Strategic and Cultural Considerations

Proportionality requires weighing the concrete and direct military advantage. Should the proportionality of an attack be affected by broader considerations, such as the context of the conflict and its circumstances? More specifically, can cultural or strategic considerations—such as each party’s capabilities, military goals or aims, sensibilities, and vulnerabilities—be weighed as part of the military advantage anticipated from an attack? The argument raised in this chapter is that in principle, states should not be differentiated according to their strategic and cultural sensitivities. However, there are state-specific factors that should be considered in assessing the application of the principle of proportionality. Examples of such factors are the technological abilities, defensive systems, and relative power of the parties to the conflict.

Conclusion

10.1093/oso/9780190235994.003.0005 ◽

2018 ◽

Author(s):

Nancy Whittier

Keyword(s):

Sexual Assault ◽

Sex Offenders ◽

Case Studies ◽

Sex Trafficking ◽

Personal Narratives ◽

Colleges And Universities ◽

Relative Power ◽

Single Issue ◽

Government Surveillance ◽

Chapter 5, the book’s conclusion, draws comparative theoretical lessons from all three cases. It discusses six features of relationships between frenemies: risks to participants’ reputation; reliance on hybrid or compromise frames or goals; focus on single-issue or specific goals; the importance of emotional and personal narratives; lack of more extensive collaboration or institutionalization of the relationships; and outcomes that depend on the relative power of participants. The chapter discusses implications for ongoing policy regarding sex offenders, sex trafficking, and government surveillance. The paths of activism around the case studies have influenced recent issues of sexual assault, including in the military, in colleges and universities. Feminists have influenced these developments, but not alone. Frenemies, including both feminists and conservatives, continue to be engaged in these issues and to shape their paths.

Non-lethal weapons

Zbornik Pravnog fakulteta Sveučilišta u Rijeci ◽

10.30925/zpfsr.38.2.6 ◽

2017 ◽

Vol 38 (2) ◽

pp. 831-853

Author(s):

Elisabeth Hoffberger

Keyword(s):

Human Rights ◽

Armed Conflict ◽

Right To Health ◽

Human Rights Law ◽

Right To Life ◽

Geneva Conventions ◽

Military Objective ◽

The Right ◽

If thinking about weapons, one generally thinks about lethal technology. However, an abundance of so-called non-lethal weapons, a technology not aimed at killing but merely incapacitating the human target or military objective, is also being deployed both within and outside the ambit of armed conflict. Since non-lethal weapons do not necessarily implicate a zero chance of mortality, but often lead to severe wounds and tremendous suffering, the use and deployment of such weapons raise strong humanitarian and human rights concerns. The prohibition to cause superfluous injuries and unnecessary suffering, as well as the prohibition of indiscriminate attacks are, amongst others, one of the most relevant provisions potentially having an influence on the deployment of nonlethal technology in armed conflict. However, the invocation of the principle of proportionality may lead to the justification of the use of non-lethal weapons on the grounds that the military advantage anticipated was greater than the human suffering caused. Insofar, one must ask whether there is a “red-line”; where the almost inflationary invocation of the principle of proportionality may defeat the object and purpose of the Geneva Conventions and therefore render the deployment and use of non-lethal technology illegal. Apart from the battlefield, non-lethal weapons are also being deployed in lawenforcement scenarios, where human rights law plays a pivotal role. In this regard, one must not look merely at the prohibition of torture and inhuman or degrading suffering and the right to life but also at the right to health, a presumably underestimated principle curbing and shaping the use of non-lethal technology outside the ambit of armed conflict.

The Rule of Law and the Role of Strategy in U.S. Nuclear Doctrine

International Security ◽

10.1162/isec_a_00407 ◽

2021 ◽

Vol 45 (4) ◽

pp. 126-166

Author(s):

Scott D. Sagan ◽

Allen S. Weiner

Keyword(s):

