On a Dual Role for the ICC
FINAL VERSION
MASTER THESIS
Jop Floris 10772685 Public International Law 12 ECs Filing date: 26 June 2015 Supervisor: Jean d’AspremontContent
Introduction ... 3
Legal Framework and Research Design ... 4
1. International Humanitarian Law in International Criminal Law – The
Overlapping Part ... 6
1.1 What is International Humanitarian Law? – The Framework ... 6
1.2 What is International Criminal Law? – The Framework ... 7
Domestic Courts ... 7
International Criminal Court ... 8
International Criminal Tribunals (for the former Yugoslavia and Rwanda) ... 9
1.3 The Overlapping Part - Implementation and Contribution ... 10
1.3.1 Unimaginable Atrocities and the Place of the Principle of Proportionality ... 10
1.3.2 Implementation and Contribution ... 11
Contributions of the ICC ... 11
Contributions of the Tribunals... 12
2. Differing Perspectives on the Principle of Proportionality – The Vagueness of
Norms ... 14
2.1 One Notion, Two Perspectives ... 15
2.2 Principle of Distinction versus Proportionality: Two Different Principles Looking Alike ... 16
2.3 Proportionality under International Humanitarian Law - Collateral Damage ... 19
2.3.1 Anticipated Concrete and Direct Military Advantage - The (Difficulty of) Application ... 22
2.3.2 Status of the Principle – Customary Nature ... 23
2.4 Proportionality under International Criminal Law ... 24
3. Consequences of Diverging Perspectives ... 27
3.1 IHL versus ICL in General – Adjudications on the Interpretation of Law ... 27
3.2 Two Norms of Proportionality: The Adjective ‘clearly’ ... 28
200 Meter Rule ... 30
Bigger Picture versus Separate Incidents ... 30
Mens Rea... 31
Too Vague a Norm? ... 32
3.3 Amongst Courts... 32
4. A Role for the International Criminal Court ... 34
4.1 Who’s to Fix the Consequences? ... 34
4.2 Likeliness of the ICC Being Seized by the Principle ... 34
4.3 A Dual Role for the ICC ... 35
Interpreter ... 36
Policy of Proactive Complementarity ... 36
Introduction
Attacks in times of an armed conflict usually take place in the midst of society. Innocent civilians suffer in many ways from conflicts, but to guarantee them a minimum level of protection the international community is of the opinion that their suffering should be mitigated as much as possible. However, incidental collateral damage may nevertheless occur. For example, Osama Bin Laden surrounded himself with people whose participation in the armed conflict is highly contested, but does that mean that the raid on his compound could not have been carried out? According to international humanitarian law that question should be answered in the negative because a certain degree of collateral damage is allowed for. The members of SEAL Team Six are considered heroes, but how would that have been any different if the USA decided to carry out the raid with Hellfire missiles from unmanned aerial vehicles (drones), swiping the three surrounding blocks of the map as well? Or another example: should all the guests at a wedding be celebrating their last party if the groom is a high-ranking military commander? Even if the wedding would be put to an end by total devastation, the result of the legal test from a normative point of view would not automatically render the attack illegitimate since the proportionality test is concerned with excessive and not with extensive collateral damage.1
There are two legal frameworks applicable in these situations. First there is International Humanitarian Law (IHL) or the ‘laws of war’, prohibiting certain conduct and aiming to protect designated groups. Then there is International Criminal Law (ICL), which is focused on the prosecution of those who conduct certain hostilities, including a number of serious violations of IHL. Although the two are different branches of law and thus have their own perspective on certain principles, they sometimes overlap and on occasion, might even clash.
Notwithstanding the differences in various branches of law, the principle of proportionality is of such cardinal importance that it applies, at least in some form or extent, in almost every part of every branch, whereby its interpretations vary as often as its emergences. Some even name the principle the “ultimate rule of law”2, because of its ability to empower
judges to review discretionary powers.3 These differences do not always have to be a problem,
since criminal law can have a different interpretation of proportionality than civil law without interfering with each other. However, the varying interpretations and applications might surface some problems when two separate branches dealing with the same subject touch upon
1 Michael N. Schmitt, ‘Fault Lines in the Law of Attack’, in: Susan C. Breau and Agnieszak Jachec-Neale (eds.),
Testing the Boundaries of International Humanitarian Law, p. 294.
2 David M. Beatty, The Ultimate Rule of Law (Oxford University Press, 2004).
3 Deborah Russo, ‘The Use of Proportionality in the Recent Case-Law of the ICJ’, University of Oslo Faculty of
Law Legal Studies Research Paper Series, no. 2015-15, p.4.
each other. Such is the case when it concerns the principle of proportionality during a situation on the battlefield versus the retrospective adjudication of that application in a courtroom. In more concrete words; was the collateral damage in the raid against Bin Laden and the devastation at the wedding proportionate under IHL? And consequently, how would a court rule on the legality of those attacks if it were to review the actions today?
The outcomes of the diverging perspectives might create a form of friction, or perhaps even a clash between them. That (potential) problematic situation was already foreseen in the drafting of the Rome Statute, where states expressed their fear that the balance and proportionality between anticipated military advantage and the anticipated collateral damage would be applied too strictly by the court.4 There seems to be no uniform test for
proportionality, nor are there objective standards of valuating highly subjective norms as ‘military necessity’. No matter how hard we try to standardize the norms, the circumstances of each case and the subjectivity of each person trumps every objective standard.
Given the potential different outcomes of a proportionality test due to the different perspectives applied and the corresponding diverging consequences, certain questions are raised. Would it be possible for an attack to be deemed proportionate under IHL by the executer on the ground, while in retrospect a court or tribunal might find it a disproportionate attack under ICL? Or the other way around? And to what extent are the differences justified by the debate on proportionality as a single or double notion? These questions become even more pressing because collateral damage under IHL usually comes in the form of loss of innocent lives. And if it is to be concluded that the divergences bring about a clash of legal perspectives, one should ask the question how these situations can be fixed and the perspectives reconciled.
In order to answer those question one has to deal with the positions of both IHL and ICL on the principle of proportionality and the role of the world’s judicial authorities. It raises the following problem statement:
How is proportionality of an attack dealt with in International Humanitarian Law and International Criminal Law courts and tribunals? And what (potential) consequences do the differences bring about? Can the ICC play a role in the harmonization of perspectives?
Legal Framework and Research Design
The legal framework of IHL consists mainly of the Hague and Geneva Conventions and the additional protocols to them. Not all states are parties to all conventions, but as will be explained later on, the principle concerned here is of a customary nature and therefore
4 Otto Triffterer, ‘Commentary on the Rome Statute of the ICC’ (2008) p. 339.
transcends the requirement of being a state party to the codifying document. The framework of ICL is more diversified. Primarily, there are the sovereign states’ courts that are occupied with the prosecution; then there are the temporary tribunals such as the ICTY; and lastly there is the permanent International Criminal Court. All are concerned with ICL and have their own interpretation and statutory codification of norms.
