Abstract
This text is an inquiry into how the international community is understood in and through international law. My prism for this inquiry shall be the principle of proportionality in international humanitarian law, relating expected civilian losses to anticipated military advantage. To properly understand proportionality, I have to revert to the structure of analogical thinking in the thomistic tradition. Proportionality presupposes a third element to which civilian losses and military advantage can be related. In a first reading, I develop how this tradition of thought might explain the difficulties contemporary IHL doctrine has in understanding proportionality. If military commanders misconceive the third element as the sovereignty of their own state, they will invariably apply the proportionality principle in a paternalistic manner. This would obviate the most rudimentary idea of equality among states and do away with the common of an international community. In a second reading, I shall explore whether this third element could instead be thought of as a demos, while retaining the existing framework of analogical thinking. My argument is that this secularizing replacement is possible. Practically, its consequence would be a radical change in the task of the responsible military commander determining proportionality. That commander would now need to rethink civilians endangered by an attack as a demos whose potentiality must be preserved.
The author is Professor of International Law, Torsten and Ragnar Söderberg Foundations Chair in Commemoration of Samuel Pufendorf, Faculty of Law, Lund University, Sweden. I owe thanks to the Yearbook’s anonymous internal and external reviewers and to participants at the Proportionality Seminar at the Faculty of Law, Lund University, on 20 August 2012 for helpful comments and critique on earlier versions of this text. I am particularly indebted to B. S. Chimni, Ulf Linderfalk and Daniel Steuer. Moreover, I have greatly profited from Luca Bonadiman’s research assistance on philosophy, theology and Greek etymology. Thanks are also due to Marie Jacobsson for generous advice on the execution of the Lund project on IHL, Targeting and Military Training, of which this text forms part, and to the Torsten and Ragnar Söderberg Foundations for funding it.
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Notes
- 1.
Kooijmans 1964, at 238.
- 2.
Ibid., at 196.
- 3.
Ibid., at 213.
- 4.
- 5.
Noll 2008, at 101-112. To apply Walter Benjamin’s terminology developed in his Critique of Violence, my 2008 text is an effort to link proportionality to mythical violence, while the present text asks whether a particular form of proportionality assessment focused on the demos might end up in a contemplation of what Benjamin terms ‘divine violence’.
- 6.
Henckaerts and Doswald-Beck 2005 (hereinafter CIHL), Rule 14, at 46. This particular expression of the norm as customary law is preceded by a treaty law formulation in article 51.5.b of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977 (hereinafter API), which proscribes as indiscriminate 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’. The obligation to take precautions in article 57.2.a.iii API also reflects that norm. The qualification of the proportionality principle as ‘fundamental’ is Schmitt’s. Schmitt 2007, at 156. The Manual on International Law Applicable to Air and Missile Warfare offers another textual rendition of the proportionality principle: ‘An attack that may be expected to cause collateral damage which would be excessive in relation to the concrete and direct military advantage anticipated is prohibited.’ Program on Humanitarian Policy and Conflict Research at Harvard University Manual on International Law Applicable to Air and Missile Warfare, (2009), at 10 (hereinafter HPCR Manual).
- 7.
Rule 1 CIHL. The formulations in treaty law provisions (arts. 48 and 51.2 API) are slightly different.
- 8.
The purpose of my five examples is to illustrate dominating patterns within the IHL literature. The majority of IHL authors affirm the existence and usefulness of the principle while being unable to detail its content. Occasionally, single writers voice scepticism on the content of the principle. A recent and questionable example is Estreicher, claiming that this principle merely proscribes the excessive use of military force and does not require complex balancing. According to Estreicher, the standard of non-excessiveness requires that the military use no more force than necessary to accomplish concrete, direct military objectives. Estreicher 2012, at 143-157. ‘No complex, metaphysical “exchange value”, no “comparison between things that [are] not comparable” is required.’ Estreicher 2012 at 156-157 (footnote omitted). To my understanding, his formulation of the standard justifies any amount of force and any number of civilian losses if only its necessity in achieving a concrete, direct military objective can be rationally argued.
- 9.
Schmitt 2007, note 6, at 156. Interestingly, the Commentary on the HPCR Manual suggests that ‘[t]he standard is objective in that expectations must be reasonable.’ I am not sure that this is much of a contradiction: the Commentary’s concept of an ‘objective standard’ is apparently a rather thin one. If anything, it illustrates that the use of terms as ‘subjective’ and ‘objective’ do not rely on a common understanding across the IHL literature. Program on Humanitarian Policy and Conflict Research at Harvard University, Commentary on the HPCR Manual on International Law Applicable to Air and Missile Warfare, (2010), at 91, para. 6 (hereinafter HPCR Commentary).
