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Do Soldiers' Lives Matter? A View from Proportionality

17 Pages Posted: 6 Jun 2011 Last revised: 30 Sep 2015

Reuven (Ruvi) Ziegler

University of Reading School of Law; Refugee Studies Centre; Refugee Law Initiative; Israel Democracy Insttitute; University of Oxford Faculty of Law; Lincoln College

Shai Otzari

University of Haifa

Date Written: June 5, 2011

Abstract

A military operation is about to take place during an ongoing international armed conflict; it can be carried out either by aerial attack, which is expected to cause c1 deaths of enemy civilians, or by using ground troops, which is expected to cause c2 deaths of enemy civilians (c2 less than c1) as well as deaths of compatriot soldiers. Does the principle of proportionality in International Humanitarian Law (IHL) impose a duty on an attacker to expose its soldiers to life-threatening risks in order to minimize or avert risks of collateral damage to enemy civilians? If such a duty exists, what is its justificatory basis, and which considerations determine its scope? In other words, the queries are whether (compatriot) soldiers’ lives matter, and, if they do, which justifications may determine their worth.

The paper presents an analytic framework, under the current IHL legal structure, following a proportionality analysis. The proposed framework identifies five main positions for addressing the above queries. The five positions are arranged along two “axes”: a value “axis,” which identifies the value assigned to the lives of compatriot soldiers in relation to enemy civilian lives; and a justification “axis,” which outlines the justificatory bases for assigning certain values to lives of compatriot soldiers and enemy civilians: intrinsic, instrumental or a combination thereof. The paper critically assesses these positions, and favours a position which attributes a value to compatriot soldiers’ lives, premised on a justificatory basis which marries intrinsic considerations with circumscribed instrumental considerations, avoiding the indeterminacy and normative questionability entailed by more expansive instrumental considerations.

Keywords: force protection, proportionality, feasibility, international humanitarian law, analytic model, intrinsic justification, instrumental justification

Suggested Citation

Ziegler, Reuven (Ruvi) and Otzari, Shai, Do Soldiers' Lives Matter? A View from Proportionality (June 5, 2011). Israel Law Review, Vol. 45, No. 1, 2012; Hebrew University of Jerusalem Legal Research Paper No. 03-11. Available at SSRN: https://ssrn.com/abstract=1858086

Reuven (Ruvi) Ziegler (Contact Author)

University of Reading School of Law ( email )

Foxhill House
Whiteknights House
Reading, Berkshire RG6 6AH
United Kingdom
01183787518 (Phone)

Refugee Studies Centre ( email )

Queen Elizabeth House
3 Mansfield Road
Oxford, OX1 3TB
United Kingdom

Refugee Law Initiative ( email )

Senate House
Malet Street
London, WC1E 7HU
United Kingdom

Israel Democracy Insttitute ( email )

4 Pinsker St.
Jerusalem
Israel

University of Oxford Faculty of Law ( email )

St. Cross Building
St. Cross Road
Oxford, OX1 3UJ
United Kingdom

Lincoln College ( email )

Lincoln College
Oxford, OX1 3DR
United Kingdom

Shai Shalom Otzari

University of Haifa ( email )

Mount Carmel
Haifa, 31905
Israel

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