(p.

1187) Chapter 55  The Principle of Proportionality

from a Jus Ad Bellum Perspective
I.  Introduction
THE contemporary law of the use of force is codified in the UN Charter
which provides that states are prohibited from using force in their
international relations,1 with the exception of military measures which are
either mandated by a Chapter VII Security Council resolution2 or they are
taken in self-defence pursuant to Article 51 of the UN Charter. Under the
UN Charter the right of self-defence can be exercised when an armed
attack occurs and only until the Security Council takes action. The UN
Charter nowhere stipulates the conditions which are attached to the
exercise of the right of self-defence. It is therefore generally accepted that
apart from the UN (p. 1188) Charter law, the law of self-defence is also
regulated by customary international law.3 The diplomatic deliberations of
the Caroline incident of 1837 provide the criteria according to which states
may resort to self-defence, namely necessity, imminence, and
proportionality.4
Today, despite the uncertainty not only with regard to the legal regulation of
the use of force but also to the content of the principle of proportionality, all
states agree that for any use of force to be lawful it must be both necessary
and proportionate. Being in a dialectical relationship with the law of the use
of force, proportionality serves as a regulatory and legitimizing factor for
any use of force (ie enforcement of a Security Council mandate, self-
defence, or use of force to protect human rights). But as states increasingly
opt for the use of force in novel situations for which the UN Charter law on
the use of force does not provide (ie non-traditional armed conflicts with
irregular forces/terrorist groups), proportionality appears to be an evolving
concept, the dimensions of which are gradually unveiled. As a
consequence, international legal scholars face difficulties in analysing and
presenting a satisfactory account of proportionality in the decision-making
process of states when they resort to force.5 Finally, even though
proportionality remains a valid principle which still influences the outcome
of the diplomatic deliberations within the Security Council, when member
states consider whether to grant authorization for the use of force, they
appear not to be confident with what proportionality entails.
This chapter addresses the concept of proportionality as it is reflected in
the International Court of Justice (ICJ) judicial decisions and the legal
opinions of the ICJ judges; the ultimate aim of the present authors is to
examine the concept of proportionality in the context of self-defence and
use of force to protect human rights by reference to the ‘subsidiary means’
for the determination of rules of law, namely the findings of the ICJ and
selected writings of legal scholars.6 While these sources are not by
themselves international law, when coupled with evidence of international
custom as is the case with proportionality, arguably they may provide us
with the substance of the principle of proportionality.
(p. 1189) II.  Proportionality in Customary International
Law
Proportionality in jus ad bellum is traced back to the Caroline incident of
1837 and it is premised in customary international law.7 Although
the Caroline criteria are universally considered to be a watershed event in
the history of jus ad bellum, they currently remain vague and do less than
little to provide us with the content of the principle of proportionality.
Arguably, they provide an unstable ‘platform’ upon which a state may
formulate what should be a necessary and proportional response to a
threat that is yet to materialize or to an attack carried out by non-state
actors. The fact that the contemporary international environment is
permeated by modern security threats, the seriousness of which are
amplified by advances in technology and shifts in the nature of warfare (ie
cyberwarfare), adds a layer of opaqueness to the conditions of applicability
of the Caroline criteria outside the traditional interstate setting. Moreover,
when states claim to exercise their right to self-defence, they usually avoid
clarifying whether their right to self-defence is based on customary and/or
UN Charter law. Accordingly, it is observed that for a number of states
Article 51 is interpreted to encompass or even impose the customary
criteria of necessity, imminence, and proportionality, while not stipulating as
such.8 Similarly, the fact that recent years have seen the active launching of
military operations by regional organizations, sometimes mandated by the
Security Council and sometimes in the absence of Security Council
authorization, raises the question of how proportionality is gauged in these
particular uses of force. The ICJ, on the other hand, has approached the
applicability of the criterion of proportionality on a case-by-case basis
without establishing a general theoretical framework on the content of this
criterion and how it applies or should evolve.9
The approach of the ICJ to the content of the principle of proportionality
could be described as confusing, if not phobic, due to the Court’s
reluctance to define or even analyse the dimensions of proportionality
in jus ad bellum. However, where the Court has refrained from providing us
with a detailed analysis of the principle of proportionality, the ICJ judges’
tendency to append a separate opinion, dissenting opinion, or declaration
gives shape to the customary dimensions of proportionality.
In 1989 in the Nicaragua case, the ICJ noted that ‘there is a specific rule
whereby self-defence would warrant only measures which are proportional
to the armed attack and necessary to respond to it, a rule well established
in customary international (p. 1190) law.’10 According to the Court’s finding,
a proportionate response in self-defence amounts to any type of measures
necessary to respond to an armed attack that has taken place or is
ongoing. In this case, the defensive measures were found to have failed
the test of proportionality due to a combination of factors, for example the
selected targets and the scale of the attacks.11Given this fact and the fact
that the Court did not attempt to specify what type of measures may be
acceptable as proportionate (apart from being necessary) in the exercise of
the right of self-defence, the Court appears to have interpreted the concept
of proportionality against the size and the scope of the armed attack.
The Nicaragua approach was reaffirmed in the Nuclear Weapons case.12
In the Oil Platforms case what the Court required from the US was to ‘show
that its actions were necessary and proportional to the armed attack made
upon it.’13 With this statement, the Court clarified that the proportionality of
self-defence measures is to be assessed neither in relation to the final
objective of the self-defence operation nor in relation to the specific
incidents of targeting;14 instead, proportionality should be assessed by
taking into account the scale of the whole operation as well as the
necessity of the measures taken in self-defence.15 The ICJ therefore stated
that ‘as a response to the mining by an unidentified agency, of a single
United States warship, which was severely damaged but not sunk, and
without loss of life, neither “Operation Praying Mantis” as a whole, nor even
that part of it that destroyed the Salman and Nasr platforms, can be
regarded, in the circumstances of this case, as a proportionate use of
force.’16
In the Armed Activities case, once the Court found that the preconditions
for the exercise of self-defence did not exist in the particular case, it
refrained from examining whether the alleged actions in self-defence
against large-scale attacks by irregular forces were exercised in
circumstances of necessity and in a manner that was proportionate.
However, the Court was tempted to comment that ‘the taking of airports
and towns many hundreds of kilometres from Uganda’s border would not
seem proportionate to the series of trans-border attacks it claimed had
given rise to the right of self-defense, nor to be necessary to that end.’17 In
this case, the (p. 1191) Court seemed to imply that the remoteness of the
alleged actions in self-defence in relation to the nature of the original attack
violated the principles of proportionality and necessity.
The above suggests that proportionality was interpreted by the ICJ as
striking a balance between the self-defensive action and the wrong
provoking it.
Contrary to the ICJ, Judge Ago had originally provided another
interpretation of the principle of proportionality. He had argued that: ‘the
requirement of the proportionality of the action taken in self-defence …
concerns the relationship between that action and its purpose, namely …
that of halting and repelling that attack. … It would be mistaken, however,
to think that there must be proportionality between the conduct constituting
the armed attack and the opposing conduct … What matters is the result to
be achieved by the defensive action, and not the forms, substance and
length of the action itself … Its lawfulness cannot be measured except by
its capacity for achieving the desired result.’18 Judge Ago’s position has
been upheld by other ICJ judges in their dissenting or separate opinions.