- 10.
See the positions taken by Poland and Syria at the Diplomatic Conference, in CIHL Database, Practice on Rule 14, available at http://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule14. Accessed 20 September 2012.
- 11.
The most recent monograph of relevance to this issue is Boothby 2012. The analysis of proportionality runs over four of the book’s 603 pages and basically reiterates the problems of incommensurability and subjectivity. I cannot see, however, that Boothby’s text expresses a more fundamental doubt on the operability of article 51.5.b API.
- 12.
Dinstein 2010, at 128-138.
- 13.
Ibid., at 130.
- 14.
Ibid.
- 15.
Holland 2004, at 48-49 (footnotes omitted).
- 16.
Henderson 2009.
- 17.
Ibid., at 221. In a section on ‘Further research’, Henderson writes that ‘the fundamental issue remains that it is difficult to determine exactly what is excessive in any given case’, suggesting a comparative study of similar issues across legal regimes. Ibid., at 247.
- 18.
See the positions taken by Poland and Syria at the Diplomatic Conference, in CIHL Database, Practice on Rule 14, available at http://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule14. Accessed 20 September 2012. During the negotiations leading up to the adoption of API, the Soviet Union and other Warsaw Pact Members were negatively disposed toward the proportionality principle, while the West was supportive.
- 19.
The HPCR Manual as well as the HPCR Commentary were elaborated by a ‘core group of experts’ of which 20 were affiliated to Western institutions, two to the ICRC, one to a Chinese university. Further involved was a group of government experts representing seven Western states and a group of occasional participants of which four were affiliated to Western institutions, one to the ICRC and one to a military in Sub-Saharan Africa. See HPCR Commentary, at 8-11.
- 20.
HPCR Commentary, at 92.
- 21.
I am aware of only one IHL scholar proposing a ‘mathematical’ expression of proportionality. Javier Guisández Gómez suggests a proportionality index (PI) relating military advantage (MA) to collateral damage (CD) as follows: PI = MA/CD. He refrains from any indication of how to put numbers on MA and CD. For this reason already, his text is unfit to underpin any quantitative proportionality modeling. Guisández Gómez 2007, at 197-243.
- 22.
The HPCR Commentary explains the content of the HPCR Manual. The HPCR Manual’s rules are designated as ‘Black-letter rules’ (HPCR Manual, at iv). Given the almost total dominance of Western experts in the process, I would think that a more modest term would have been called for, especially if account is taken of article 38.1.d of the ICJ Statute.
- 23.
Yotam Feldman and Uri Blau, ‘Consent and Advise’, Haaretz, 29 January 2009 (no longer available on the Haaretz website).
- 24.
The reduction of the case to Palestinian males of a certain age span reflects that the numerical approach needs to discard all complicating contextual factors. Considering the sacrifice women, children, elderly or infirm persons, or any constellation of them together with males of optimal age for military service, might have made the 2002 exercise more realistic – and altogether impossible. I simply cannot imagine ILD staff individually drawing up different columns for different categories – men, women, children, elderly persons, infirm persons and so on, sub-divided into age cohorts – to then fill them with all conceivable number combinations for sacrificable individuals across these categories. Taking the numerical approach seriously instils a sense of its blasphemous character. As Anne Orford stated, ‘[t]he decisions and scholarly articles and books and treaty provisions expressing their faith in arithmetic and risk assessment and the possibility of evaluating and exchanging things that are substitutable one for the other are communicated through language. Language exceeds calculation, and reaches out to that which is singular and unique even in the calls for measurement.’ Orford 2005, at 213.
- 25.
Feldman and Blau, see n. 23 above
- 26.
One example is the use of computer software by the U.S. Army to speed up the identification of important persons in Afghan insurgents’ social networks. See http://www.army.mil/article/38497/Social_Networking_The_Silent_Counterinsurgent. Accessed 24 September 2012.
- 27.
- 28.
Downes-Martin 2011, at 107-112.
- 29.
On 29 March 2012, the U.S. Defense Advanced Research Projects Agency (DARPA) issued a call for the mathematics, computer and data visualization communities to put forward proposals that allow the Department of Defense to meet the challenges of massive increase in data to be transformed into ‘actionable information’. Available at http://www.darpa.mil/NewsEvents/Releases/2012/03/29.aspx. Accessed 1 October 2012.
- 30.
