Proportionality Under International Humanitarian Law (IHL): The ‘Reasonable Military Commander’ Standard and Reverberating Effects

21 Pages Posted: 17 Feb 2018 Last revised: 18 Jun 2018

See all articles by Ian Henderson

Ian Henderson

Law School, University of Adelaide; Asia Pacific Centre for Military Law

Kate Reece

Government of the Commonwealth of Australia - Royal Australian Air Force

Date Written: January 24, 2018

Abstract

The principle of proportionality protects civilians and civilian objects against expected incidental harm from an attack that is excessive to the military advantage anticipated from the attack. However, despite its status as a fundamental norm of IHL, key terms are not defined in relevant treaties nor benefit from critical judicial explanation. This has caused challenges for both academics and military commanders alike in explaining and applying the test for proportionality.

The article expands upon two points that were raised and generated interesting discussion at The Second Israel Defense Forces International Conference on the Law of Armed Conflict during a panel that dealt with contemporary issues in proportionality. Those two issues are: a. What does the “reasonable military commander” standard for assessing proportionality entail? b. Should “reverberating effects” (i.e., collateral effects that are only expected to materialize in the long term) be accounted for as part of the assessment of collateral damage?

Keywords: International Armed Conflict, Law of Armed Conflict, LOAC, International Humanitarian Law, IHL, Targeting, Proportionality, Precautions in Attack, Reasonable Military Commander, Reverberating Effects, Indirect Effects, Collateral Damage

Suggested Citation

Henderson, Ian and Reece, Kate, Proportionality Under International Humanitarian Law (IHL): The ‘Reasonable Military Commander’ Standard and Reverberating Effects (January 24, 2018). Vanderbilt Journal of Transnational Law, Vol. 51, No. 3, 835, 2018, U. of Adelaide Law Research Paper No. 2018-43, Available at SSRN: https://ssrn.com/abstract=3108324 or http://dx.doi.org/10.2139/ssrn.3108324

Ian Henderson (Contact Author)

Law School, University of Adelaide ( email )

Australia

Asia Pacific Centre for Military Law

Melbounre
Australia

HOME PAGE: http://www.apcml.org

Kate Reece

Government of the Commonwealth of Australia - Royal Australian Air Force ( email )

Canberra
Australia

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