For example, Judge Schwebel in the Nicaragua case,19 Judge Higgins in
the Nuclear Weapons case,20 and Judge Kooijmans in the Armed
Activities21 case connect proportionality with the fulfilment of the general
objective of the use of force—that is, the repelling of the attack.
In state practice, states have rarely applied the interpretation of
proportionality favoured by the ICJ.22Similarly, several scholars argue that
the principle of proportionality determines the amount of force that can
legitimately be used to achieve the goal pursued.23
It seems, therefore, that there are two possible approaches with regard to
the interpretation of the principle of proportionality: it could be measures
either against (p. 1192) the size and scope of the armed attack (first
interpretation of proportionality, favoured by the ICJ) or measures that meet
the actual needs of self defence, that is, measures to repel the attack and
restore the situation that existed prior to the attack (second interpretation of
proportionality, favoured by certain ICJ judges, international scholars, and
possibly states).
Nonetheless, the distinction as to the two possible interpretations of
proportionality may not be so rigid. Proportionality in jus ad bellum should
be understood to take the form of a qualified scheme benefiting from two
dimensions, better termed as ‘double proportionality’.24 Double
proportionality essentially combines the two interpretations of
proportionality. One dimension of proportionality is constructively built on
the element of necessity to respond to the attack (in terms of its size and
scope) while the other dimension of proportionality reflects the fulfilment of
the general objective of the use of force—that is, the repelling of the attack.
Double proportionality is likely to be more popular with states due to the
political deliberations within national parliaments and the Security Council
as well as considerations that fall within the ambit of the defence-budget
needs and the contemporary strategic realities. For example, the UK
Attorney General on 21 April 2004 in his response to a Parliamentary
Question referred to the need for the use of force to be ‘proportionate to the
threat faced and … limited to what is necessary to deal with the threat.’25
III.  Measuring Double Proportionality
The question is how can one measure double proportionality and, in
particular, how can one measure proportionality of a use of force when its
purpose is to meet the (p. 1193) general objective of the use of force.26 The
proportionality of the response to the act triggering the right of self-defence
depends on the degree of force and consequently on the form of military
measures that might lawfully employ. This means that the principle of
proportionality imposes an additional level of limitation upon a state’s
conduct of hostilities, influencing its choice of weapons, targets, and the
area of conflict,27 as well as the geographical28and destructive impact of
responses on third states, the environment,29 and people, and even
influencing whether the campaign should rely mainly on air strikes and high
altitude, rather than on a combination of air and land forces. Judge
Greenwood has aptly noted that modern jus ad bellum ‘is not concerned
solely with whether the initial resort to force is lawful; it also has
implications for the subsequent conduct of hostilities.’30
The measures by which proportionality is calculated have been traditionally
analysed from the jus in belloperspective. This modern analysis of
proportionality in jus ad bellum links issues that are traditionally found in jus
in bello with jus ad bellum issues. In fact, it ‘picks up’ jus in bello issues and
puts them under the umbrella of the jus ad bellum. This has an impact on
the legality of the use of force irrespective of whether the state resorting to
the use of force complies with the jus in bello. Indeed, calculating the
principle of proportionality by the means and methods of warfare is an
approach that can latently be found in the Nuclear Weapons and Oil
Platforms cases. In the former case, the Court considered whether a
nuclear response as a means of warfare is compatible with the principle of
proportionality, and stated that ‘the very nature of all nuclear weapons and
the profound risks associated therewith are further considerations to be
born in mind by States believing they can exercise a nuclear response in
self-defence in accordance with the requirement of
proportionality.’31 Similarly, in the Oil Platforms case, commenting on the
criteria of necessity and proportionality, the Court highlighted that one
aspect of both of (p. 1194) these criteria is the ‘nature of the target of the
force used avowedly in self-defence’.32 The ICJ considered here the
lawfulness of the self-defence measures by additionally taking into account
whether the selected targets were used for military activities, whether there
was sufficient evidence proving it, and whether the alleged victim state took
sufficient steps to complain repeatedly to the alleged aggressor state. The
approach of the ICJ in Oil Platforms has the effect of interweaving issues
and considerations of two different and separate bodies of laws—those
of jus ad bellum and jus in bello.
Judge Higgins in her separate opinion in the Wall advisory opinion found
that even if the construction of the wall were an act of self defence, which
seemed to have diminished attacks on Israeli civilians, the question as to
why the particular course of action (ie construction of the wall, and route
and geographical position of the wall) was chosen as a means of satisfying
the criteria of necessity and proportionality over another possible course of
action remains unanswered. Both Judge Higgins and Judge Kooijmans
drew on the impact of the wall construction on the Palestinians’ lives,
connecting thus the proportionality issue with the ‘attendant hardships’ for
the Palestinians who were not involved in the attacks.33
However, ‘picking up’ or ‘borrowing’ jus in bello considerations when
considering the ambit of jus ad bellumproportionality, does not converge
the in bello with the ad bellum proportionality. In the past few years, a small
number of scholars seem to disturbingly converge the jus ad bellum with
the jus in bello proportionality.34Obviously the use of force is subject to both
legal regimes. Their application, however, is neither simultaneous nor
parallel. The jus in bello rule of proportionality focuses on the regulation of
the conduct of the conflict. Proportionality in jus in bello determines the
balance between the achievement of a military goal and the cost in terms of
suffering and loss of civilian life.35 It weighs the legitimacy of attacking a
particular military target, for example collateral damage to civilians, it
applies irrespective of whether or not the use of force is deemed lawful,
and plays no part whatsoever on the legality of the use of force as a whole.
On the other hand, jus ad bellum proportionality precedes over jus in
bello proportionality. Its breach renders (p. 1195) illegal an otherwise legal
use of force. Even in the scenario where the use of force is considered
legal in terms of its proportionality under jus ad bellum but illegal in terms of
its proportionality under jus in bello (or vice versa), the assessment of the
proportionality of the actions in question will not be distorted by the
applicability of the other legal regime. Hence, the legality of actions in jus in
bello cannot mitigate their illegality under jus ad bellum.
It is noteworthy, for example, that the legality of the Israeli intervention in
Lebanon in 2006 primarily failed due to the excessive damage caused to
civilians and civilian infrastructure.36 The Commission of Inquiry on
Lebanon, concluded that, albeit the legal justification for self-defence,
‘Israel’s military actions very quickly escalated from a riposte to a border
incident into a general attack against the entire Lebanese territory. Israel’s
response was considered by the Security Council in its resolution 1701
(2006) as “offensive military operation”’.37 These actions have the
characteristics of an armed aggression, as defined by General Assembly
Resolution 3314 (XXIX).
However, it should be admitted that the criterion of proportionality is not
perceived as a static legal formality. On the contrary, it is a legal form of
conduct which encompasses considerations that may determine or affect to
a certain extent the conduct of hostilities, the duration of the military
operation, and the choice of means and methods of warfare (eg
geographical scope of operations, etc). This means that a state may find
itself having limited options in the operational field. In other words, to the
extent that the jus ad bellumproportionality determines the legality of
targeting certain military objectives or using certain weaponry, the
measures that a state devises must not exceed those necessary for the
state to defend itself against the armed attack. Consequently, the deaths of
civilians and destruction of civilian infrastructure which constitute a violation
of proportionality under jus in bello may indicate (with hindsight or post
facto) the violation of the jus ad bellum proportionality.