In order to find answers to the problem statement, the first sub-question that should be answered is how IHL finds its place in ICL and how the different branches of law are intertwined. It is important to understand how both bodies of law relate to each other in order to grasp an understanding of the following sub-questions. This question refers to the first chapter.
Up next, in chapter 2, are the various perspectives on the principle of proportionality, both under IHL and ICL. To find an answer to the problem statement, it is important to understand the difference between a legal notion and a perspective. The second sub-question will thus be: what are the various perspectives of IHL and ICL on the principle of proportionality? Evaluating the relevant law, battlefield situations and court’s adjudications should provide an understanding of the different perceptions of proportionality. The various elements and circumstances of proportionality will be considered.
Thirdly, the consequences of the diverging perspectives will be discussed in chapter 3. Not only the practical consequences, but to a certain extent also some theoretical consequences in order to submit a normative view on (hypothetical) future scenario’s. Again the battlefield situations and adjudications will provide useful sources in answering the third sub-question:
what are the consequences of the diverging perspectives? This sub-question will contribute to the
problem statement by pushing the evaluative part of the thesis in a more normative framework. The last part of the problem statement on the role of the International Criminal Court in the clash of perspectives, is added because this author believes it is more useful to propose a solution than merely mentioning problems. The fourth chapter is devoted to this quest for a more contributing role for the International Criminal Court.
1. International Humanitarian Law in International Criminal Law –
The Overlapping Part
1.1 What is International Humanitarian Law? – The Framework
International Humanitarian Law (IHL) is the body of laws commonly referred to as the laws of war. Consisting of sets of rules, predominantly the Hague and Geneva conventions and additional protocols, its function is primarily to regulate the conduct of the belligerent parties in an armed conflict with the objective of mitigating as much as possible the inherent suffering that results from it.5 Or as the International Committee of the Red Cross defines it:
“The expression international humanitarian law applicable in armed conflict means international rules, established by treaties or custom, which are specifically intended to solve humanitarian problems directly arising from international or non-international armed conflicts and which, for humanitarian reasons, limit the right of Parties to a conflict to use the methods and means of warfare of their choice or protect persons and property that are, or may be, affected by conflict. The expression (..) is often abbreviated to international humanitarian law or humanitarian law.”6
The threshold for IHL to enter the playing field is the existence of an armed conflict. IHL applies to international and to some extent to non-international, or internal, armed conflicts. Although the applicable treaties and articles differentiate according to the nature of the conflict, due to reasons of space it suffices here to merely acknowledge the discussion about that distinction in the nature of conflicts. Especially since the role of the characterization of a conflict as (non-)international is declining in the current trend.7 Instead, the fundamental principle(s) of
humanitarian law are in the gun sight of this thesis. Predominant amongst those principles are the rules of distinction, precaution and proportionality;8 of which the latter will be the main
subject matter here.
5 See: Mary Ellen O’Connell, ‘Definition of the Term ‘Humanitarian Law’, in: D. Fleck (ed.), The Handbook of
International Humanitarian Law (2014); International Committee of the Red Cross, section ‘War & Law’, via:
https://www.icrc.org/en/war-and-law.
6 William J. Fenrick, ‘International Humanitarian Law and Criminal Trials’, in: Transnational Law &
Contemporary Problems (1997), Vol. 7:23, p. 25.
7 Fausto Pocar, ‘The criminalization of the violations of international humanitarian law from Nuremberg to the
Rome Statute’ in: F. Pocar, M. Pedrazzi and M. Frulli (eds.), War Crimes and the Conduct of Hostilities:
Challenges to Adjudication and Investigation, p. 17.
8 Ben Clarke, ‘Proportionality in Armed Conflicts: A Principle in Need of Clarification?’, in: International
Humanitarian Legal Studies 3 (2012), p. 74.
1.2 What is International Criminal Law? – The Framework
International Criminal Law (ICL) is primarily concerned with the determination of individual criminal responsibility. As a byproduct the trials dealing with such cases contribute to the development of IHL.9 In other words it should be designed so as to “contribute, through a
transparently fair and effective prosecution process, to a just reckoning of individual criminal responsibility for the criminal acts committed as well as promote the rule of law.”10 Two
concepts of ICL coexist and are best explained by their French references. On the one hand there is the droit international pénal, which refers to the rather ‘ordinary’ crimes and the body of norms that govern the relationships between states in their suppression. Whereas the droit
pénal international transcends that bi- or multilateral nature and is rather focussed on crimes
that are of concern to the international community as a whole.11 This thesis is concerned with
the latter category.
ICL finds its way to practice in various forms: through the national courts, the permanent International Criminal Court and the temporary tribunals such as the ICTY and ICTR. The main difference between those courts lies in the bases of their jurisdictions. In order to fully comprehend the way ICL deals with IHL, attention will be devoted to the aforementioned forums of ICL application.
Domestic Courts
Domestic legal systems have to incorporate ICL in their legislation. As the Geneva Conventions dictate, the grave breaches of the Conventions must be incorporated lock, stock and barrel in the national criminal legislation. States parties are even obliged “to establish and exercise universal jurisdiction on the basis of the aut dedere, aut judicare-principle.”12 National courts
have the most solid basis for jurisdiction since the state sovereignty after the Westphalian Peace and are the primary courts to deal with international criminal law. The geopolitical relations and technological development contribute to the incentive for domestic prosecution, because a lack thereof would embarrass the state on the international plane. In the Netherlands, for example, there is a trend of increased prosecutorial attention to international crimes.13
9 Supra note 6 (Fenrick), p. 24.
10 Lyal S. Sunga, The Emerging System of International Criminal Law, Developments in Codification and
Implementation (1997), 51 cited in Major Michael L. Smidt, 'The International Criminal Court: An Effective Means of Deterrence?' (2001) 167 Military Law Review, p. 324.
11 Wiliam Schabas, ‘Unimaginable Atrocities: Identifying International Crimes’, in: Unimaginable Atrocities:
Justice, Politics and Rights at the War Crimes Tribunals, Oxford University Press (2012), p. 27.
12 Harmen van der Wilt, ‘Equal Standards? On the Dialectics between National Jurisdictions and the
International Criminal Court’, in: International Criminal Law Review 8 (2008) p. 240.
13 Guénaël Mettraux, ‘Dutch Courts’ Universal Jurisdiction over Violations of Common Article 3 qua War
Crimes’, in: Journal of International Criminal Justice 4 (2006), p. 362-363.
