Proportionality in

International Law

MICHAEl NEWTON· LARRY MAY

OXFORD

.r. --", '1.p:T-~C t"

"'.0$ z.,'ll ' ",,'

!.{

Proportionality in International Law

MichaeL NewtonYA NDER B ILT UN IV ERS ITY

Larry MayVAN D ERUI LT U NI VERSIT Y

OXFORDl1NlVBRSITY puss

OXFORDUN IVBIl.BIT Y pu ss

O:iford UllivrrJity Press is a dtp"rtmmt oftbe Univrrsity ofO:iford. It fllrtlJ rrs tbr Ullivmi/y 'sobjretivr of0 :((11",(( ill rrsearch, scholarship, fl1ldrd"cat ioJlby publishing fvorldfj,;Jr.

Madrid

Guatemalal ha iland

Ox fo rd New YorkAuckland Cape Town Dar es Salaam Ho ng Kon g Karachi Kuala LumpurMelbo urne Mexico C ity Nairobi New Delh i Shangha i Taipei Toronto

With offices inArgentin a Austri a Brazil Chile Czech Republic France G reeceIta ly J;tpan Poland Portu gal Sing apo re South Korea Swit zerlandUkraine Vicrnam

H ungaryTurkey

Oxford is a rcgisecred trademark ofO xford University Press in th e U K and certain other countries.

Published in t he United Stares ofAmerica byO xford University Press198 Madison Avenue, New York, N Y 10016

© Oxford Un iversity Press 1.014

All right s reserved . No part of this publicatio n may be reprod uced, sto red in a retri eval system, ortransmitted, in any form or by any mean s, without th e prior permission in writing ofO xford Universit y Press, or as expressly permitted by law, by license, or under terms agreed with theappropriate reproduct ion righu organi zatio n. Inqu iries concerning reproduction ourside th e scope ofthe above sho uld besent [0 [he Rights De partment, Oxford University Press, at the address above,

You musr not circulate thi s work in any o ther formand you musr impose th is same condition on any acqui rer,

Library of Congress Catalogi ng-in- Pub licatio n Data

Newton, M ichael A., 1961- auth or.Prop ort ionality in inrernadonal law I Mic hael New to n, Larry May.

pages cmInclud es bibliographical references and ind ex.ISBN 978 -o-19-93SS0j-7 (( hard back): alk. paper}

I. Propor tion ality in law. I. May. Larry, author. Il . T ide.KL4-7·N 49 10 14HI.01- dC1.3

W l3039939

9 87 6 5 4 3 2. 1

Printed in the Uni ted State s ofAmerica on acid- free paper

No te to Read ersTh is publkation is des igned to provide accurate and authori ta tive info rmation in regard to the subject mattercovered. Ir is based upon sources believed to beaccurate and reliab le and is intended to becurrent as of th e timeit was written, It is sold with the under standing th at the pub lisher is not engaged in rendering legal, accounting,or o ther professional serv ices. Ifl egal advice or oth er expert assistance is required, the services ofa competentprofessiona l person sho uld besought. A lso, to confirm that [he in for mation has not been affected or changed byrecent developments, rradirional legal research techniques should beused, including checking primary sourc eswhere appropriate,

(Bas~d 011tbrD~d<rration ofPrinciplnjOintly adopUd bya Committn oftb~

Amm ean Bar AssociAtion and a Commi/tn ojPttblis),m alld Anodatiom.)

You mayorderthis or anyother Oxford UniversityPress publicationbyvlslUng the Oxford University Press webslte at www.oup.com.

TO thosewho serve in harm's way

with honor and commitment to humanity

•

Contents

1. Introduction I

I. A Preliminary Und ersranding o fJlls in Bello Proporrionaliry z

II. An Example ofFriendly Fire between the United States and Pakistan 6

Ill. Some Preliminary Direction s 10

2. What is Proportionality ?IS

1. W hat is Propo rtionality at its Most Basic ?16

II. Co mparability and Context 18

Il l. Proporti onality at the Internatio nal C riminal Court and Protocol I 2.1

IV.Some Additional Examples zsV. Prop orti o nality's Paradox: Fixed Standards Assessments Reached