(p. 1196) IV.  Proportionality and Self-Defence
According to Article 51 of the UN Charter, states may exercise the inherent
right to individual or collective self-defence if an armed attack occurs. This
provision has troubled legal scholars and strategists as to whether self-
defence can take place before, after, or at the time of the occurrence of the
armed attack. As a consequence, the interpretation of Article 51 in different
situations has resulted in classifications of self-defence, that is,
anticipatory, interceptive, or pre-emptive. These classifications are based
on the purpose and time frame of the response to the armed attack or the
threat of armed attack. While the purpose of the traditional (restrictive
conception of) self-defence is to defend against an armed attack that has
already taken place, the purpose of anticipatory self-defence is to pre-empt
an imminent or expected attack, and the purpose of pre-emptive self-
defence is to deter states or non-state actors from pursuing a specific
course of action that, if allowed to evolve/mature, may potentially develop
into an armed attack. The various classifications of self-defence are
confusing and tend to devalue the customary international law modalities—
such as necessity and proportionality—which govern the exercise of the
inherent right of self-defence. However, the premise for all these
classifications of self-defence is that the defending state, which acts in
good faith and on the basis of evidence available at the time, has no choice
of other means than to respond with forcible actions. This means that there
are no alternative effective and peaceful means to repel or avert the attack
in question.
Proportionality in self-defence is concomitant with the size and scope of an
armed attack (first interpretation of proportionality) and the overall objective
of the defensive responses (second interpretation of
proportionality).38 Proportionality is subject to the balance between the
threat and the means and the methods of warfare chosen to deal with the
threat. However, the current security milieu faces challenges which may
distort the assessment of proportionality. The problem lies mainly in the
assessment of what the threat amounts to (within the anticipatory or pre-
emptive self-defence context).39 To a lesser extent, the problem arises
when assessing the reasonable means to repel such a threat (ie military
measures against non-state actors).
(p. 1197) In the contemporary security environment, a number of variables
such as the nature of the security threats in terms of their source, the
threats’ permeability, the international relations of the states concerned, the
national security doctrines of the states concerned, as well as the strategy
doctrines of international organizations, and the possibilities of resolving
peacefully the imminent crisis in question, influence states’ perceptions of
the imminence of the threat of armed attack or the realization of the armed
attack which may, for example, be preceded by a string of
cyberattacks.40 Even though the jurisprudence of the ICJ cannot provide us
with a definition of an ‘armed attack’, states’ evolving perceptions of the
concept of ‘armed attack’ as well as of the concepts of necessity and
proportionality are reflected in the international fora of international
organizations (UN, North Atlantic Treaty Organization (NATO), etc). This
explains further why the Security Council has rarely taken action to
condemn cases where states used force in self-defence in situations which
did not necessarily comply with a restrictive interpretation of Article 51. As
has been pointed out, ‘usually [the Security Council] affirms the right of self-
defence rather than disapplies it’.41 Despite the fact that the legality of many
self-defence cases is not disputed by the Security Council, the
proportionality of the use of force in many of those cases was judged by
reference to a qualified proportionality scheme (see the previous
discussion).
Self-defensive action does not purport to serve as punitive action against
the aggressor. Crucially, even in the restrictive interpretation of self-
defence under Article 51 the purpose of the use of force is concerned not
only with defence against the attack that has taken place but is also future-
oriented. Even within the traditional conception of self-defence, the self-
defensive response may not only be concerned with the repulsion of an
attack but also with the pre-emption of future armed aggression.42
Another issue relevant to the assessment of proportionality is the timing of
the defensive action and the duration of the action in question. Should the
defensive action continue years after the armed attack, or after the first
response to an armed attack, or after the end of hostilities or after the
period in which any resumed attack could be contemplated? The temporal
element of proportionality has been the object of debates among scholars.
For example, Gardam argues that proportionality (p. 1198) remains
relevant throughout conflict.43State practice is inconclusive on the precise
conditions required. The essence of the principle of proportionality is a
priori based on the relationship between the threat and the defensive
response; inherent in this relationship is the temporal element. After all,
even Article 51 of the UN Charter verifies the temporal element of the
exercise of the right of self-defence as it clearly provides that a state will
exercise its inherent right to self-defence until the Security Council steps in.
Self-defensive measures in the form of drone attacks against members of
Al Qaeda which continue to take place over ten years after Operation
Enduring Freedom began in Afghanistan admittedly stretch the temporal
element of proportionality. As proportionality is organically time-
conditioned, the legality of the defensive measures is dependent on the
evidence available at the time of the defensive response.
An important aspect of proportionality is the gathering of qualitative
intelligence that will verify the intent of the potential aggressor and
the nature of the threat.44 From this point of view, intelligence forms an
essential part of the criterion of necessity and contributes to a dynamic and
pragmatic assessment of proportionality in the sense that throughout the
use of force in self-defence the question that ought to be asked is whether
there is need for further force to be used. The scope of the response in
self-defence will be determined in accordance with the evidence known or
reasonably to have been known at the time of response. Such knowledge
of evidence, depending on whether the defending state will share it with the
rest of the international community, will condition the reaction of third states
after the response. The assessment of the principle of proportionality is
also dependent on the reaction of third states. However, there are certain
issues surrounding the gathering of intelligence that would distort the
assessment of proportionality and the identification of the threat in question
as well as of the means available in practice to counter it. For example,
there is always the possibility that the evidence gathered for intelligence
purposes is patchy, due to its nature or source, or even wrong. For this
reason in the Oil Platforms case the ICJ rejected any margin of
appreciation by states and requested clear and objective proof of a
threatened attack.45 However, the ICJ’s finding seems not to have taken
into consideration certain strategic issues. It is highly questionable what
kind of evidence the alleged defending state must produce and at which
stages of the defensive action the evidence must be communicated to
other states.
(p. 1199) The assessment of proportionality is dependent on the
assessment of the timeline of the threatened attack as well as on the
gathering of real evidence; the nature of a proportionate defensive
response necessitates that the defensive action is planned and carried out
with the belief and the intent that any delay in countering the threatened
attack will probably result in the defending state’s inability to defend itself
against the threatened attack and that defending state has considered all
the parameters in order to decide whether there is a need for further force
to be used. Overall, the impact of the force used must be weighed against
and, if possible, be less than the impact of the attack it is intended to
preclude or the damage it is likely to prevent. Nevertheless, when the threat
targets mainly the survival of a state rather than the less vital interests of
the state, the scope of proportionality of the response in self-defence
amplifies correspondingly.
