict on the basis of which side has had more civilians killed is hard to resist.  There’s a lot of talk about “disproportionate” killing or attacks, and the underlying assumption is often that assessing proportionality in the law of armed conflict is essentially judged by looking at the effects afterwards and, in sum, asking if a lot more of one side’s civilians got killed than the other side’s.

It’s an easy assumption to make, but altogether wrong as a matter of the actual law of armed conflict.  So I welcome a new measured, careful discussion by Emory Law School professor Laurie Blank, describing what proportionality means in the law of targeting (which is a major part of the law of armed conflict).  It appeared on July 29 on the DC political website, The Hill, where Professor Blank is an op-ed contributor, under the (apt) title “Asymmetries and Proportionalities.”  Professor Blank is a prominent and prolific scholar of the law of armed conflict who runs a law clinic at Emory University covering this field.  I strongly recommend this brief article to journalists who are writing on these topics and a global public that reads them; from brevity and politeness, let me just say that far too much of what is said on the topic is deeply misinformed.  Some highlights, along with some (much more contentious) commentary of my own:

The conflict in Gaza is replete with asymmetries: the number of civilian casualties on either side, the amount of destruction, the types of weapons used and technological capabilities of the Israel Defense Forces (IDF) and Hamas, or the resources poured into shelter and defense of civilians from attacks.

But asymmetric is not synonymous with disproportionate. When we talk of asymmetries, we compare facts to measure the effects or capabilities of the two sides — the IDF has precision-guided munitions whereas Hamas has rockets that cannot be aimed with any discrimination or precision; hundreds of Palestinian civilians and militants have died while a few Israeli civilians and 40-plus Israeli soldiers have died.

Proportionality, however, is a legal term with a specific legal meaning. It is one of a set of fundamental legal obligations that helps to minimize suffering during wartime. The principle of proportionality forbids attacks in which the expected civilian casualties from the attack will be excessive in relation to the anticipated military advantage gained.

That final sentence captures the legal rule–and as you can see, it is not about counting civilians on each side, and it is not even about effects assessed afterwards.  As Blank goes on to note (listing various ways in which this definition means things not commonly understood in current public discussions) the rule is one of “reasonableness” on the part of the commander and it is prospective–as denoted by the key term “anticipated.” It is not a rule of strict liability after the fact for any or all civilian deaths.  Nor (let me add for my own part) is it what we might call a rule of “functional” strict liability after the fact, in which the general rule is correctly stated but somehow, in nearly every application, a rule of reasonableness becomes post-hoc strict liability.  Thus, Blank continues, proportionality

is a prospective analysis, as the wording of key treaty provisions highlights: “expected” civilian casualties; “anticipated” military advantage gained; and “in the circumstances ruling at the time.” Commanders must assess whether the risk of civilian harm is excessive given the anticipated military advantage based on information about the target, about civilians in the area and their patterns of movement, about the weapons being deployed and their known or anticipated blast radii or other consequences, and a host of other considerations. The lawfulness of attacks then depends on whether those assessments were objectively reasonable based on the information available at the time of the attack. Hindsight has no role here.

She goes on to point out key reasons why the legal rule is protective of civilians in circumstances of war.  Consider, she says, the perverse results generated by an effects-based, post-hoc rule of liability, rather than the actual legal rule of proportionality as it exists in the law of armed conflict.  First, an effects-based rule does not give commanders planning an attack a way to know in advance if their conduct will turn out, measured in retrospect, to have been lawful.  An effects-based rule, making them liable or functionally so even after they have taken due care, for any civilian casualties that still occur might draw many commanders simply to “disregard the law entirely as no longer relevant — an invitation to unrestricted warfare and much greater harm to civilians.” If you’re liable as a commander no matter what you did to try and take reasonable care, you might easily conclude that this is a legal game you cannot win–so if winning the war is important, you might as well ditch the law altogether and any reasonable efforts at civilian protection with it.