Subject ively z8

] . Proportionality: A MlIltiplicity of Meanings 33

I. The Limits ofLawful Governance H

II. The Limi ts ofLawful State Puni shment +0Il l. The Regulation ofInvesto r- State Interests +6

IV. Maritime Delimitation 52

V. The Law o f C o unte rmeasures in Trade 55

VI. State-Imposed Restraints on H uman Rights S6

4. Proportionality in theJIISt ,*r Tradition 61

I.JIISad Bellum ProporrionaIity 6)

I1.Jlls in Bello Proporrionaliry 68

I1I.Jlls Post Bellum Proporrionality 7+

vii

I

viii Contents

IV. The ThreeJust War Proportiouali ry Prin ciples 78

V. Significance for Internatio nal Law SI

5· Proportionality in International H umanitarian Law 85

I. Framing the]us in Bello and ] us adBellum Legal Debates 86

11.The Origins o f]us in Bello Propor tionali ty 89

Il l. Propo rtionality and Profession alizatio n 94

IV. The Emergence of Proportionality in Treaty Law 10 0

V. The Lieber Co de and Addi tional Prorocol I 10 6

VI. The International C riminal Court Framin g of the C rime of

Dispropo rtionate Attacks Il 2

6. Proportionality in H uman R ights Law and M orality 1>,

L Hum anitarian Law and Hum an Righ ts Law 122

11.Worri es about Applying Human Righ ts Law to Armed Con/liet 129

Ill. JUStWar Theory and Human Righ ts IJJ

IV. L ex Specialis and Forfeiture s 1) 7

V. Necessity's Relation to Propo rtion ality 14 2

VI. The Crime of D isproportionate Attack 148

7. The Uniquen esso!Jus in Bello Proportionality 155

I. Sui tability, Necessity, and Proportionality 156

IL Commonali ties among Different Uses of Proportionality 158

A. The Pervasive Use of Negative Phraseology 158

B. Breadth ofPermissible Discretion 16 0

C. W hat Proportionality is Not 16)

Ill. What is the Positive Role of Proportionality? 165

A. The Articulation ofCardinal Values 16 5

B. The Preservation ofSpace for Second Opinion s Reevaluating

Discretionary Acts 167

C. The Establishment ofa Framework for Interrelation 169

IV. Why]us in Bello Proport ionality is Unique 171

A. The Context of Armed Conflict 17 2

B. The Attriburion of Acts ' 74

C. The Permissive Nature of the]us in Bello Regime ' 75

S. Countermeasuresand Counterinsurgency ISI

L Proportionate Countermeasures IS2-

11.Examp les ofDillicu lt Counterinsurgency Cases 189

Contents

9. Human Shields and Risk 101

I. Forced Choices 10)

11. Inrernarional Law and Human Shields 106

Ill. Voluntary Human Shields" I

IV. Involuntary Human Shields "5

V. Risk and Co ncern about C ivilians 219

VI. Adjusting the Rules ofWar so as Not to Favor Oppressors »2

10. Targeted Killings and Proportionality in Law: Two Models 229

L The D rone Strikes Controversy 231

U. Status and Conduct: Internatio nal Hu mani tarian Law and D omestic Law

Enforcement 236

Ill. The Controversy over Protocol I 2) 9

IV. Behavior and Domestic Law Enforce ment 24 3

V. Law Enforcement, Proportionality, and Du e Process 24 6

VI. War and the Self-Defensive Killing of Co mbatants 251

VII. Targeted Killing and Proportionality in the International C riminal

Co urt 255

11. The Nature of l11tr and the Idea ofCyberwar >61

L The H istorical D efinition s ofWar 262-

Il . The Rules of 'w.l1"and Cyberwar 26 5

Ill. Current]us ad Bellum and]us in Bello Propo rtionality and

Cyberspace >69

IV. A Paradigm Shift for Co nceptualizing Cybe r Attacks 274

V. The Problems of Assimilating Cybe r Attacks ro a War Paradigm 277

VI. Concluding Tho ughts on Proportionaliry and Cyberwar 280

12 . Thresholds o/Jus in Bello Proportionality 28)