United States ◽

Armed Conflict ◽

The United States ◽

Nuclear War ◽

Law Of Armed Conflict ◽

Conventional Weapons ◽

Chain Of Command ◽

The Law ◽

Abstract In 2013, the U.S. government announced that its nuclear war plans would be “consistent with the fundamental principles of the Law of Armed Conflict” and would “apply the principles of distinction and proportionality and seek to minimize collateral damage to civilian populations and civilian objects.” If properly applied, these legal principles can have a profound impact on U.S. nuclear doctrine. The prohibition against targeting civilians means that “countervalue” targeting and “minimum deterrence” strategies are illegal. The principle of distinction and the impermissibility of reprisal against civilians make it illegal for the United States, contrary to what is implied in the 2018 Nuclear Posture Review, to intentionally target civilians even in reprisal for a strike against U.S. or allied civilians. The principle of proportionality permits some, but not all, potential U.S. counterforce nuclear attacks against military targets. The precautionary principle means that the United States must use conventional weapons or the lowest-yield nuclear weapons that would be effective against legitimate military targets. The law of armed conflict also restricts targeting of an enemy's leadership to officials in the military chain of command or directly participating in hostilities, meaning that broad targeting to destroy an enemy's entire political leadership is unlawful.

Incidental Harm and the Analysis of Proportionality

Proportionality in International Humanitarian Law ◽

10.1093/oso/9780197556726.003.0005 ◽

2021 ◽

pp. 73-106

Author(s):

Amichai Cohen ◽

David Zlotogorski

Keyword(s):

Collateral Damage ◽

The Military ◽

Two Sides ◽

Comprehensive Discussion

The principle of proportionality requires weighing the expected military advantage from an attack against the anticipated harm to civilians and civilian objects. This chapter discusses the civilian side of the proportionality equation. It presents the most comprehensive discussion of this subject in the existing literature. The following issues are scrutinized: the meaning of the term civilian; the kinds of harm that the attacking party should consider (damage to persons and objects, economic harm, damage to the environment); the need to take into account indirect and reverberating effects of the attack; the required certainty in anticipating that the attack’s harm would be inflicted; and finally—what constitutes “excessive” incidental harm. The chapter then discusses how the two sides of the proportionality analysis must be weighed and compared. Is proportionality merely any imbalance between the collateral damage as compared with the military advantage, or is a higher threshold required? From whose viewpoint is proportionality examined and under what standard of examination?

Sul principio di proporzionalitŕ a Gaza, ovvero quando il fine non giustifica i mezzi

DIRITTI UMANI E DIRITTO INTERNAZIONALE ◽

10.3280/dudi2009-002005 ◽

2009 ◽

pp. 319-332

Author(s):

Luisa Vierucci

Keyword(s):

Gaza Strip ◽

Relevant Information ◽

Prima Facie ◽

International Community ◽

Military Operations ◽

The Gaza Strip ◽

- The Operation Cast Lead launched by Israel in the Gaza Strip on December 27, 2008 has attracted strong condemnation by the international community for its disproportionate character. While there is no doubt that the conduct of the conflict by Hamas was in breach of the principle of proportionality, the evaluation of the military operations carried out by Israel in light of that principle is more complex. As we have attempted to show, the assessment of proportionality in contexts similar to those of the Gaza Strip has to be conducted both in a ius ad bellum and ius in bello perspective, the two approaches being so interconnected as to make the violation of the in bello proportionality foreseeable. However, this prima facie finding has to be tested against the assessment of proportionality conducted for each relevant incident - an exercise that can be made only when all relevant information is available.

Judicial Review and Investigations

Proportionality in International Humanitarian Law ◽

10.1093/oso/9780197556726.003.0013 ◽

2021 ◽

pp. 201-222

Author(s):

Amichai Cohen ◽

David Zlotogorski

Keyword(s):

International Law ◽

Judicial Review ◽

Humanitarian Law ◽

Policy Review ◽

Specific Policy ◽

Ex Post ◽

Alternative Approach ◽

Ex Ante ◽

This chapter focuses on the external review of the application of the principle of proportionality. The chapter first considers judicial review of the application of proportionality. Two kinds of review are compared: the ex ante review applied by courts before an action is taken and the ex post review, including criminal investigations. The authors suggest that both kinds of judicial review are ineffective ways to apply the principle of proportionality. An alternative approach is then considered: creating permanent Humanitarian Law Commissions, with the authority to investigate possible violations of the principle of proportionality. Humanitarian Law Commissions could monitor the propriety of criminal or disciplinary investigations conducted by the military; but, more importantly, they could also engage in policy review—that is, they could review ex post whether a specific policy or operation was conducted in accordance with international law, and issue recommendations for future military actions. Such recommendations may help clarify for the military some of the more complex norms they are required to implement.