Notwithstanding the good intentions of the Dutch, it would be farfetched to assume that other states would follow suit. At this point it is sufficient to acknowledge the fact that domestic applications vary almost as often as there are sovereign states.
International Criminal Court
The ICC is the only permanent international court dealing with individual criminal responsibility. The Rome Statute entered into force on 1 July 2002 after ratification by 60 countries.14 Important to note is that the ICC functions as a complementary court to the
abovementioned category of national courts. The ICC “may only proceed if the national justice system is unwilling or unable to investigate or prosecute”15 and thus serves as a back-up,
though not an appeal court. The treaty based, or ‘consensual court’ in The Hague only deals with the most heinous crimes. But before it does, according to its statutory provisions, it first has to establish its jurisdiction, determine the mechanism that triggers its proceedings and overcome the issues of (in)admissibility.
Jurisdictional provisions are based on the subject or the nature of the crime, territoriality and the temporal jurisdiction.16 The more concrete question of how a case gets
before the court is answered by the triggering mechanisms that provide for three options of bringing cases: either by a State Party, on initiative of the Prosecutor or due to a Chapter VII Resolution of the Security Council.17 In the last step, the question of admissibility, the court has
a certain degree of discretion according to which it can determine a case inadmissible if it is not of sufficient gravity.18 This is a highly relevant provision because it allows the ‘back-up’ court to
discard a case even if the primary domestic court is unable or unwilling to prosecute.
It is nothing new that the ICC was expected to encounter some major difficulties. Van der Wilt stated that “[i]t may just be that we are on the brink of entering a new stage in the administration of international criminal justice, in which the ICC will not (only) be confronted with blunt refusals or sheer impotence, but will rather be called upon to decide far more subtle legal issues. After all, some new national legislation and recent court decisions show slightly deviant opinions and standards in respect of definitions of crimes and concepts of criminal responsibility.”19
14 ICC Website, ‘About the Court’. 15 Supra note 11 (Schabas), p. 43.
16 Respectively: Articles 8, 12 and 11 Rome Statute. 17 Articles 13-16 Rome Statute.
18 Article 17 (1) (d) Rome Statute. 19 Supra note 13 (Mettraux), p. 231.
International Criminal Tribunals (for the former Yugoslavia and Rwanda)
The tribunals deserve special attention because they are not treaty based like the ICC, nor is their existence devoted to direct national legislation. Their intent was to go beyond national sovereignty in a time where no international criminal court existed. The institution of the tribunals is the result of the consensus of the international community that impunity is unacceptable.20 The ICTY was the first court since the Nuremburg and Tokyo tribunals
concerned with war crimes and was established under Chapter VII by the UN Security Council.21
The ICTR has an equivalent legal basis.22 Their legal bases make them unique in the
international legal order, because their jurisdiction derives from the attribution of powers by the Security Council, instead of state sovereignty. On the other side of the medallion, that same unique element makes the tribunals criticized for not being wholly independent from political influences of powerful states, especially those in the Security Council.23 The various forms of
jurisdiction will be dealt with in more detail.
The ratione personae and temporis of the tribunals are derived from the statutes’ similar first articles. Stating for the ICTY that:
The International Tribunal shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 in accordance with the provisions of the present Statute.24
The jurisdiction ratione materiae, depending on the nature of the crime, is given to the tribunals in the following articles of their Statutes. In order to overcome the difficulties of whether or not a state is party to a certain convention and consequently whether it is bound or not, the ratione
materiae for the ICTY was based on customary rules of IHL. The Secretary-General of the UN
stated in his report:
“in the view of the Secretary-General, the application of the principle nullum crimen sine
lege requires that the international tribunal should apply rules of international
humanitarian law which are beyond any doubt part of customary law so that the problem of adherence of some but not all States to specific conventions does not arise.”25
20 Supra note 14 (ICC Website).
21 ICTY site, ‘About the ICTY’; UN Security Council Resolution 827, 25 May 1993. 22 UNSC Resolution 955, 8 November 1994.
23 Supra note 10 (Sunga), p. 299. 24 Article 1 Statute of the ICTY.
25 Report of the Secretary-General pursuant to Paragraph 2 of UNSC Resolution 808 (1993), S/25704, § 33.
Having set out the forums and thresholds of both IHL and ICL as separate branches of law, the intertwinement of them already becomes apparent. It is now time to turn to the overlapping part and determine the implementation of and contribution to humanitarian law by ICL.
1.3 The Overlapping Part - Implementation and Contribution
261.3.1 Unimaginable Atrocities and the Place of the Principle of Proportionality
The category of droit pénal international can be subdivided in various atrocities. The Rome Statute declares in the preamble:
Mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity.27
By choosing for the words ‘unimaginable atrocities’, the Statute refers to more than just war crimes. War crimes constitute only one of the four categories of crimes that are subject to international prosecution by the ICC, the other three being: genocide, crimes against humanity and the crime of aggression. The difference lies in the fact that those crimes are usually not committed under IHL; strictly speaking they are not jus in bello. Genocide and crimes against humanity occur during time of peace, whereas the crime of aggression is jus ad bellum because it governs the origin of a war.28 As explained in the first part of this chapter, IHL only applies in
situations of armed conflict. Generally the crimes committed under the laws of war are referred to as ‘war crimes’. Then what exactly are those war crimes that might trigger international prosecution?
Not all violations of international humanitarian rules constitute war crimes. Nor does IHL intent to be some form of the international equivalent of a comprehensive national criminal code.29 To narrow down the category, only serious violations of IHL qualify as such.
“Consequently States are only internationally required to prosecute and impose criminal sanctions on perpetrators for these serious violations, without prejudice to a more extended criminalization of violations of the law of armed conflict under national legislation.”30
ICL is accessorial to IHL and the first has to be interpreted in line with the latter.31 The
principle of proportionality as it is incorporated in Additional Protocol I thus presupposes the existence of an armed conflict and the application of international humanitarian law. A violation
26 Robert Kolb, ‘International Humanitarian Law and Its Implementation by the Court’, in: The Legal Regime of
the International Criminal Court, p. 1015.
27 Preamble to the Rome Statute. 28 Supra note 11 (Schabas), p. 25. 29 Supra note 6 (Fenrick), p. 26. 30 Supra note 7 (Pocar), p.3.
31 Rogier Bartels, ‘Dealing with the Principle of Proportionality in Armed Conflict in Retrospect: The Application
of the Principle in International Criminal Trials’, in: Israel Law Review, Vol. 46, Issue 02 (2013), p. 278.
of that cardinal principle constitutes a war crime for which prosecution is of the utmost importance.