V.  Proportionality and Anti-Terrorist Operations
Scholarly work until 2001 identified three different approaches to measure
proportionality especially against terrorist attacks: first, the ‘eye-for-an-eye’
approach; secondly, the ‘cumulative proportionality’ approach; and, thirdly,
the ‘deterrent’ proportionality.46 The eye-for-an-eye proportionality approach
posits that the defensive response be proportionate to the character of the
initiating threat47 (ie first interpretation of proportionality). The second
approach posits that in the case of a series of attacks, the cumulative effect
of these attacks may justify a single, yet of greater impact, defensive
response48 (ie first interpretation of proportionality). According to this
approach, if a state is threatened and harassed by terrorists on a repetitive
basis, the state may have only one chance to avert future attacks or to
reduce their effectiveness and frequency: that of taking action in self-
defence of a greater degree than each terrorist attack in order to eliminate
the centre of the terrorist organization.49 The third approach posits that the
defensive response be of sufficient impact to deter terrorists from planning
and carrying out future terrorist attacks50 (ie second interpretation of
proportionality). All these approaches have (p. 1200) been tested in state
practice when terrorism was perceived to be state-supported or state-
sponsored.51
Proportionality is gauged differently when the defensive measures do not
target the host state of the terrorist base but rather the non-state actors
operating on the territory of the host state. When the territorial state merely
claims to be willing to root terrorists out of its territory but refuses to act
alone or join forces with the defending states, the territorial state may even
be considered to be an accomplice to the terrorist activities. The sanctuary
state will not be targeted, unless the non-state actors’ actions are
attributable to it.52
The selection of targets depends on the degree of state support,
sponsorship, or passive toleration of the territorial state towards the non-
state actors.53 In the aftermath of the 11 September 2001 attacks, it is
widely accepted that stateless and borderless terrorist organizations
threaten not only the survival of certain states but also international peace
and security. States have therefore claimed that they have the right to
pursue and exercise their inherent right of self-defence against terrorists
wherever the latter may be. Anti-terrorist operations have two
characteristics. First, their geographical scope may be expanded, for
example drone attacks in cross-border operations.54 Nonetheless,
expansion of the geographical scope does not throw the principle of
proportionality out of the picture. Secondly, states may be called upon to
act during a ‘last window of opportunity’—that is, on an early timeline when
non-state actors are at the point of acquiring weapons of mass destruction
(WMD) pre-capability materials,55 developing and weaponizing WMD-
useable material, or preparing plans for the actual use of WMD.56
(p. 1201) Where a territorial state is willing to take action against terrorists
but is unable to do so and its territory continues to be improperly used for a
reasonable time (measured by the threat the situation poses to the
defending state), the defending state may cross the border of the sanctuary
state without its consent and dispatch military units or military drones only
for the sole purpose of eliminating the threat; as soon as the threat is
eliminated, the military units or military drones must leave the foreign
territory. The use of drones is particularly effective when there are
inaccessible or remote areas or there is a need for timely and sufficient
precision to eliminate the target. Furthermore, the use of drones within the
context of cross-border operations limits the scale and the time span of
force employed while affording the defending state more consistent
compliance with the principle of double proportionality as analysed earlier.
Along the same lines, a defending state may employ surgical strikes to
neutralize terrorist cells, destroy terrorist training camps actively engaged in
hostile activities, and to reduce their capacity for planning, organizing, and
conducting future terrorist activities.57 Assessing the use of drones vis-à-vis
other uses of force, Schmitt notes that ‘if targeted drone strikes against
terrorist camps would suffice to damp down further attacks, [then] it would
be unlawful to mount large scale ground operations into the territorial state.
The limitation is equally geographical. It would … be unlawful to deploy
forces into locations void of terrorists or insurgents.’58 Therefore, drone
attacks against Al Qaeda in Pakistan may be deemed permissible as long
as they are treated as self-defensive measures against non-state actors,
they are deemed necessary and specific-target, and they do not inflict
civilian damage.59
In cross-border operations, the proportionality calculation should also take
into account the potential effects/consequences of the defensive response,
that is, the risk of collateral damage on civilians, on the territory of a state
not directly, or not at all, responsible for the threat posed. ‘Measures not
expected to affect the terrorist network and activities cannot be justified as
self-defence as they do not directly contribute to the achievement of the
objective.’60 As Gardam observes, a proportionate action would still have ‘to
be carefully crafted to achieving the destruction of the group concerned,
with the minimum impact on the State concerned, its population and
infrastructure.’61
(p. 1202) Recent practice in anti-terrorist operations has so far indicated
that proportionality is measured in the light of the objective of the defensive
response, as well as the means and methods employed, by taking into
consideration civilian suffering. It has been observed that claims of
excessive use of force in anti-terrorist operations have been put forward
when the use of force was devoid of a defensive nature (in respect to the
purported aim), it lacked a nexus with the temporal limits of self-defence,
and when it inflicted unnecessary suffering on the civilian population and
damage to the civilian infrastructure.62 Perhaps we should admit that
under jus ad bellum proportionality there can never be an absolute or ‘a
very strict limit on self-defence because it is mainly understood as a
prohibition against excesses’. After all, neither the UN nor the ICJ, not even
the UN Secretary General or the International Law Commission or any
other UN-mandated body, have attempted to formulate guidelines on
proportionality. Even though the law of self-defence has been tested
significantly in the light of new security threats, the rule of proportionality is
not yet dead. Proportionality is evolving and adapting to the new security
environment.
VI.  Proportionality and the Use of Force to Protect Human
Rights
Few topics have raised as much controversy and debate in the use of force
area as the issue of the use of force to protect human rights. Taking into
consideration that the Security Council can authorize the use of force when
widespread human rights violations occur,63 and the increasing state
practice and opinio jurisfavouring the use of force to protect human rights
without prior Security Council authorization as part of customary
international law64 (even though the use of force in this regard still
remains (p. 1203) controversial),65 the issue of identifying the principle of
proportionality when the purpose of the use of force is to protect human
rights becomes imminent.
The problems in identifying the principle of proportionality when the
purpose of the use of force is to protect human rights are different from
those in self-defence and in anti-terrorist operations. First, the ICJ in the
jurisprudence referred to previously and in the Caroline case proportionality
was referred to in self-defence only. This is so because traditionally self-
defence has been the only exception to the general prohibition on the use
of force enshrined in Article 2(4) of the UN Charter. Secondly, when the
Security Council authorizes the use of force the question of whether the
states resorting to the use of force have complied with the principle of
proportionality is totally ignored by international lawyers, although action
mandated by a Chapter VII Security Council resolution constitutes another
exception to the general prohibition on the use of force. Thirdly, analysis of
the principle of proportionality for the purposes of protecting human rights
moves from the just war doctrine to the principle of proportionality in jus in
bello, totally ignoring the principle of proportionality from a jus ad
bellum perspective. Although the contribution of the just war doctrine and
the jus in bello in the principle of proportionality is essential, as the first one
refers to the ethical underpinnings of proportionality and the second to the
legality of the conduct of a particular means and method of warfare, the
principle of proportionality from a jus ad bellum perspective determines
whether or not the use of force is legal.
The question whether the principle of proportionality imposes additional
requirements on the means and methods of warfare is not a new one as it
has been tackled several times by international lawyers, but not from a jus
ad bellum perspective. Rather, they choose to construct their argument
either through the jus in bello66 or through the just war doctrine arguing that
it falls within the ethical rather than the legal sphere.67Even the International
Commission on Intervention and State Sovereignty (ICISS) applying the
just war tradition states that ‘military intervention should only be undertaken
when the prospects for success are strong—when the intervention is likely
to do more good than harm.’68 Similarly, the Global Centre for the
Responsibility to Protect applying the just war tradition asks ‘on balance, (p.
1204) would the intervention do more good than harm?’69 This intellectual
strand deals with the Sisyphean task of balancing the ‘good’ versus the
harm that is done or is going to be done. Here, the calculation of
proportionality is based on the risk taken and the harm inflicted.
Accordingly, military measures that carry no risk but result in large-scale
destruction, for example through air strikes or psychological
operations70 which subject the population to mental pressure rather than to
wholesale killing, will be considered disproportionate.