Somewhat surprisingly, state obligations under IHL turn out to be an argument for radically improving operations assessment methods and practices in the U.S. military. It illustrates how well IHL converges with the logic of military planning, but also how much the reality of military planning is lagging behind its own logic.
- 31.
Cicero 1991, Section 11. Cicero’s defense speech for Milo, accused for murdering Clodius, is generally taken as the source for the phrase. From the wording of Section 11 in Pro Milone, it is entirely clear that Cicero did not make the point that Milo’s presumed self-defence fell outside the law, but rather that the law’s silence amounted to an outright permission to defend oneself against a plotter.
- 32.
In the Greek language, this would be an antalogia, not an analogia (the prefix ‘ant-’ signifying ‘instead’). I am indebted to Luca Bonadiman for explaining this to me. Keeping within the tradition of proportionality perforce implies that the weight of one of two countervailing principles never can be zero.
- 33.
Entry on ‘proportion’, Georges 1913.
- 34.
Entry on ‘analogon’, Oxford English Dictionary, 2nd edition.
- 35.
I am indebted to Luca Bonadiman for pointing this out to me.
- 36.
The issues related to this important aspect of analogy are dealt with in Reidhav 2007.
- 37.
The standard reference is Alexy 1994.
- 38.
Ashford 2009.
- 39.
For the record, a frequently discussed type of analogy omitted here is the analogy of attribution, which relates two things to each other when a primary thing contributes to or causes a secondary thing.
- 40.
In her intriguing 2009 EJIL article, Professor Anne Peters has superimposed humanity over sovereignty to argue for an international law centred on the individual (and for outlawing the vetoing of ‘proportionate humanitarian action to prevent or combat genocide or massive and widespread crimes against humanity’). Peters 2009. I must concede that I have difficulties with this argument. The reference to proportionality and the idea of steady progress in ‘humanizing’ international law make me think that this type of argument stealthily assumes ‘humanity’ to be structured as Trinitarian divinity, bringing us ever closer towards a full revelation of what is human – indeed the second coming of Christ.
- 41.
And it is ultimately springing forth from the demos, as I will argue in Sect. 9.4 below.
- 42.
- 43.
Aquino 1997.
- 44.
Przywara’s term for this phenomenon is ‘Spannungseinheit’, translated by Betz as ‘unity-in-tension’.
- 45.
‘The cognition of being happens only analogously: the power of significance of findings is relativized by their power of non-significance, as is stated in the formula of the Fourth Lateran Council of 1215: “inter creatorem et creaturam non potest tanta similitudo notari, quin inter eos maior sit dissimilitudo notanda”.’ (My translation.) The Latin excerpt from the Fourth Lateran Council’s Second Canon reads as follows in English: ‘between the Creator and the creature there cannot be a likeness so great that the unlikeness is not greater.’ The Canons of the Fourth Lateran Council, 1215, available at http://www.fordham.edu/halsall/basis/lateran4.asp. Accessed 9 August 2012.
- 46.
Betz 2004, at 29.
- 47.
Betz 2004, at 29. Brackets and emphasis in the original.
- 48.
At this bewildering intersection, thanks are again due to Luca Bonadiman, who translates God’s pronouncement ‘έγω είμί ό ων’ in Exod. 3:14 as ‘I am the one-be’.
- 49.
The Catholic Church has invested itself heavily into thomism in general and the analogia entis in particular. Pope Pius X has declared the capital teachings of Thomas ab Aquino to be ‘the foundations upon which the whole science of natural and divine things is based’ and therewith beyond debate (Encyclical Doctoris Angelici, 29 June 1914), while Pope Benedict emphasizes that the Church has always insisted on an analogical relation between God and human beings in his Regensburg address of 12 September 2006 (see paragraph accompanying note 10 in the Regensburg address at http://www.vatican.va/holy_father/benedict_xvi/speeches/2006/september/documents/hf_ben-xvi_spe_20060912_university-regensburg_en.html. Accessed 16 January 2013).
- 50.
- 51.
In military contexts, targeting is usually depicted as a circle of events, with the commander’s objectives being placed at the top. Targeting circles always move cyclically from objectives over targeting and actual infliction of violence on to the assessment of results, which then serve to inform the commander’s objectives.
- 52.
Rancière 2009, at 1-2.
- 53.
Ibid.
- 54.
Rancière 2009, at 2-3.
- 55.
Ibid., at 3.
- 56.
Ibid.
- 57.
Davies 1998, at 11.
- 58.
Ibid. It is worth recalling that man being created ‘in the image of God’ was precisely the point of departure for Kooijmans reconstruction of equality in international law. See text accompanying Kooijmans 1964, at 196.
