The Concept of Proportionality in War Research Paper

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Proportionality in War

The principle of proportionality in war is something that is hotly contested and debated. How the principle could and should apply in terms of response to military action or aggression, the incidence or possibility of civilian casualties and other things are all considerations when it comes to proportionality in war. In general terms, the argument to be made is that there should be consistence between a strike and a counterstrike. Obviously, the idea is to win whatever conflict is at hand. However, there are limits to this approach. For example, responding to a cruise missile strike with a nuclear strike is obviously not going to fly. However, there are some times where proportionality is clouded and made difficult to figure out. At the very least, it can be controversial. The dual nuclear strike on Japan during World War II is one example. The manner in which the often-stateless armies of today unapologetically use civilians as human shields and otherwise ignore the commonly held laws of war is another. Regardless of what side one happens to come down on in the modern age, it is clear that while the rules may not have changed in the eyes of many, the playing field and how certain people are playing has certainly changed. This means that it should perhaps be considered whether the traditional rules should apply and/or whether there should be more of a focus on winning via any reasonable means rather than worrying about proportionality and fairness. Even with any expansion of guidelines and rules when it comes to war, the usual rules about avoiding civilian casualties and not using nuclear in any instance unless someone else strikes first would generally hold. Even so, the fact that that the rules of engagement and war are often ignored by today's fighters and rogue regimes is something that cannot be ignored and there is the suggestion by many that while devolving to their level of depravity is not acceptable, staying with the honorable and traditional rules is not a good idea either given how soulless the other side can often be.

Analysis

Even with the fact that the landscape and paradigm of war and how it could or should be waged is changing, it is important to consult all relevant and applicable sources. Of course, one of the "gold standard" sources when it comes to the rules, expectations and laws of war is the Geneva Convention and its associated guidelines. One part of the Geneva rules set that is important to know about and cite when it comes to this topic is Article 51. That is the section that refers to the protection of the civilian population. The rules about that subject are pretty basic. It is noted that they shall "enjoy general protection against dangers arising from military operations". Further, they are "not to be the object of the attack. Lastly, there is the idea that indiscriminate attacks where civilians are caught up in the conflagration are not allowed [footnoteRef:1]. Article 57 of that same convention is relevant and has similar rules. Indeed, the first item in that section says that "in the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects". Of course, that mean avoiding the killing and harming of civilians, their homes and their other property whenever possible [footnoteRef:2]. These parts of the law were passed in the 1970's. A good and obvious example where a military action that happened would not be allowed for under this part of the law would be the dual nuclear bombs that were levied against Hiroshima and Nagasaki. Those two bombings were clearly civilian rather than military in nature and they were also surely indiscriminate in nature. As such, those bombings would have violated both of those parts of the Geneva conventions. [1: ICRC. 2017. "Treaties, States Parties, And Commentaries - Additional Protocol (I) To The Geneva Conventions, 1977 - 51 - Protection Of The Civilian Population." Ihl-Databases.Icrc.Org. https://ihl-databases.icrc.org/ihl/WebART/470-750065.] [2: ICRC. 2017. "Treaties, States Parties, And Commentaries - Additional Protocol (I) To The Geneva Conventions, 1977 - 57 - Precautions In Attack." Ihl-Databases.Icrc.Org. https://ihl-databases.icrc.org/ihl/WebART/470-750073?OpenDocument.]

Another set of rules and guidelines that is commonly cited and pointed to actually refers specifically to the subject of bombing and that would be the ICTY NATO bombing report. There was actually a section, starting with paragraph 48, from that report that specifically pertains to proportionality and bombing, of course, is the main focus of the same. The verbiage of the section makes a good amount of sense and includes the phrase "it is relatively simple to state that there must be an acceptable relation between the destructive effect and undesirable collateral effects".

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The section goes on to use the example of a refugee camp and states that the bombing of such a camp would not be allowed for and that would hold true even if the people in the camp were "knitting socks for soldiers". On the other hand, they note that bombing an ammunition dump would be allowed for and this would remain true even if there was a farmer that happened to be plowing in the area and was caught up as a civilian casualty as a result. Indeed, since the target of the bombing was hence legitimate and since it is unlikely that the people ordering the bombing knew the farmer was nearby, the bombing would be allowed for under NATO guidelines. That being stated, there is the concession that valuing a military target or military resources is easy enough but doing the same with human life that is lost or affected due to a bombing or other war action is not nearly as easy [footnoteRef:3]. [3: ICTY. 2017. "Press | International Criminal Tribunal For The Former Yugoslavia." Icty.Org. http://www.icty.org/en/press/final-report-prosecutor-committee-established-review-nato-bombing-campaign-against-federal#IVA64d.]

The NATO rules section in question goes on to discuss the matter of proportionality at further length. First, it notes that it has to be asked what the "relative value" is when it comes to the military advantage that is gained by the potential injury to non-combatants and/or the damage to civilian objects as a result of a strike. Indeed, even if a military- or war-related target is of high value, that can easily be negated by the fact that it is in the middle of a bunch of civilians such as around houses, busy roads or a marketplace. Of course, the location of that target may be among civilians by design with the express purpose of avoiding a military strike on those grounds. Even so, there is the question of what is included when "totaling your sums" and what the "standard of measurement" happens to be when it comes to deciding whether the target should be attacked or left alone. There is also the question of whether and to what extent that the attacking force will expose his own people to danger as part of going after the target in a way that limits or at least mitigates civilian casualties [footnoteRef:4]. Perhaps a good and more modern example of this would be the city of Fallujah in the aftermath of the fall of Saddam Hussein. There is no doubt that the city was full of combatants and other problems. As such, many might suggest that the city should just be destroyed completely so as to preserve human life for enemies of the combatants and protect the people that they would kill. However, the loss of civilian life would be rather huge if that was done and it would destroy the homes and property or the people that lived there. As such, the American and other soldiers involved ended up going door-to-door so as to only destroy and harm the items and things that were related to the armed resistance and not the civilians or their property. [4: ICTY. 2017. "Press | International Criminal Tribunal For The Former Yugoslavia." Icty.Org. http://www.icty.org/en/press/final-report-prosecutor-committee-established-review-nato-bombing-campaign-against-federal#IVA64d.]

As noted earlier in this report, there is the situation where locals and militants in an area will wage a war, on their own or in concert with a state, when it comes to armed conflict. The 2015 edition of the "War Manual" actually addresses a lot of this. Indeed, section 5 of that publication has subtopics such as civilians taking part in hostilities as well as the subject mentioned in this report, that being proportionality in conducting attacks. The last of those is section 5.12 and that particular part is extensively referenced in the footnotes of the document. One interesting thing to note about proportionality in the American military context is that they specifically note that proportionality is only needed as a guidepost and reference point when there are civilians in question. Indeed, it says "In conducting attacks, the proportionality rule only need be applied when civilians or civilian objects are at risk of harm from attacks on military objectives. It would not apply when civilians or civilian objects are not at risk". It then defines the harm that can….....

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