However, the High-Level Panel on Threats, Challenges and Change in its
2004 report suggested five basic criteria of legitimacy when the Security
Council considers whether to authorize the use of military force. Those
criteria of legitimacy are reminiscent of the just war doctrine criteria and
one of those criteria is proportional means. The High-Level Panel under the
title ‘proportional means’ poses the question: ‘Are the scale, duration and
intensity of the proposed military action the minimum necessary to meet the
threat in question?’71 Along similar lines is the Secretary-General’s report ‘In
Larger Freedom’ where he requested ‘the SC to adopt a resolution on the
use of force that sets out the principles for the use of force [and] the need
to consider—when contemplating whether to authorize the use of force…,
whether the military option is proportional to the threat at hand.’72
The Security Council has not yet adopted any resolution on the issue, and
it remains to be seen whether these criteria will become part of customary
international law. Until this is clarified, the question remains as to whether
the High-Level Panel introduced just war criteria in its report, which would
suggest that the principle of proportionality is an ethical rather than a legal
principle, just like the ICISS Report, or whether the High-Level Panel report
transformed just war criteria into legal ones, which would suggest that the
principle of proportionality is a legal principle. The first alternative, however,
seems to be more likely at least for the time being. The 2005 Summit
Outcome Document did not include or suggest any criteria of legitimacy
when the Security Council considers whether to authorize the use of force.
Similarly, the Secretary-General’s 2009 report ‘Implementing the
Responsibility to Protect’ merely stated that ‘member States may want to
consider the principles, rules and doctrine that should guide the application
of coercive force in extreme situations relating to the responsibility to
protect’.73(p. 1205) Subsequent reports by the Secretary-General, namely,
‘Early Warning, Assessment and the Responsibility to Protect’74 and ‘The
Role of Regional and Sub-regional Arrangements in Implementing the
Responsibility to Protect’75 made no reference to these criteria.
Since mainstream analysis on the principle of proportionality ignores the
principle of proportionality from a jus ad bellum perspective as a condition
guiding the application of coercive action, it is imperative to have recourse
to customary international law. Judge Greenwood suggested that the
limitations imposed by the principles of necessity and proportionality in self-
defence would apply mutatis mutandis to any other possible justification for
the use of force,76 obviously with the relevant adjustments. This would
equally apply to the use of force to protect human rights, whether or not
mandated by the Security Council. Building on the principle of
proportionality in self-defence (double proportionality) and applying mutatis
mutandis the principle of proportionality in self-defence, proportionality of
the use of force for the purposes of protecting human rights is measured
against the size and scope of the human rights violations (ie force that is
proportional to the human rights violations—first interpretation of
proportionality) and determines the amount of force that can be used to
achieve the goal (ie force that is proportional to meet the goal—second
interpretation of proportionality).
Therefore, in accordance with the first interpretation of proportionality, the
use of force should be proportionate to the human rights violations
triggering it, which means that only grave human rights violations warrant a
proportionate use of force. This limitation on the use of force is part of a
well-established principle in customary international law and not part of the
legal literature77 or the efforts of certain states to initiate more systematic
discussion on the use of force to protect human rights.78 If the use of force
is authorized by the Security Council, the 2005 UN Summit specifically
stated which human rights violations are considered grave—that is,
genocide, war crimes, ethnic cleansing, and crimes against humanity.79
With regard to the second interpretation of proportionality, the use of force
should also be proportionate to achieve the goal. This means that states
should use (p. 1206) only the amount of force requisite to achieve the goal.
Proportionality is weighted not against the military goal but against the
‘political goal’ of the intervention. The political goal of an intervention the
purpose of which is to protect human rights is to stop human rights
violations, prevent further human rights violations in the territory in which
the states intervene, or even bring to international criminal justice the
perpetrators of war crimes and massive human rights violations with links
to terrorist organizations. Similarly, the political goal of a Security Council-
authorized intervention can be found in the Council resolution authorizing
the use of force. Security Council practice shows that the political goal of
an intervention can be quite broad, as was the case of Libya in 2011, or
more circumscribed, as was the case of Côte d’Ivoire in 2011 and Mali in
2012.80 Sometimes there are controversies over whether the states or
regional arrangements using military force have complied with the Security
Council resolution authorizing the use of force or whether they have
exceeded the mandate.81 Yet, it is suggested that the question whether the
states using force have complied with the Security Council resolution falls
within the analysis of whether the use of force was proportional to the goal
of the intervention; thereby whether the use of force meets the
requirements of proportionality. It can even be argued that the fact that the
Security Council authorized the use of force is indicative of the necessity of
the action and the wording of the resolution delimits or circumscribes the
principle of proportionality in terms of means and methods of warfare.
Therefore, the force used should be proportionate to achieve the goal of
stopping human rights violations and preventing further human rights
violations in the territory in which the states intervene or achieving the goal
specifically referred to in the resolution. Military intervention conducted for
the sake of protecting human rights or averting a humanitarian tragedy
cannot itself rely on military means which provoke a humanitarian tragedy
similar to the original impending tragedy the interventionists sought to
avert. Means and methods of warfare that do not aim to prevent further
human rights violations and anticipate exacerbation of human suffering (eg
the use of air strikes only, flying at high altitude (p. 1207) during air
campaigns, unwillingness to sacrifice one’s own soldiers) may violate the
principle of proportionality.82
This is easier said than done: how does one know which means and
methods of warfare would be appropriate to stop human rights violations in
a particular conflict? Civil conflicts lead to human rights violations and
escalate into international conflicts and certain communities have their
most basic human rights suppressed (including the right to life) and are
violated by the state itself or other factions within the state, in whose
behaviour the state acquiesces or which they cannot control. Finding out
which means are appropriate to stop human rights violations in the
particular conflict is an extremely difficult and complex task and requires in-
depth knowledge of the conflict in question. This suggests that the principle
of proportionality when the use of force is to protect human rights, brings
under its umbrella issues that have long been considered as non-legal,
such as policy considerations and issues of the effectiveness of the
intervention. It can even be suggested that the correct application of the
principle of proportionality, after examining all the relevant factors,
intelligence, and information, will most likely lead to effective interventions.
It is often argued that grave human rights violations are taking place in
Chechnya (Russia), in China, and recently in Syria without the option of the
use of force being considered seriously by states or the Security Council.
However, it seems that the application of the principle of proportionality in
such cases leads to the conclusion that use of force to protect human rights
in those countries would likely not stop human rights violations and
therefore be disproportionate. Indeed, it is difficult to imagine the success
of an intervention if military action were taken against a major power or
against a state which is suggested as having nuclear weapons. The
possible repercussions following a major war, including the use of nuclear
weapons and the involvement of more than one state, the increased
instability that intervention might cause, the damage to the infrastructure of
the target state and to the environment generally, all outweigh such
interventions as disproportionate. The application of the principle of
proportionality may preclude military action against major powers or states
suggested as having nuclear weapons. However, it should be made clear
that military action against military powers is precluded based on
considerations of proportionality and not on any other political
considerations. Hence, the correct application of the principle of
proportionality means that uses of force to protect human rights are
selective by nature.
Since the principle of proportionality is part of the decision-making process,
it is considered in advance of an attack, after analysing all the relevant
information and intelligence. One cannot assess the proportionality of an
activity by its outcome. (p. 1208) Calculations of whether the action is
appropriate in terms of proportionality are often easier ex post facto than
prior to the intervention. If the outcome of the military action did not
manage to stop human rights violations, something which had not been
anticipated, and the means and methods of warfare were appropriate at
that time to achieve the legitimate end, the action will be disproportionate.
