Protecting State Soldiers, Compatriot Civilians or Foreign Civilians: Proportionality's Meanings at the Tactical, Operational and Strategic Levels of War
46 ISRAEL YEAR BOOK ON HUMAN RIGHTS 171 (2016)
52 Pages Posted: 9 Aug 2018
Date Written: 2016
The following wartime dilemmas of “proportionality” are passionately debated: “Force Protection”: to what extent may a State act to protect its soldiers (“State/compatriot soldiers”), even when it may result in greater civilian harm? “Compatriot Partiality”: to what extent may a State act to insure the safety of civilians under its effective control, such as its citizens (“compatriot/the State’s civilians”), over the safety of other civilians, such as those found on the enemy’s side (“foreign civilians”)? “The Combined Dilemma”: should the level of risk taken by soldiers to reduce potential harm to civilians differ in accordance with the civilians’ identity (compatriots v. foreigners)? These issues are passionately debated both in just war morality scholarship and in international law. Moreover, these two normative discourses are considerably intertwined. Their connection, along with the current legal ambiguity, leads IHL jurists to seek interpretational guidance in the scholarship of just war morality. But, the paper argues that seeking guidance for the IHL concerning the aforesaid issues from just war morality scholarship, in the manner it is commonly done today, is flawed. It is likely that current “law in action” (wartime proportionality norms, as they are actually applied in customary international law) offers a moral approach preferable to the policies commonly advanced in just war scholarship.
Keywords: Force Protection, in Bello Proportionality, Compatriot Partiality
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