Do Soldiers' Lives Matter? A View from Proportionality
Israel Law Review, Vol. 45, No. 1, 2012
17 Pages Posted: 6 Jun 2011 Last revised: 30 Sep 2015
Date Written: June 5, 2011
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
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