Such intervention may be a failed or unsuccessful intervention but is not
disproportionate. Nonetheless, as explained previously, despite the
normative difference between proportionate and successful interventions,
the distinction in practice is not, and should not be, so rigid. In fact, these
two issues seem interrelated.
VII.  Conclusion
Recent state practice and the reaction of the international community to
state practice indicates that proportionality is an intuitive yet complex
concept susceptible to political manoeuvring. We feel that proportionality is
an issue which despite its importance not only in determining the legality of
a use of force, but also in circumscribing the scope of the force and limiting
the destructive impact of armed conflict, has been sidelined by most legal
scholars and international organs such as the ICJ. Proportionality today
remains a rather rhetorical tool within a highly politicized sphere of military
action that fails to take into consideration complexities surrounding each
use of force and each geopolitical environment. For example, civil conflicts
in Africa have turned into international conflicts and vice versa for the past
few decades without being able to specify their duration, identity the actors
and the factions involved or the status of the states involved (ie weak or
failed), and the territories in dispute. In these cases, it can be almost
impossible to gauge the proportionality of actions taken in self-defence.
Also, with regards to the issue of the use of force to protect human rights,
the principle of proportionality attempts to put under its umbrella issues that
have not traditionally been considered as legal, but rather as moral, or
policy, considerations, or issues of the effectiveness of the intervention,
and recently issues as to whether states resorting to the use of force have
complied with the Security Council resolution authorizing the use of force.
To an extent, the principle of proportionality has managed to pull these
issues under its umbrella. However, as Michael Ignatieff said: ‘moral
questions stubbornly resist being reduced to legal ones, and moral
exposure is not eliminated when legal exposure is.’83 We believe that policy
considerations and issues of effectiveness also do so.

Footnotes:
1  UN Charter, Art 2(4).
2  Art 39 and 42.
3  See Art 38(1) of the ICJ Statute for the sources of international law.
4  ‘The Caroline Case’ (1937) 29 British and Foreign State Papers 1137.
5  See eg Elizabeth Sampson, ‘Necessity, Proportionality and Distinction in
Nontraditional Conflicts: The Unfortunate Study of the Goldstone Report’ in
Christopher Ford and Amichai Cohen (eds), Rethinking the Law of Armed
Conflict in an Age of Terrorism (Lanham, MD: Lexington Books, 2011), 195.
6  Customary international law is understood to be based on the ‘the actual
practice and opinio juris of States’ (see Continental Shelf (Libyan Arab
Jamahiriya v. Malta), Judgment of 3 June 1985, ICJ Rep 1985, 29–30, para
27). However, space constraints preclude reference to opinio juris and
state practice from an analytical point of view and will reflect upon them
only briefly.
7  Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ
Rep 1996, 226, 256.
8  Raphaël van Steenberghe, ‘Self-Defence in Response to Attacks by
Non-State Actors in the Light of Recent Practice: A Step Forward?’ (2010)
23 Leiden Journal of International Law 183, 186 fn 6.
9  See the analysis later in the chapter.
10  Military and Paramilitary Activities in and against Nicaragua (Nicaragua
v. US), Merits, Judgment of 27 June 1986, ICJ Rep 1986, 94, para 176.
11  Judith Gardam, Necessity, Proportionality and the Use of Force by
States (Cambridge: Cambridge University Press, 2004), 158.
12  Nuclear Weapons, Advisory Opinion, 245 and esp paras 41–3.
13  Case Concerning Oil Platforms (Iran v. US), Judgment of 6 Nov 2003,
ICJ Rep 2003, para 51.
14  It should be noted that the US and Iran held opposing views as to the
meaning of proportionality. See Theodora Christodoulidou and Kalliopi
Chainoglou, ‘The Principle of Proportionality in Self-Defence and
Humanitarian Intervention’ (2007) 20 Journal of International Law of Peace
and Armed Conflict 79, 80–3.
15  Oil Platforms, Judgment, para 72.
16  Oil Platforms, Judgment, para 77.
17  Case Concerning Armed Activities on the Territory of the Congo (DRC
v. Uganda), Judgment of 19 Dec 2005, ICJ Rep 2005, para 147.
18  Robert Ago, ‘Addendum to the Eighth Report on State
Responsibility’, Yearbook of the International Law Commission, 1980, vol II
(1), A/CN.4/318/ADD.5–7, 60, para 121.
19  Nicaragua, Merits, Dissenting Opinion of Judge Schwebel, paras 211–
14.
20  Nuclear Weapons, Advisory Opinion, Dissenting Opinion of Judge
Higgins, para 5.
21  Armed Activities, Judgment, Separate Opinion of Judge Kooijmans,
paras 33–4.
22  Uganda’s oral pleadings in Armed Activities, Oral Pleadings, Verbatim
Record, 18 Apr 2005, paras 54, 57, 61–7; Iran’s memorial in Oil Platforms,
paras 4.21–4.22; US’s Counter Memorial and Counter-Claim in Oil
Platforms, paras 4.31–4.35 and 5.48; see recently Brazil’s statement at the
Security Council debate concerning the 2011 NATO military action in Libya,
S/PV.6498 (17 Mar 2011). Russia also stated that the said military action
was disproportionate because it exceeded the mandate provided under SC
Res 1973 (2011), Vladimir Radyuhin, ‘Russia condemns NATO’s Tripoli
bombing’, The Hindu, 1 May 2011, available at
<http:www.thehindu.com/news/international/article1983659.ece>.
23  Judith Gardam, ‘Proportionality and Force in International Law’ (1993)
87 American Journal of International Law 403; Christopher Greenwood,
‘Self-Defense and the Conduct of International Armed Conflict’ in Yoram
Dinstein and Mala Tabory (eds), International Law at a Time of Perplexity:
Essays in Honour of Shabtai Rosenne (Dordrecht: Martinus Nijhoff, 1989),
273; Christopher Greenwood, ‘The Relationship between Jus ad
Bellum and Jus in Bello’ (1985) 9 Review of International
Studies 224; Olivier Corten, The Law against War: The Prohibition on the
Use of Force in Contemporary International Law(Oxford: Hart, 2010), 489.
24  The term ‘double proportionality’ was first referred to by Vaughan Lowe,
‘Clear and Present Danger: Responses to Terrorism’ (2005)
54 International and Comparative Law Quarterly 192–3.
25  UK Attorney General Lord Goldsmith, Hansard, HL Deb (21 Apr 2004),
vol 660, col 370,
availableat<http://www.publications.parliament.uk/pa/ld200304/ldhansrd/vo
040421/text/40421-07.htm#40421-07_head0>. A couple of years later
when the UK Parliament was considering the legality of the military
operation in Libya, it was stated that UK forces need to be deployed
‘decisively at the right time but only where key UK national interests are at
stake; where we have a clear strategic aim; where the likely political,
economic and human costs are in proportion to the likely benefits; where
we have a viable exit strategy; and where justifiable under international
law’. See Defence Committee, Ninth Report: Operations in Libya (25 Jan
2012), para 51
<http://www.publications.parliament.uk/pa/cm201012/cmselect/cmdfence/9
50/95005.htm>.
26  The measurability of proportionality is of particular concern with respect
to the use of non-traditional weapons, ie nuclear weapons, drones, etc. See
eg Nuclear Weapons, Advisory Opinion, Dissenting Opinion of Judge
Schwebel.