1.3.2 Implementation and Contribution
The importance of judicial authorities dealing with rules relating to armed conflicts is perfectly described by Cassese: “The more frequently courts of law pronounce upon the permissibility and impermissibility of military actions, the more extensive and forceful are preventive restraints on military behaviour; hence the greater the effective protection of the basic values that international humanitarian law aims at safeguarding.”32 This quote captures the essence of
a retrospective adjudication by a court when it comes to the development of rules of law and the conduct of those who are bound by it. For the evolution of the law it is quintessential that the provisions are actually applied in courtrooms and elaborated upon. The importance of judicial review thus goes further than individual cases serving at that moment and is elementary for the future existence of a proper legal system.
Some attention should be devoted to the (lack of) application of IHL by national courts in general. For the rules of humanitarian law to be applicable before domestic courts, the rules must have direct effect. The majorities of rules of IHL, however, do not create individual obligations and are therefore not directly applicable before national courts, unless of course, those rules are transposed to national law. The principle of proportionality is codified in the International Crimes Act in the Netherlands, but the transposition of rules leaves some leeway for the national legal systems to do so according to their own standards. The domestic application is left aside from now on, because it does not fit due to reasons of space and because the eventual goal of this thesis is to explore the possibilities for harmonizing the legal standards. Rather we should look for guidance to the ICC and the two tribunals because of their international nature. Although they have made some important contributions to the evolvement of humanitarian law, their influence is to some extent limited by their age. The ICC is relatively young; it entered into force in 2002, while the two tribunals are intentionally ending soon.
Contributions of the ICC
The main contribution of the International Criminal Court is the definition of the category of war crimes. The second paragraph of Article 8 of the Rome Statute defines ‘war crimes’ very extensively in five subparagraphs, consisting of a combined fifty provisions. The Rome Statute thus specifies the serious violations of IHL that constitute war crimes in concrete provisions, based on a negative definition.33 Although they are derived from the law of armed conflict and 32 Antonio Cassese, ‘On some merits of the Israeli judgment on targeted killings’, Journal of International
Criminal Justice, Vol. 5, No. 2 (2007), p. 341.
33 Supra note 26 (Kolb), p. 1016.
one might argue that they are of a secondary nature, Article 8 of the Rome Statute is a proper – and the most elaborate - attempt to actually list such crimes.34
However elaborate, a list of war crimes will never be truly exhaustive. This has two reasons. Firstly there is a static obstacle, being the inability of the Conference in Rome to reach perfection. Secondly, from a de lege ferenda perspective, the list is not as dynamic as the evolution of warfare. As the means and methods of warfare change - think of cyber warfare to mention one example - the corresponding laws of armed conflict should change concurrently, which in its turn must bring about changes in the list of war crimes. Such (often rapid) evolution cannot be foreseen at the moment of drafting and consequently the list always remains incomplete.35 Alas, the only exhaustiveness that follows from the list is the limited instances of
jurisdiction of the court.
Contributions of the Tribunals
As for the tribunals, they have made almost revolutionary contributions to international humanitarian law.36 Their jurisprudence reaffirmed and strengthened the laws of armed
conflict.37 The ICTY alone has, up to 16 April 2015, indicted 161 persons for serious violations of
humanitarian law.38 Add another 93 from the ICTR39 and one cannot arrive at another
conclusion that, regardless of the outcomes, the mere occupation with such a vast number of cases shows the tribunals’ preoccupation with developing IHL. Compared to the 22 cases before the ICC40 and the often extensive judgments of the tribunals, their contribution is extraordinary.
In conclusion the contribution of international criminal law to international humanitarian law has been profound, especially in highly contested fields. Numerous other contributions are not mentioned here due to reasons of space, but they all contribute to the ‘humanization’ of IHL. That aspect of humanization, or the shift of the point of gravity of IHL “from State-centered distribution of power among belligerents to a human-being centered extension of protections”41
is a paramount aspect of the jurisprudence and should not be left unmentioned.
34 Supra note 26 (Kolb). 35 Ibid. (Kolb) p. 1017.
36 See for example: Larissa J. van den Herik, ‘The Contribution of the Rwanda Tribunal to the Development of
International Law’ (2005).
37 Supra note 26 (Kolb), p. 1015.
38 Website ICTY, ‘Key Figures’, http://www.icty.org/sections/TheCases/KeyFiguresoftheCases, last retrieved 26
June 2015.
39 Website ICTR, ‘About the ICTR’, http://www.unictr.org/en/tribunal, last retrieved 26 June 2015. 40 Website ICC, ‘Situations and Cases’,
http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/Pages/situations%20and%20cases.aspx, last retrieved 26 June 2015.
41 Ibidem (Kolb), p. 1037.
To recap, the principle of proportionality plays an important role in IHL. The three different stages that are engaged with ICL have implemented the principle, but it cannot be denied that they all face problems in finding an authoritative interpretation. To find answers to the problem statement we should look for a judicial authority that can both interpret the laws of war and effectuate the use of those interpretations. A dual role that, as will be argued later on, fits the ICC best if it is able and willing to change its course.
The contributions as set out in this chapter may already raise issues and questions about the consequences of the interplay between the two legal branches. Those subjects will be dealt with in the third chapter. Having described the framework in which the principle of proportionality plays a role, it is now time to turn to the principle itself and both describe and analyze the perspectives in the overlapping part of the various legal regimes that form the framework.
2. Differing Perspectives on the Principle of Proportionality – The
Vagueness of Norms
Humanitarian law and its principles evolved from – originally – guiding states in their conduct of hostilities and prescribing the rules for the determination of state responsibility, in which proportionality is a cardinal principle, to IHL functioning as a legal branch to build a framework for individual criminal responsibility. Consequently, the prohibition on causing disproportionate injury has also developed into a principle guiding ICL. The principle is now the common denominator in the use of two different perspectives; on the one hand it is used to guide military operations, while on the other hand it is used to ascertain individual criminal liability. The vagueness of terminology such as ‘military advantage’ and ‘anticipated losses’, together with their subjectivity may very well be explained in its former battlefield function42,
but are hardly recognizable when it comes to courtroom situations.
Contrary to what Schmitt perceives as a wrongful characterization of the principle43, this
author would argue that the principle of proportionality, both in ICL and IHL, is best explained by picturing an attack as a balancing scale. On one side of the scale lies the collateral damage, weighing against the military necessity on the other. If the collateral damage outweighs the military necessity, i.e. it is disproportionate, the scale tips out of balance and the attack becomes unlawful. The foundation of the terminology of a balancing scale can be found in the commentary of the ICRC, which states that “[t]he entire law of armed conflict is, of course, the result of an equitable balance between the necessities of war and humanitarian requirements.”44
In this chapter the two different perspectives on the principle of proportionality will be examined further. Starting off with explaining why we ought to speak of one notion of proportionality with (in this case) two perspectives on it. Then placing the principle of proportionality in relation to the principle of distinction, since the two often look alike. An evaluation of the principle under international humanitarian law follows, paying attention to its customary status and the application in practice. Finally the perspective on the principle as it emerges in international criminal law will be dealt with.