Second, focusing on the effects on civilians measured afterwards “incentivizes the enemy to simply surround itself with civilians in every conceivable location and circumstance, effectively guaranteeing greater civilian casualties and increased civilian suffering.”  And of course, this is exactly what Hamas has done. Indeed, the essence of Hamas’ means and methods of warfare of combat consists of hiding among and behind the civilian population, and sacrificing them to the gods of global public opinion by raining down rockets on other civilians on the other side so to provoke a response.    Reward behavior and you’ll get more of it; reward co-location among non-combatants and you’ll get more of it. And so we have.

The US and Israel care about the law of armed conflict and they care about civilian harms, but the only real way they have found to respond to the pressures on them by an international community demanding that they internalize all the costs of the violations of the law of war by the other side is … technology.  Precision technology has served as a kind of deus ex machina by which the US or Israel has been able to satisfy military necessities while absorbing the increasing costs of an enemy that defines its method as putting its civilians at risk, not incidentally but as the core of its strategy.  

Frankly, I don’t think this cycle can go on forever, with each new behavioral deficit by Hamas or some similar adversary matched by a technological fix that invites some new form of exploiting civilian status.  Maybe there’s a kind of special Moore’s Law for military technology that says that precision and discrimination technologies will double every few years or something, and stay ahead of the adversary’s behavioral violations–but I rather doubt it. The result of the current dynamic is that the conduct of major non-state armed actors, such as Hamas or Hizbollah or AQAP or Boko Haram or ISIS or the Taliban, grow increasingly violative of the laws of war, and they are incentivized to these behaviors in no small part by the structure of the laws of war as the world seems to want them to be understood.  

It’s an arms race: one side plays in civilians of both sides and the other plays in technology.  But, as I’ve said many times on blogs since 2001, it’s generally much easier and faster for an adversary to find new ways behaviorally to violate the rules of war to its advantage than it is for a military to come up with new technologies by which it can simultaneously fight the enemy and still protect the civilians that the enemy deliberately exploits.

Sooner or later, in my view–I don’t speak for Professor Blank here, and she can’t be held to my commentary–the formal recitation that the rules of war apply equally to both sides, while in actual fact pressing one side to internalize all the costs of protecting civilians, risks breakdown in the rules themselves. The legitimacy of this system of law rests not upon the claim of humanitarianism and the need to put civilians ahead of everything else; it is, rather, that the system is accepted as reciprocal obligations by each side. Each side is independently obliged to follow the rules of war regardless of the other side’s behavior, but believing that over the long run “independent” legal obligations will prevail when the “reciprocity” of legal obligations fails is, in my view, unlikely to remain stable over the long run.

Obligation without reciprocity risks breakdown even faster where one side is pressed to protect the civilians of both sides put at risk because that’s how the other side deliberately wagewar, not merely from indifference to them.  A system of formal reciprocity in the rules of war (each side has the same formal obligations), but also independence of obligation to the rules of war (each side’s obligation is independent of what the other side does, including if the other side violates the rules) over time is likely either to rupture in crisis or else simply have less and less purchase as universal rules.  Different kinds of conflicts, I would guess, will de facto have different kinds of rules, transitory and transactional, but no longer universal.

It remains true, Blank says, that Hamas’

use of the civilian population as a shield — a blatant violation of the law of war — does not in any way absolve Israel of its obligations to comply with the law’s fundamental obligations to protect civilians, including the principle of proportionality. But the effects-based analysis, or numbers game, not only minimizes Hamas’s legal responsibility for such civilian harm, but actually rewards it for exploiting the law’s protections for civilians by suggesting — wrongly — that every civilian death in Gaza is an Israeli war crime.

Quite so.  Numbers of civilian casualties on each side are an easy vehicle for time-pressed journalists, and metrics easily comprehended by the public.  Easy–but, as a way of reaching conclusions about law and liability in armed conflict, and about proportionality in the law of war, quite wrong.

Kenneth Anderson teaches law at Washington College of Law, American University; he is also a non-resident senior fellow of the Brookings Institution, member of the Hoover Institution Task Force on National Security and Law, and senior fellow of the Rift Valley Institute.
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