Atteikšanās no militārā dienesta izpildes pacifisma vai principiālu iebildumu dēļ

Tiesības un tiesiskā vide mainīgos apstākļos ◽

10.22364/juzk.79.50 ◽

2021 ◽

pp. 445-451

Author(s):

Viktorija Katajeva ◽

Keyword(s):

Military Service ◽

Fundamental Rights ◽

Legal Provisions ◽

Freedom Of Thought ◽

The Right ◽

The purpose of the article is twofold: to determine whether the legal provisions of the Military Service Law contain restrictions of the refusal to perform military service due to pacifism or principled opposition; and to estimate whether such restrictions of fundamental rights are justified. The author concludes that the existing regulation does not comply with the principle of proportionality and thereby can be recognized as unjustifiable violation of the right to freedom of thought, conscience and religion.

Procedural Aspects of Proportionality

Proportionality in International Humanitarian Law ◽

10.1093/oso/9780197556726.003.0012 ◽

2021 ◽

pp. 177-200

Author(s):

Amichai Cohen ◽

David Zlotogorski

Keyword(s):

Decision Making ◽

Decision Maker ◽

Procedural Approach ◽

Mode Of Operation ◽

Decision Making Processes ◽

The Military ◽

Legal Advisor

In this chapter, it is suggested that the focus of the application of the principle of proportionality in practice lies in the procedural aspects of the principle—the precautions taken before an attack, the decision-making processes, and the institutions put in place in order to verify whether the rule of proportionality was applied. Based on this insight, the chapter concludes proportionality is a highly bureaucratized mode of operation, in which a specific set of procedures is followed. These procedures are justified both because they create a heightened awareness of the value of human lifes, and because they provide an effective way to control the actions of soldiers. The chapter then discusses several aspects of this procedural approach: the proper decision-maker; the requirement to provide advanced warnings; the duty to gather intelligence before an attack is launched; and the role of the military legal advisor.

Verhältnismäßigkeit im Humanitären Völkerrecht: Gewissensentscheidungen aus dem Blickwinkel des militärisch operativen Planungsprozesses

Sicherheit & Frieden ◽

10.5771/0175-274x-2020-1-43 ◽

2020 ◽

Vol 38 (1) ◽

pp. 43-49

Author(s):

Sophie Scheidt

Keyword(s):

Point Of View ◽

Decision Makers ◽

International Humanitarian Law ◽

Military Force ◽

Humanitarian Law ◽

Military Planning ◽

Technological Developments ◽

Subjective Element ◽

According to international humanitarian law, military decision makers must balance military necessity and humanitarian considerations when using military force against an adversary on a case-by-case basis. Determining whether or not, from a normative point of view, there is proportionality between the values weighed against each other, this article examines how these criteria are applied in the military planning and decision-making process. It discusses how the subjective element of the principle of proportionality is influenced by current technological developments in the field of artificial intelligence and what implications this might have for the legal and ethical responsibilities of military decision makers.

Democrazy—Dem Go Craze, O: Monitoring the 1999 Nigerian Elections

Issue A Journal of Opinion ◽

10.1017/s1548450500005862 ◽

1999 ◽

Vol 27 (1) ◽

pp. 29-33

Author(s):

Darren Kew

Keyword(s):

Transition Program ◽

The Political ◽

High Stakes ◽

Political Class ◽

Soccer Match ◽

The Public ◽

In many respects, the least important part of the 1999 elections were the elections themselves. From the beginning of General Abdusalam Abubakar’s transition program in mid-1998, most Nigerians who were not part of the wealthy “political class” of elites—which is to say, most Nigerians— adopted their usual politically savvy perspective of siddon look (sit and look). They waited with cautious optimism to see what sort of new arrangement the military would allow the civilian politicians to struggle over, and what in turn the civilians would offer the public. No one had any illusions that anything but high-stakes bargaining within the military and the political class would determine the structures of power in the civilian government. Elections would influence this process to the extent that the crowd influences a soccer match.