27  Greenwood, ‘The Relationship between Jus ad Bellum and Jus in
Bello’, 273.
28  The geographical remoteness of self-defence measures in relation to
the original armed attack is a point that has been picked by certain ICJ
judges in their dissenting opinions. See Separate Opinion of Judge Simma
in Oil Platforms, Judgment, and Armed Activities, Judgment, paras 13 and
13–14 respectively. See also Christopher Greenwood, ‘Self-Defence’ in
Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International
Law (Oxford: Oxford University Press, 2012), para 29. For this reason
Greenwood characterizes proportionality as a ‘forward-looking
requirement’; the temporal dimension that Judge Greenwood refers to
concerns the goal the state seeks to achieve.
29  In Nuclear Weapons, Advisory Opinion, the ICJ noted that ‘Respect for
the environment is one of the elements that go to assessing whether an
action is in conformity with the principles of necessity and proportionality’,
para 29.
30  Christopher Greenwood, ‘Jus ad Bellum and Jus in Bell in the Nuclear
Weapons Advisory Opinion’ in Laurence Boisson de Chazournes and
Philippe Sands (eds), International Law, the International Court of Justice
and Nuclear Weapons (Cambridge: Cambridge University Press, 1999),
265.
31  Nuclear Weapons, Advisory Opinion, para 43.
32  Oil Platforms, Judgment, para 74.
33  Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Advisory Opinion, ICJ Rep 2004, Separate Opinion of
Judge Higgins and Judge Kooijmans, paras 35 and 34 respectively.
34  See Sampson, ‘Necessity, Proportionality and Distinction in
Nontraditional Conflicts’. Cf Solon Solomon, ‘The Great Oxymoron: Jus in
Bello Violations as Legitimate Non-Forcible Measures of Self-Defence: The
Post-Disengagement Israeli Measures towards Gaza as a Case Study’
(2010) 9 Chinese Journal of International Law 501, Raphaël van
Steenberghe, ‘Proportionality under Jus ad Bellum and Jus in Bello:
Clarifying their Relationship’ (2012) 45 Israel Law Review 107, 112.
35  See Arts 51(5)(b) and 57(2)(a)(ii), (iii), and (b) of Additional Protocol to
the Geneva Conventions of 1949, and relating to the protection of victims of
international armed conflicts (Protocol I). Even where the principle of
proportionality is not specifically mentioned, it is reflected in many
provisions of Additional Protocol I.
36  See Vaios Koutroulis, ‘Of Occupation, Jus ad Bellum and Jus in Bello:
A Reply to Solon Solomon’s “The Great Oxymoron: Jus in Bello Violations
as Legitimate Non-Forcible Measures of Self-Defense: The Post-
Disengagement Israeli Measures towards Gaza as a Case Study”’ (2011)
10 Chinese Journal of International Law 897, 912 ff.
37  Implementation of GA Res 60/251 of 15 March 2006 entitled ‘Human
Rights Council’, Report of the Commission of Inquiry on Lebanon pursuant
to Human Rights Council Resolution S-2/1, A/HRC/3/2, Human Rights
Council, 3rd Sess, 23 Nov 2006, 23, para 61.
38  Either interpretation of proportionality is difficult to apply within the
context of anticipatory or pre-emptive self-defence. See Christodoulidou
and Chainoglou, ‘The Principle of Proportionality in Self-Defence and
Humanitarian Intervention’, 84–8.
39  In the anticipatory self-defence context, the question is whether
proportionality should be measured against the potential impact of the
expected threat and the harm caused by the threat and the force necessary
to repulse the threat of attack or against the purpose of the defensive
action only. In the pre-emptive self-defence context, proportionality is even
more difficult to measure against the developing threat and/or the impact of
the immaterialized and unimaginable harm.
40  See Marco Roschini, ‘World Wide Warfare Jus ad Bellum and the Use
of Cyberforce’ (2010) 14 Max Planck Yearbook of United Nations Law 85,
114 ff. See also Michael N. Schmitt (ed), Tallinn Manual on the
International Law Applicable to Cyber Warfare (Cambridge: Cambridge
University Press, 2012). Eg a number of cyberattacks on Georgia preceded
the military invasion that took place in 2008. See Eneken Tikki et al, Cyber
attacks against Georgia: Legal Lessons Identified (Tallinn: Cooperative
Cyber Defence Centre of Excellence, 2008).
41  Such an exception is Res 1701 (2006) where Hezbollah was requested
to cease attacks and Israel was called upon to refrain ‘from all offensive
military operations’. Christian Tams and James Devaney, ‘Applying
Necessity and Proportionality to Anti-Terrorist Self-Defence’ (2012)
45 Israel Law Review 97.
42  Sean D. Murphy, ‘The Doctrine of Preemptive Self-Defense’ (2005)
50 Villanova Law Review 735.
43  See eg Judith Gardam, ‘Necessity and Proportionality in Jus ad
Bellum and Jus in Bello’ in Boisson de Chazournes and
Sands, International Law, the International Court of Justice and Nuclear
Weapons, 275, 280.
44  Robert A. Zayac, Jr, ‘United States’ Authority to Legally Implement the
Self-Defence and Anticipatory Doctrines to Eradicate the Threat Posed by
Countries Harbouring Terrorists and Producing Weapons of Mass
Destruction’ (2005) 29 Southern Illinois University Law Journal 452.
45  Oil Platforms, Judgment, paras 71–6.
46  Arend and Beck, International Law and the Use of Force, 165.
47  Gregory F. Intoccia, ‘American Bombing of Libya’ (1987) 19 Case
Western Reserve Journal of International Law 205, 205–6.
48  Guy Roberts, ‘Self-Help in Combating State-Sponsored Terrorism: Self-
Defense and Peacetime Reprisals’ (1987) 19 Case Western Reserve
Journal of International Law 282.
49  Donald W. Greig, International Law (London: Butterworths, 1970), 887.
50  Alberto Coll, ‘Military Responses to Terrorism: The Legal and Moral
Adequacy of Military Responses to Terrorism’ (1987) 81 American Society
International Law Proceedings 299.
51  See generally Richard Erickson, Legitimate Use of Military Force
against State-Sponsored International Terrorism (Fort Belvoir, VA: Maxwell
Air Force Base, Air University Press, 1989).
52  Michael N. Schmitt, ‘Pre-Emptive Strategies in International Law’ (2003)
24 Michigan Journal of International Law 543.
53  eg in the case of Afghanistan, the Taliban had fully harmonized the
state’s operations with Al Qaeda’s operations. In those circumstances it
was considered lawful not only to destroy the infrastructure and the
facilities used by the Taliban, but also to destitute and replace the Taliban
government and prevent any other possible future attack emanating from
the territory of Afghanistan. Michael C. Bonafede, ‘Here, There, and
Everywhere: Assessing the Proportionality Doctrine and US Uses of Force
in Response to Terrorism After the September 11 Attacks’ (2002)
88 Cornell Law Review 203; Barry A. Feinstein, ‘Operation Enduring
Freedom: “Legal Dimensions of an Infinitely Just Operation”’ (2002)
11 Journal of Transnational Law and Policy 280.
54  See Oil Platforms, Counter-memorial and Counter-claim submitted by
the US, 23 June 1997, ICJ Rep 1997, 171, para 4.32; Oscar
Schachter, International Law in Theory and Practice (Dodrecht: Martinus
Nijhoff, 1991), 154.