42 Carolin Wuerzner, ‘Mission Impossible? Bringing charges for the crime of attacking civilians or civilian objects
before the international criminal tribunals’ in: International Review of the Red Cross, Vol. 90, No. 872 (2008), p. 929.
43 Supra note 1 (Schmitt), p. 293. 44 Commentary ICRC, para. 2206.
2.1 One Notion, Two Perspectives
A potential hurdle in the discussion that has to be overcome is the debate about whether to perceive proportionality in both branches as two different legal notions, or as the same notion with mere different perspectives on it. A similar discussion evolved around the ‘crime of aggression’45 and the notion of ‘effective control’. Another context in which the relevance of the
question was asked, was in the case of asymmetric warfare.46
The first indication of this author’s point of view that the principle of proportionality is a single notion with different perspectives on it can be found in the fact that the (then) Prosecutor of the ICC, Ocampo, referred to the principle in both branches in one sentence and on the same footing:
“Under international humanitarian law and the Rome Statute, the death of civilians during an armed conflict, no matter how grave and regrettable, does not in itself constitute a war crime. International humanitarian law and the Rome Statute permit belligerents to carry out proportionate attacks against military objectives, even when it is known that some civilian deaths or injuries will occur. A crime occurs if there is an intentional attack directed against civilians (principle of distinction) (..) or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality) (..).”47
In this quote Ocampo recognizes the existence of the principle of proportionality in both branches of law, but does not distinguish between different notions of it. Nor does he mention the different threshold in the perspectives for that matter, which is an even stronger indication that proportionality should be perceived as one notion, to which diverging perspectives are possible.
A second indication is that, as will be shown later on in this chapter, the formula of the proportionality test is more or less the same in both branches of law. The most important difference occurs in the threshold, exemplified by the adjective ‘clearly’ in ICL, not in the
45 See for example: Mohammed M. Gomaa, ‘The Definition of the Crime of Aggression and the ICC Jurisdiction
over that Crime’, in: Mauro Politi and Guiseppe Nesi (eds.), The International Criminal Court and the Crime of
Aggression, p. 74-6; Noah Weisbord, ‘Conceptualizing Aggression’, in: 20 Duke Journal of Comparative & International Law (2009); Carrie McDougall, ‘When Law and Reality Clash – The Imperative of Compromise in
the Context of the Accumulated Evil of the Whole: Conditions for the Exercise of the International Criminal Court’s Jurisdiction over the Crime of Aggression’, in: International Criminal Law Review 7 (2007).
46 Geert-Jan Alexander Knoops, ‘The Duality of the Proportionality Principle within Asymmetric Warfare and
Ensuing Superior Criminal Responsibilities’, in: International Criminal Law Review 9 (2009).
47 Luis Moreno Ocampo, Letter concerning the situation in Iraq, 9 February 2006. Website of the ICC,
www.icc-cpi.int, retrieved on 22 June 2015.
constituent elements of the provisions. The differences between the perspectives thus lie in the misbalance of the balancing scale and not in the elements that are put on it.
Moreover we can assume to be speaking of the same notion, because proportionality as such is not mentioned explicitly in IHL or in ICL, rather certain provisions are interpreted as containing the notion of proportionality according to their wording. In a way proportionality is thus understood as a notion that applies when balancing certain factors, which is to a certain extent, as mentioned above, the underlying idea of the laws of war. The fact that, depending on the applied perspective, the outcome may vary does not derogate from the idea that the notion of proportionality stays one and the same.
A last argument in favor of the proposition is the compromise between delegations in Rome that resulted in the drafting of Article 8.48 Staying close to the wording of the principle in
IHL, but adding a nuance in the threshold, it can be reiterated that the delegations abided by the already existing notion and merely felt the need to come up with a different perspective when it concerns ICL.
Clarifying this debate is important because if it were to be that both branches apply their own (different) notions of the principle, there would be no need to research the diverging application, since the differences would be justified on the basis of being engaged with different notions all together.
2.2 Principle of Distinction versus Proportionality: Two Different Principles
Looking Alike
The principle of distinction, i.e. distinguishing between combatants and civilians or in other words, between military objectives and civilian objects is a cardinal principle of humanitarian law.49 A violation thereof does, however, constitute a violation of different elements than a
violation of the principle of proportionality. The assessment of both principles is often made on the same facts, but the mens rea element makes a difference.50 In a way, the principle of
proportionality derives from the principle of distinction.51
The case law of the ICTY has given us guidance in the often-delicate differences between the two principles. In Galic the Trial Chamber drew upon provisions of AP I and provided us
48 Supra note 4 (Triffterer).
49 International Court of Justice, Advisory Opinion on the Legality of Threat or Use of Nuclear Weapons, (8 July
1996), para. 78.
50 Franscesco Moneta, ‘Direct attacks on civilians and indiscriminate attacks as war crimes’, in: F. Pocar, M.
Pedrazzi and M. Frulli (eds.), War Crimes and the Conduct of Hostilities: Challenges to Adjudication and
Investigation, p. 66; Galic Trial Judgment (5 December 2003), para. 59.
51 Supra note 1 (Schmitt), p. 292.
with a thorough definition of the constitutive elements of actus reus and mens rea.52 The actus
reus constitutes, referring to the same tribunal’s Blaskic case, that “the attack must have caused
deaths and/or serious bodily injury within the civilian population or damage to civilian property. (..) Targeting civilians or civilian property is an offence when not justified by military necessity.”53 On the element of mens rea the tribunal found that “such an attack must have been
conducted intentionally in the knowledge, or when it was impossible not to know, that civilians or civilian property were being targeted not through military necessity.”54
In criminalizing the conduct of the indifferent or accepting perpetrator through the mens
rea element, the ICTY has put flesh to the bones of the principle of proportionality. From the
perspective of ICL in determining whether an attack was disproportionate and individual criminal responsibility should be invoked “it is necessary to examine whether a reasonably well-informed person in the circumstances of the actual perpetrator, making reasonable use of the information available to him or her, could have expected excessive civilian casualties to result from the attack.”55
The subjectivity that comes along in the post facto assessment of ex ante knowledge is the heart of this thesis. Two different ways are discussed by Moneta to overcome the risks of subjectivity. “First the mens rea can be evinced from objective circumstances including, inter alia, the means and methods used in the course of the attack.” Second, the ‘reasonable person’ standard forms a safeguard since the “Prosecution must demonstrate that, given the circumstances, a reasonable person (legal fiction) could not have believed that the individual attacked was a combatant.”56 Indeed this would contribute to overcoming the risk of
subjectivity in individual cases, but it does not provide us with an objective framework that is capable of transcending the casuistry of individual cases.
