Chicago Journal of International Law


The laws of war are undergoing a fundamental transformation. The first step was the unmooring of the obligations of states and armies from the binds of reciprocity-the prospect that violations should be avoided because they will result in comparable reprisals from the other side-that began with the Geneva Conventions of 1949 and culminated in the 1977 Additional Protocols (AP I and II). The second major step-sill an ongoing process-has been to substitute for the threat of reprisals the grounding of these obligations in enforceable, positive law. What started haltingly with the promulgation of several "grave" offenses in Geneva has-with the establishment of the International Criminal Court, international criminal tribunals for the former Yugoslavia and Rwanda, conventions against torture and other practices, and the sustained pressure of nongovernmental organizations-reshaped the international legal landscape. The focus of this article is on the so-called principle of "proportionality," which regulates the conduct of warfare in an effort to limit harm to civilians during otherwise legitimate armed conflict. I use the qualifying adjective "so-called" because "proportionality" in this context is a misnomer. The actual obligation, as set forth in AP I, speaks in terms of prohibiting (and deferring) attacks expected to cause incidental civilian losses "which would be excessive in relation to the concrete and direct military advantage anticipated." Neither the text nor the policy of IHL requires some form of "balancing" or use of a "sliding scale" to ensure that the military objective is "proportionate," in the sense of being commensurate with the extent of civilian losses. What is required is that the militaU use no more force than necessary to accomplish concrete, direct militaU objectives. The proposed "excessive loss" formulation is not only truer to the text of AP I but provides a sounder, more principled basis for judging violations, for insisting on military commander compliance-than the more elastic, manipulable "proportionality" formulation, which invites commentators and tribunals to second-guess militaU objectives and compare and weigh essentially non-comparable factors.