- 59.
On the question of conquest, Pufendorf writes: ‘Empire also or Government comes to be acquired by War, not only over the particular or single Persons conquered, but entire States. To render this lawful, and binding upon the Consciences of the Subjects, it is necessary, That on the one Side the Subjects swear Fidelity to the Conqueror; and on the other, that the Conqueror cast off the State and Disposition of an Enemy towards them.’ Pufendorf 2003, at 243 (footnotes omitted).
- 60.
Ernst Kantorowicz famously introduced the argument that the theological conception of the Church as a corpus mysticum migrated first into the King and then into the secular state. Kantorowicz 1957, in particular Chapter V.
- 61.
That said, the U.S. counterinsurgency doctrine appears to reverse the IHL assumption that persons lacking combatant characteristics are to be taken as civilian. The counterinsurgency logic is one where humans need to qualify as civilians, rather than to be assumed as being civilians in the absence of further qualifications. Amin Parsa’s work on counterinsurgency and IHL has alerted me to these issues. On the transformation of war and of the civilian-combatant dichotomy, Berman remains instructive. Berman 2004-2005, at 1-72.
- 62.
‘Opinions in the Group of Experts were divided as to whether civilians who are physically within a military objective (e.g., civilian employees working in a munitions factory) count for the purposes of the application of the principle of proportionality. Three views were expressed. Some experts were of the opinion that such civilians do not count because they have chosen to be there and have thereby voluntarily assumed the risk of an attack by the enemy. The majority of the Group of Experts felt that the principle of proportionality applies to such civilians as in all other cases. However, some experts — while belonging to that majority — pointed out that the application of the principle of proportionality will not make a material difference when the target is a high-value asset (such as a munitions factory), referring to the fact that extensive casualties do not necessarily amount to excessive collateral damage.’ HPCR Commentary, at 93-94.
- 63.
I will mention below that the oikos is increasingly targeted in contemporary military campaigns. One could argue that coherence requires that the level of protection for persons working for military subcontractors would decrease even in other areas as the assessment of proportionality.
- 64.
Often, polis is understood as a community organized in a state. For the sake of simplicity, I shall us the term polis in that sense in the following. Let it be said that a polis can very well take another form than a state, and my observations would apply to it mutatis mutandis.
- 65.
Do civilians choosing to place themselves in the vicinity of military objectives (so-called ‘voluntary human shields’) count in the proportionality analysis? The expert group behind the HCPR Commentary was divided on the matter: ‘[t]here were three divergent views within the Group of Experts about the status of “voluntary human shields”. One view was that voluntary human shields are not counted in the calculation of collateral damage because they are directly participating in hostilities. A second view held that voluntary human shields do not qualify as civilians directly participating in hostilities. Hence, they remain protected civilians who count fully under the proportionality analysis. … Finally, the third view agreed with the second view as to the status of voluntary human shields, but asserted that the principle of proportionality will apply to them in a modified (more relaxed) way, since they have deliberately put themselves in harm’s way in order to affect military operations.’ HCPR Commentary, at 144 (footnote omitted).
- 66.
Rancière 2009, at 11.
- 67.
Ibid., at 10.
- 68.
Ibid., at 11.
- 69.
It is a wholly different question whether the requisite immanence is at all possible in a form of warfare where much of the sensing is delegated to technology and much of the making of sense to algorithms.
- 70.
I am grateful to Daniel Steuer for alerting me to the possibility that Rancière’s demos might introduce a ‘negative absolute identity’. And, I should add, to the consequences that might entail for any attempt to think targeting analogically.
- 71.
Considering Rancière’s explanation of the power of the demos accompanying footnote 67 above, it’s is easy to see that Rancière’s dichotomy of indifference and difference restages the role played by Przywara’s essence and existence. The indifference to difference of the demos is analogous with the identity of essence and existence in Przywara’s Creator. Rancière’s heteron is characterised by substitutability, which is another way of God’s being ‘in-and-beyond’ in Przywara’s text. The heteron is an unknowable third that is semper major just as Przywara’s Creator. Perhaps Rancière’s contribution is best encapsulated if we adjust the formula stipulated by the Fourth Lateran Council to read: ‘between demos and polis there cannot be a likeness so great that the unlikeness is not greater’.
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Noll, G. (2013). Analogy at War: Proportionality, Equality and the Law of Targeting. In: Nijman, J., Werner, W. (eds) Netherlands Yearbook of International Law 2012. Netherlands Yearbook of International Law, vol 43. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-915-3_9
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