Although the principle of distinction and the principle of proportionality may in certain situations look alike, there are some essential differences. Those differences are best explained when the principles are seen in close connection with each other.57 For the former – distinction
– to apply, one has to exclude the possibility that the civilians or civilian object under consideration can be deemed collateral damage justified by military necessity.58 The principle of
distinction has to be adhered to before proportionality can come into play.59 That means one
first has to determine whether the target is a legitimate one. If the answer is affirmative, only
52 Supra note 50 (Moneta), p. 65.
53 Galic Trial Judment (5 December 2003) para. 42; Blaskic Trial Judgment (3 March 2000), para. 180. 54 Ibidem.
55 Ibid. Galic, para. 58.
56 Supra note 50 (Moneta), p. 66. 57 Supra note 31 (Bartels), p. 274. 58 Supra note 42 (Wuerzner), p. 919. 59 Supra note 31 (Bartels), p. 274.
then can one assess the possibilities of collateral damage. This was the case, for example, in the Advisory Opinion of the ICJ on the legality of the threat or use of nuclear weapons. The court held that the use of indiscriminate weapons could be equated with a deliberate attack on civilians.60 That conclusion already bars asking the question whether any disproportionate
harm was done. Something similar was concluded by the ICTY in the Martic case, where it held that “in particular, indiscriminate attacks, that is attacks which affect civilians or civilian objects and military objects without distinction, may also be qualified as direct attacks on civilians. In this regard, a direct attack against civilians can be inferred from the indiscriminate character of the weapon used.”61 If the principle of distinction is thus not adhered to in an attack, the
civilians and civilian objects that are hurt by the attack are deemed the actual and unlawful objects of the attack instead of possible collateral damage.
This (often thin line of) reasoning is exactly what separates the principles. If a situation occurs in which both military objectives and civilian casualties have to be evaluated, one should first determine to what objectives the attack was aimed. After deliberation of the method and means of warfare and the conclusion that an attack was not indiscriminate by its very nature, the principle of proportionality comes into play. The ICRC also emphasizes this theory:
In order to comply with the conditions, the attack must be directed against a military objective with means which are not disproportionate in relation to the objective, but are suited to destroying only that objective, and the effects of the attacks must be limited in the way required by the Protocol.62
This commentary of the ICRC encompasses the two principles: first the attack must be directed at a military objective with appropriate means and second the effects must be limited in regard of the proportionality. Only if an attack is carried out in conformity with the first part on distinction, then the second part on proportionality is raised. In that way the principle of proportionality starts where distinction ends.63
This difference is acknowledged by both the ICC and the ICTY. In the Katanga decision on the confirmation of charges, the ICC held:
As regards the subjective elements, in addition to the standard mens rea requirement provided in article 30 of the Statute, the perpetrator must intend to make individual civilians not taking direct part in the hostilities or the civilian population the object of
60 Supra note 42 (Wuerzner), p. 920; supra note 34 (ICJ Nuclear Weapons), para. 78.
61 ICTY, The Prosecuter v. Milan Martic, IT-95-11-T, Trial Chamber I, Judgment of 12 June 2007, para. 69. 62 1979 Commentary ICRC to art 51.
63 Supra note 26 (Bartles), p. 274; supra note 37 (ICTY Galic Trial Judgment), para. 58.
the attack. This offence therefore, first and foremost, encompasses dolus directus of the first degree.64
Both violations of the principles constitute a war crime, but the war crime of violating the principle of distinction thus requires a higher or additional norm of mens rea compared to the war crime of a disproportionate attack. Then the court goes on and considers the same war crime to be constituted when a village with both defending forces and a civilian population is attacked with the intention to destroy the village.65 To ensure a proper distinction with the
principle of proportionality the court adds:
This [..] case must be distinguished from the other situations in which an attack is launched with the specific aim of targeting only a military objective, albeit with the awareness that incidental loss of life or injury to civilians will or may result from such an attack.66
Apparently the court found it necessary to reiterate the difference between the two principles. The Trial Chamber of the ICTY in Kupreskic emphasized that both principles must be applied in conjunction.
This principle, [..] has always been applied in conjunction with the principle of proportionality, whereby any incidental (and unintentional) damage to civilians must not be out of proportion to the direct military advantage gained by the military attack. In addition, attacks, even when they are directed against legitimate military targets, are unlawful if conducted using indiscriminate means or methods of warfare, or in such a way as to cause indiscriminate damage to civilians.67
2.3 Proportionality under International Humanitarian Law - Collateral
Damage
Proportionality is a very broad term and applicable in an almost infinite number of legal considerations, however under the realm of IHL is inherently preoccupied with the manifestation of collateral damage. Referring back to the balancing scale, on the one side of the scale weighs the collateral damage, which has to be proportionate. However, the word ‘proportionality’, or anything alike for that matter, does not literally appear in the provisions of
64 ICC Pre-Trial Chamber, Situation in the Democratic Republic of Congo in the Case of The Prosecutor v.
Germain Katanga and Mathieu Ngudjolo Chui (30 September 2008), para. 271.
65 ICC Katanga (Pre-Trial), para. 273. 66 Ibidem, para. 274.
67
Kupreskic Trial Judment, para. 524; Supra note 33, p. 920.
the first additional protocol. Nevertheless, the meaning of the word is embedded in a number of articles. One can read the principle in the text of article 51(5)(b) AP I which states:
(b) an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.
In the preparation of an attack, Article 57(2)(a) dictates the proportionality with regard to precautions:
(ii) take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects;
And continues that those who plan an attack shall take the precaution to:
(iii) refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated;
In sub (b) the obligation is added that in the aforementioned situations the attack shall be cancelled or suspended in case of a disproportionate attack.