I. Init ial Rules ofThumb for]us in Bello Proportionality 285

A. The Common Denominator Principle 2SS

B.The Civili an Precautiona ry Principle 286

C. The Unobserved Target Principle 286

D. The Respect for Fellow Humans Prlnciple 287

11. The Thresholds ofjm in Bello Proportionality 288

A. The Symmetric Statu s Threshold 289

B. The Imminence and Self-Defense Threshold 291

ix

x Coments

C. The Extreme Emergency Threshold ' 9 '

D. The Preemption or Ho stile Action Threshold ' 94

E. 11,e Contt olled Area Threshold '97

Il l. Conclusions '99

B IBL IO GRA P H Y } OS

IN DEX J'S

•

1

IN TROD UCTION

PROPORT IONALITY, ALO N G W IT H distinction , necessity. and humanity. make

up the chief pr inciples that have been thought to govern armed conAict for hun ­

dreds ofyears. Th ere has been a close relatio nship between the work ofphilosophers

writing in the Just War tradition and lawyers who work in international law. espe­

cially today in inrernarional crim inal law. Proportionality is debated in these two

dom ains but also. very importantly, in military academies and in boo t camps where

tho se who are assigned th e task of fighting armed conAicts are told that if they act

disproportion ately they will face legal p roceedings ali:erwards. Conduct later seen

to be disproportionate also raises a host of polit ical and operational complicatio ns

that conunanders know are best avoided if at all possible. It is our goal to provide a

comprehensive and also understand able analysis ofp rop ortiona lity that is useful for

those who often must make tragic cho ices during armed co nflict.

The authors of this book bring diverse expertise to the topic of propo rtio nality

in international law. The book seeks to meld abstract philosophical and legal analy­

sis withvery specific and highly emotive comemporary co mbat cases. The cases are

discussed largely from the perspect ive of tho se who must make deci sions. often in

the midst of armed conflict, We hope to bring to th e proportionality debate both

analytic rigor and also sensitivity to facts on the ground. We will succeed to the

extent that we impart mo re clarity to our readers about what proportionality has

meant and what it could mean goi ng forward as well as encouraging our readers to

apprec iate the very diflicu lt task of making proportionaliry assessments, often while

bullets whiz overhead.

This book seeks to ana lyze the modern usages of proportionality in order to

achieve a mo re complete understanding ofthe values that proportionality preserves.

"Proportionalit y is a doctrine that every serious student of milirary forceneeds to study and understand . Its dynamics and tensions are remarkablyconsistent even as the specific details are so varied. Newton and May capturedthose issues superbly. Their organized and well-reasoned analysis gives thisbook an impressive depth of application and insight. Their conclus ion thatproportionaliry during armed conflicrs is a unique usage highlights one ofthe enduring conundrums ofour era. This book fills the current void withintellectual consistency. Itconta ins an interdisciplinary discussion that willhelp practition ers apply the docrrine ofproportionality in a manner consistentwith rhe concerns ofmilitary commanders, and that also preserves lives."

JUSTICE RICHARD GOLDSTONE. former chiefprosecut or of theInternational C riminal Tribun als fo r the forme r Yugoslavia and Rwanda.Constitutional Court ofSourh Africa [rer'd)

"Proport ionality is a pervasive concept in modern law and philosophy. Thro ughtheir careful interd isciplinary approach, Newton and May dissect the myriadconcerns related to the modern practice ofproportionality, and providean invaluable analytical template for decision-makers. Th is book shou ld berequired reading for any military expert , international judge, constitu tionallawyer, hum an rights advocate, legislaror, theologian, or philosopher whowants to be fully informed on the most important debates ofour era."

MICHAEl P. SCHARF, Actin g Dean. CaseWestern Reserve Uni versity School ofLaw

"There are few topics in the law governing conflict more complicatedand elusive than proportionality. The auth ors have skillfully teased apartinternational law's variants ofproportionality in a manner that is bothaccessible and soph isticated. Of pa rticular note is their interdisciplinaryapproach and use of real-world examples. I recommend th is work ro scholarsand practitioners alike."

MICHAEL SCHMITT, Charles H . Srockton Professor and Chairman,International Law D epartment . United States N aval War College; Professor of

Publ ic Internatio nal Law. Exeter U niversity

OXFORDUNIVERSITY PRESS

www.oup.com

ISBN 978-0- 19-935503-7

. JJIUJL ill1~1