55  The benefit of ‘last window opportunity’ actions provides states with the
opportunity to surgically eliminate the threat, ie to target the relevant assets
that are the source of the threat and to use limited force for a very short
period. It should be noted, though, that the test of proportionality in these
cases of action within a specific window of opportunity will be influenced by
a balancing-of-costs and a political cost–benefit analysis which would make
a state think twice before exercising its right to self-defence at this specific
time.
56  Judith Gardam, ‘A Role for Proportionality in the War on Terror’ (2005)
74 Nordic Journal of International Law 3, 20–1; Elaine Bunn, ‘Pre-Emptive
Action: When, How, and to What Effect?’ (July 2003) 200 Strategic
Forum 3.
57  Tarcisio Gazzini, The Changing Rules on the Use of Force in
International Law (Manchester: Manchester University Press, 2005), 198.
58  Michael N. Schmitt, ‘Drone Attacks under the Jus ad Bellum and Jus in
Bello: Clearing the “Fog of Law”’ (2011) Yearbook of International
Humanitarian Law 313, 317.
59  Andrew Orr, ‘Unmanned, Unprecedented and Unsolved. The Status of
American Drone Strikes in Pakistan under International Law’ (2011)
44 Cornell International Law Journal 729, 738: ‘The fact that the drone
strikes continue to target specific individual fighters (rather than, say, entire
villages), however, suggests that their goal is limited to the elimination of
ongoing threats to the United States. Such a goal would be ad
bellum proportionate, but the unavailability of relevant facts precludes a
conclusive legal analysis’.
60  Gazzini, The Changing Rules on the Use of Force in International Law,
198.
61  Gardam, ‘A Role for Proportionality in the War on Terror’, 17.
62  This was the case with the Israel–Lebanon war in 2006. See Robert
Barnidge, ‘The Principle of Proportionality under International Humanitarian
Law and Operation Cast Lead’ in William C. Banks (ed), New
Battlefields/Old Laws (New York: Columbia University Press, 2011), 171.
63  This has been a well-established practice of the Security Council since
the 1990s (eg SC Res 794 in Somalia, 929 in Rwanda, 816 and 836 in
Bosnia). Any remaining doubts as to whether the Security Council can
authorize the use of force to protect human rights were removed by the
2005 World Summit Outcome which introduced the principle of the
‘responsibility to protect’ (A/60/L.1, para 139) (‘we are prepared to take
collective action in timely and decisive manner, through the Security
Council, in accordance with the Charter, including Chapter VII, on a case-
by-case basis … [when] national authorities manifestly fail to protect their
populations from genocide, war crimes, ethnic cleansing and crimes
against humanity’). The General Assembly adopted the Summit Outcome
in GA Res A/RES/60/1.
64  Theodora Christodoulidou, The Use of Force and the Promotion and
Protection of Human Rights (Athens: Ant. N. Sakkoulas and Bruylant,
2008).
65  Carlo Focarelli, ‘The Responsibility to Protect Doctrine and
Humanitarian Intervention: Too Many Ambiguities for a Working Doctrine’
(2008) 13 Journal of Conflict and Security Law 191.
66  Michael Bothe, ‘The Protection of the Civilian Population and NATO
Bombing on Yugoslavia: Comments on a Report to the Prosecutor of the
ICTY’ (2001) 12 European Journal of International Law 535; Independent
International Commission on Kosovo, The Kosovo Report: Conflict,
International Response, Lessons Learned(New York: Oxford University
Press, 2000), 179 and 195.
67  See John F. Murphy, ‘Some Legal (And a Few Ethical) Dimensions of
the Collateral Damage Resulting from NATO’s Kosovo Campaign’ (2001)
31 Israel Yearbook on Human Rights 76–7; Nicholas J. Wheeler, ‘Dying for
‘Enduring Freedom’: Accepting Responsibility for Civilian Casualties in the
War against Terrorism’ (2002) 16 International Relations 218.
68  Report of the International Commission on Intervention and State
Sovereignty, The Responsibility to Protect (Ottawa: International
Development Research Centre, 2001), 142.
69  Global Centre for the Responsibility to Protect, ‘The Georgia–Russia
Crisis and the Responsibility to Protect: Background Note’, 19 Aug 2008, 2.
70  On this issue, see Kalliopi Chainoglou, ‘Psychological Warfare’ in
Wolfrum, Max Planck Encyclopedia of Public International Law, vol VIII,
559–64.
71  Report of the High-Level Panel on Threats, Challenges and Change, ‘A
More Secure World: Our Shared Responsibility’, A/59/565 (2004), paras
207–8.
72  Report of the Secretary-General, ‘In Larger Freedom: Towards
Development, Security and Human Rights for All’, A/59/2005 (2005), 58.
73  Report of the Secretary-General, ‘Implementing the Responsibility to
Protect’, A/63/677 (2009), para 62.
74  Report of the Secretary-General, ‘Early Warning, Assessment and the
Responsibility to Protect’, A/64/864 (2010).
75  Report of the Secretary-General, ‘The Role of Regional and Sub-
Regional Arrangements in Implementing the Responsibility to Protect’,
A/65/877–S/2011/393 (2011).
76  Greenwood, ‘Self-Defense and the Conduct of International Armed
Conflict’ in Dinstein and Tabory, International Law at a Time of Perplexity,
274 fn 9.
77  In the legal literature, see Antonio Cassese, ‘Ex Iniuria Ius Oritur: Are
We Moving Towards International Legitimation of Forcible Humanitarian
Countermeasures in the World Community?’ (1999) 10 European Journal
of International Law 23.
78  See eg the Danish Institute of International Affairs, Humanitarian
Intervention: Legal and Political Aspects(Copenhagen: Danish Institute of
International Affairs, 1999).
79  World Summit Outcome Document (2005), para 139.
80  In the case of Libya, see SC Res 1973 (2011), para 4 where it is stated
that the Security Council ‘authorizes member states … to use all necessary
measures … to protect civilians and civilian populated areas under threat
of attack in the Libyan Arab Jamahiriya including Benghazi’. In the case of
Côte d’Ivoire the use of force extended only to ‘protect civilians
under imminent threat of physical violence.’ SC Res 1975 (2011), para 6. In
the case of Mali, see SC Res 2085 (2012), para 19 where the Security
Council ‘decides to authorize the deployment of an African-led International
Support Mission in Mali (AFISMA) … to support the Malian authorities in
their primary responsibility to protect the population’ (para 9), and ‘calls
upon AFISMA, … to bring to justice perpetrators of serious human rights
abuses and violations of international humanitarian law in Mali’ (para 19).
81  Concerning the recent conflicts in Libya and Côte d‘Ivoire, see Christian
Henderson, ‘International Measures for the Protection of Civilians in Libya
and Côte d’Ivoire’ (2011) 60 International and Comparative Law
Quarterly 767; Alex J. Bellamy and Paul D. Williams, ‘The New Politics of
Protection? Côte d’Ivoire, Libya and the Responsibility to Protect’ (2011)
87 International Affairs 825, 845–6.
82  For an analysis of the application of the principle of proportionality in
the humanitarian intervention in Kosovo, see Christodoulidou, The Use of
Force and the Promotion and Protection of Human Rights, 256–62.
83  Michael Ignatieff, Virtual War: Kosovo and Beyond (London: Chatto &
Windus), 199.