Additionally, Article 85 (3) treats the violations as grave breaches of the Protocol:
In addition to the grave breaches defined in Article 11, the following acts shall be regarded as grave breaches of this Protocol, when committed wilfully, in violation of the relevant provisions of this Protocol, and causing death or serious injury to body or health:
(b) launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects, as defined in Article 57, paragraph 2 (a) (iii);
(c) launching an attack against works or installations containing dangerous forces in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects, as defined in Article 57, paragraph 2 (a) (iii)
The prohibition on causing disproportionate injury “comes into play during armed conflict whenever civilians not taking direct part in hostilities are in harms way.”68 A violation of any of
the abovementioned provisions results in a certain amount of collateral damage that is disproportionate. Consequently the attack itself is regarded as an indiscriminate attack.69 Thus
it is not the attack itself that is inherently indiscriminate, but the attack reaches the indiscriminate status through a kind of backdoor that is called proportionality. This legal construction makes sense because otherwise a belligerent party conducting a disproportionate attack could successfully call upon the fact that he honored the principle of distinction and thus conducted a lawful discriminate attack with ‘mere’ collateral damage. Although the principles are different, the results of the violations are equated in the creation of individual criminal responsibility.
Another part of the equation that makes it difficult for a military commander to act in accordance with the rules is the lack of having a crystal ball. The person conducting an attack has to make two future70 predictions: first assessing the expected collateral damage and then
valuating the anticipated military advantage. It would be an understatement to say that the ex
ante assessment of two unknown and future faits accomplis might give rise to some difficulties.
The Trial Chamber of the ICTY considered the expectancy of collateral damage in the attack on Martic and held that the risk was excessive in this particular case:
At the times of firing, namely between 7:30 and 8 a.m. and in the evening of 4 August 1995, civilians could have reasonably been expected to be present on the streets of Knin near Martic’s apartment and in the area marked R on P2337. Firing twelve shells of 130 millimeters at Martic’s apartment and on an unknown number of shells of the same caliber at the area marked R on P2337, from a distance of approximately 25 kilometers, created a significant risk of a high number of civilian casualties and injuries, as well as of damage to civilian objects. The trial chamber considers that this risk was excessive in relation to the anticipated military advantage of firing at the two locations where the HV believed Martic to have been present.
The Appeals Chamber did not overturn the findings of the Trial Chamber, but it did criticize its assessment. By majority the Appeals Chamber held that the Trial Chamber’s “analysis that the attacks on Martic involved a lawful military target was not based on a concrete assessment of
68 Supra note 8 (Clarke), p. 84.
69 Samuel Estreicher, ‘Privileging Asymmetric Warfare (Part II)?: The “Proportionality” Principle Under
International Humanitarian Law’, in: NYU Public Law and Legal Theory Working Papers, p. 7.
70 Kenneth Anderson, ‘Imagining a Fully Realized Regime of Targeted Killing trough Drone Warfare And Its
Moral Expression in Necessity, Distinction, Discrimination and Proportionality’, Walzer Conference (3 November 2010), p. 13.
comparative military advantage, and did not make any findings on resulting damages or casualties.”71 The 200 Meter Rule the Trial Chamber came up with could not be based on the
evidence that was produced. The tribunal in first instance failed to seize the opportunity to assess the principle of proportionality, but rather stayed with the legitimacy of the military objective.72 Unfortunately the Appeals Chamber did not take the opportunity to give a guiding
interpretation to the proportionality principle either, but rather swiped the Trials Chamber’s 200 Meter Rule of the table due to a lack of evidence supporting the determination of two hundred meters as the right standard.
2.3.1 Anticipated Concrete and Direct Military Advantage - The (Difficulty of) Application
We now turn to the other side of the balancing scale, which brings us to the question in relation to what the collateral damage should be proportionate. On that side, opposing the collateral damage in the form of civilian casualties, injury and damage to civilian objects, weighs the anticipated concrete and direct military advantage. Collateral damage may be deemed lawful as long as heavy weighing military necessity justifies it. Consequently, the higher the military necessity, the more collateral damage is allowed for. But what exactly is that military necessity and how should it be valued? We have already seen that the subjectivity of the circumstances makes the objectification difficult and that the search for an objective normative framework is still at large. However, to pave the way for a more involved role of the ICC we should further evaluate and categorize the circumstances that create the difficulties.
There are several circumstances that may be categorized according to their nature as being external and internal. External factors are the circumstances of the factual situation that are influencing the decision-making process. Examples are the heightened tension of war, the available means and methods of warfare and the availability of intelligence information. Internal factors are the factors that apply regardless of the situation and consist mainly of the vagueness of various applicable norms that the person concerned has to adhere to. Internal factors should function as a handheld to rely on and base the external factors upon. A lack of specific norms results in a high level of discretion that broadens the scope for the external factors influencing the outcome and disregarding harmonization through increased casuistry.
The military necessity side of the scale consists of a number of elements. First of all the attack must result in some form of military advantage. Such an advantage can be described as any advantage in military sense over the adverse party that contributes to the eventual goal of bringing the adverse party down. Secondly the military advantage has to be concrete and direct. That means there has to be a certain nexus between the attack and the military advantage. Lastly
71 Supra note 31 (Bartels), p. 291; ICTY, Prosecutor v Gotovina, Cermak and Markac, Judgment, IT-06-90-A,
Appeals Chamber (16 November 2012), para. 82.
72 Supra note 31 (Bartels), p. 287.
the person concerned has to anticipate the military advantage and therefore base its judgment on an expected rather than end result advantages.73 That value-based judgment, striking a
balance between mere expected outcomes makes the application of the principle of proportionality very difficult.74
Another interesting issue in assessing the military advantage is the difference between a single attack under scrutiny and the overall objective of the mission.75 Should the principle be
tested according to the former or the latter? Clearly the overall objective of the mission as the military advantage allows for a higher threshold of proportionate collateral damage, since the military advantage is not necessarily bound by temporal or geographical considerations, which would be the case in considering a single attack as the proper interpretation of military advantage.
In the next chapter some more attention will be devoted to the diverging outcomes of the various interpretations of the described norms.
2.3.2 Status of the Principle – Customary Nature
As already mentioned, the principle of proportionality is of cardinal importance to IHL. But what exactly does that mean for the status of the principle? Evidence for its customary nature is abundant and can be found in various statements, strengthening that branch of law.76
According to the Customary International Humanitarian Law Study, the rule applies both in international and non-international armed conflicts and is of a customary nature.77
Additionally, the Trial Chamber of the ICTY held that the principle of proportionality is one of the principles that, as “it would seem, are now part of customary international law, not only because they specify and flesh out general pre-existing norms, but also because they do not appear to be contested by any State, including those which have not ratified the Protocol.”78
Although they are not contested, it might well be that in domestic law systems the principle of proportionality would be constitutionally void for vagueness, as – one could argue – might be the case under American law.79
Yet another indication of the customary nature is the Report of the Secretary-General in which he stated that “the international tribunal should apply rules of international humanitarian law which are beyond any doubt part of customary law so that the problem of adherence of some but not all States to specific conventions does not arise. This would appear to
73 Supra note 8 (Clarke), p. 77. 74 Supra note 42 (Wuerzner), p. 921. 75 Supra note 4 (Triffterer), p. 339. 76 Supra note 26 (Kolb), p. 1015. 77 Supra note 8 (Clarke), p. 79.
78 Kupreskic Trial Judment, supra note 51, para. 524. 79 Supra note 31 (Bartels), p. 275.
be particularly important in the context of an international tribunal prosecuting persons responsible for serious violations of international humanitarian law.”80
Furthermore, the customary nature of the rules on the conduct of hostilities, under which the proportionality rule falls, has also been established in several cases.81 Although the broad
application is generally acknowledged, the “rather general and abstract nature still leaves much space for states and individuals to interpret them according to their own interests.”82
2.4 Proportionality under International Criminal Law
As we have seen already, norms of international criminal law should be adhered to on different stages. International conventions leave room for the interpretation of domestic jurisdiction.83 In
the Netherlands the principle of proportionality in case of collateral damage is codified in Article 5 (5) (b) International Crimes Act (Wet internationale misdrijven):
He who, in case of an international armed conflict, commits (..) the following acts:
b. intentionally starting an attack in the knowledge that such an attack shall incur collateral damage to: loss of civilian lives or injury among them; damage to civilian objects; or grave and long-term damage to the environment, which will be clearly excessive in relation to the anticipated concrete and direct general military advantage.84
Although the original text of the article is in Dutch, the quite literal translation by this author already exposes the similarities with the Rome Statute. Interesting is that the Dutch government intended to criminalize the clearly excessive (duidelijk buitensporig) violation of the principle of proportionality. Thereby following the already established line of Article 8 of the Rome Statute, rather than the humanitarian principle as it is familiar in the first additional protocol to the Geneva Convention.85
Other international crimes for which the Dutch courts consider themselves competent according to the International Crimes Act involve amongst others: genocide, crimes against humanity, torture and war crimes as derived from the Rome Statute. Furthermore it includes criminalized provisions of the UNESCO Protocol on the protection of cultural heritage in the
80 UNSC, Report of the Secretary-General pursuant to Paragraph 2 of the Security Council Resolution 808 (3
May 1993), UN Doc S/25704, para. 34.
81 For an evaluation of those cases: Wuerzner, supra note 39, p. 909. 82 Supra note 42 (Wuerzner).
83 Supra note 12 (Van der Wilt), p. 240.
84 Tekst & Commentaar artikel 5 Wet internationale misdrijven. Amalgation of 35 (3); 51 (5) (b); 55 (1); 85 (3)
(b) Additional Protocol I.
85 Memorie van Toelichting, Wet internationale misdrijven, 28 337 Regels met betrekking tot ernstige
schendingen van het international humanitair recht, nr. 3.
situation of an armed conflict.86 Alas, the droit pénal international found its way to domestic
application by the courts in the Netherlands.
Under international criminal law as applied by the ICC, only the serious violations of IHL, or war crimes, are covered. A first hint of proportionality is codified in Article 8 (2) (a) (iv), which renders the extensive destruction and appropriation of property a war crime as long as it is not justified by military necessity and carried out unlawfully and wantonly. The ‘military necessity’ element is crucial because it only covers measures that are lawful in the light of the laws of war in the first place.87 The next appearance of proportionality occurs in Article 8 (2) (b)
(iv) of the Rome Statute, where it refers to it by stating:
for the purpose of this Statute, ‘war crimes’ means: (..) serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, [the following act]: Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct
overall military advantage anticipated.
The content of this article “reflects the three pillars principles of IHL: distinction, military necessity and proportionality.”88 In the emphasized part of the provision the ménage à trois is
subsumed. In its Report on the Situation in the Republic of Korea the ICC acknowledged its own lack of jurisprudence on the topic, but referred to the case law of the ICTY. The court distinguished the elements in the provision as the:
• anticipated civilian damage or injury; • anticipated military advantage; and
• whether the first one is ‘clearly excessive’ in relation to the latter.89
The application of Article (8) (2) (b) (iv) requires an assessment of all three elements. The difficulties of the first two, anticipated collateral damage and anticipated military advantage have already been discussed. At the level of adjudication, the third element exemplifies the balancing scale on which the first two elements are weighed. The elements of judicial review coincide with the three-staged structure Russo mentions in evaluating proportionality.90 The 86 Memorie van Toelichting, Wet internationale misdrijven, artikel 5 (4).
87 Knut Dörmann, ‘Elements of War Crimes Under the Rome Statute of the International Criminal Court’, p.
81-2.
88 Supra note 4 (Triffterer), p. 338.
89 Office of the Prosecutor ICC, ‘Situation in the Republic of Korea: Article 5 Report’ (June 2014), para. 71. 90 Supra note 3 (Russo), p. 4.
lack of a common unit of measurement to compare them makes the third element difficult to apply. In order to restrict the criminal prohibition to cases that are of a certain disproportionate degree the Rome Statute introduced the term ‘clearly’. That term implies that a judgment prior to an attack is made within a reasonable margin of appreciation and should not be criminalized or second-guessed from hindsight.91 This follows from both the plain text and the intent of the
provision. At the drafting of the Rome Statute, several states expressed their fear of a too strict application by the court. Apparently the inclusion of the word ‘clearly’ is thus the result of a compromise in Rome.92 The Committee reviewing the NATO bombing acknowledged this
interpretation of the term in its Final Report when it referred to the article and held that “the use of the word ‘clearly’ ensures that criminal responsibility would be entailed only in cases where the excessiveness of the incidental damage was obvious.”93 In the words of Pilloud and
Pictet the Article means that: “[i]n order to comply with the conditions, the attack must be directed against a military objective with means which are not disproportionate in relation to the objective, but are suited to destroying only that objective, and the effects of the attacks must be limited in the way required by the Protocol; moreover, even after those conditions are fulfilled, the incidental civilian losses and damages must not be excessive.”94
The Rome Statute enriched us with authoritative provisions that are applied far outside the jurisdictional boundaries of the court. However, the ICC is not the main court that elaborates on the principle. The rather marginalized practical role of the International Criminal Court is due to some practical issues that will be dealt with in the fourth chapter.
Having set out the normative frameworks of IHL and ICL when it concerns the principle of proportionality, an obvious issue lies ahead. If the two frameworks deal with the same principle in a different manner, what are the consequences of those diverging perspectives? This leads us to the third chapter.
91 Supra note 89 (Korea Report), para. 73. 92 Supra note 4 (Triffterer), p. 339.
93 ICTY, ‘Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign
Against the Federal Republic of Yugoslavia’.
94 Claude Pilloud and Jean S. Pictet, ‘Art. 51’, in: Y. Sandoz, C. Swinarski and B. Zimmermann (eds.),
Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987),
no. 1979.
