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Humanitarian Law
Copyright © 2021. Oxford University Press USA - OSO. All rights reserved.
Cohen, Amichai, and David Zlotogorski. Proportionality in International Humanitarian Law : Consequences, Precautions, and
THE LIEBER STUDIES
Professor & Head, Department of Law, Co-Director of the Lieber Institute for
Law and Land Warfare
Colonel Shane Reeves
Professor & Co-Director of the Lieber Institute for Law and Land Warfare
Professor Sean Watts
Francis Lieber Distinguished Scholar
Professor Michael Schmitt
Board of Advisors
Honorable John Bellinger
Lieutenant General (ret.) Dana Chipman
Sir Christopher Greenwood
Sir Adam Roberts
Professor Gary Solis
Dr. Wolf von Heinegg
Senior Fellows
Professor Laurie Blank
Major General (ret.) Blaise Cathcart
Professor Robert Chesney
Professor Geof Corn
Professor Ashley Deeks
Brigadier General (ret.) Richard Gross
Colonel (ret.) Richard Jackson
Professor Chris Jenks

Professor Eric Talbot Jensen
Colonel (ret.) Michael Lacey
Professor Naz Modirzadeh
Professor Beth Van Schaack
Professor Matthew Waxman
Tis is not an ofcial publication of the United States Military Academy,
Department of the Army, or Department of Defense. Te views expressed in this
volume represent the authors’ personal views and do not necessarily refect those
of the Department of Defense, the United States Army, the United States Military
Academy, or any other department or agency of the United States government.
Te analysis presented stems from their academic research of publicly available
sources, not from protected operational information.
Te Lieber Studies is one of the two fagship publications of the Lieber Institute
for Law and Land Warfare. It is designed to provide scholars, practitioners, and
students with in-depth and critical analysis of the most challenging legal issues re-
lated to warfare in the 21st Century. Established by the Department of Law of the
United States Military Academy at West Point, the mission of the Lieber Institute
is to foster a deeper understanding of the complex and evolving relationship be-
tween law and land warfare in order to educate and empower current and future
combat leaders. It does so through global academic engagement and advanced in-
terdisciplinary research. As such, it lies at the crossroads of scholarship and prac-
tice by bringing together scholars, military ofcers, government legal advisors,
and members of civil society from around the world to collaboratively examine
the role and application of the law of armed confict in current and future armed
conficts, as well as that of other regimes of international law in situations threat-
ening international peace and security.
Lieber Institute for Law and Land Warfare
The Lieber Studies
V olume 6
Humanitarian Law
Consequences, Precautions, and Procedures
General Editor
Professor Michael N. Schmitt
Managing Editors
Colonel Shane R. Reeves
Colonel Winston S. Williams
Dr. Sasha Radin
Authors
Amichai Cohen
David Zlotogorski
1
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objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a
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You must not circulate this work in any other form

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Library of Congress Cataloging-in-Publication Data

Names: Cohen, Amichai, author. | Zlotogorski, David, author.
Title: Proportionality in international humanitarian law : consequences,
precautions, and procedures /Amichai Cohen & David Zlotogorski.
Description: New York, NY : Oxford University Press, [2020] |
Includesbibliographical references and index.
Identifers: LCCN 2020044178 | ISBN 9780197556726 (hardcover) |
ISBN 9780197556740 (epub) | ISBN 9780197556733 (updf) | ISBN 9780197556757 (online)
Subjects: LCSH: Humanitarian law. | Proportionality in law.
Classifcation: LCC KZ6471 .C64 2020 | DDC 341.6/7—dc23
LC record available at https://lccn.loc.gov/2020044178
DOI: 10.1093/oso/9780197556726.001.0001
9 8 7 6 5 4 3 2 1
Printed by Integrated Books International, United States of America
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CONTENTS
Preface xi
Table of Treaties and Cases xiii
PART I: General Concepts

1. An Introduction to Proportionality 3
A. General Concepts 3
B. Legal Sources 8
C. Te Structure of the Book 9
2. Ethical and Constitutional Foundations 11

A. Te Possible Sources for Proportionality 11
B. A Philosophical and Religious Prism of Proportionality 12
Premodern Views of Proportionality 12
Te Philosophical Background 14
C. Te Rational Analysis of Proportionality 16
Rational Reciprocal Explanation 16
D. Proportionality as a Mode of Control 18
E. Te Constitutional and Administrative Background to Proportionality
Analysis 21
3. A General Overview of Proportionality in IHL 23

A. Te History and Development of IHL Proportionality 23
B. Contemporary IHL and Proportionality 29

C. Te Changing Nature of Armed Confict and Proportionality 33
Applying Proportionality: Examples and Dilemmas 35
Fighting Non-State Actors and the Application of the Principle of
Proportionality 39
Parallel Application of IHL and International Human Rights Law 44
Te Right to Life during Armed Conficts 48
Diferent Balances of IHL/HRL in Diferent Types of Armed
Conficts? 50
D. Conclusion 55
PART II: Te Practical Application of Proportionality

4. Military Advantage 59
A. What Constitutes a Military Advantage? 60
B. Military Advantage of an Attack 65
viii C ontents
5. Incidental Harm and the Analysis of Proportionality 73

A. Civilians or All Persons Protected from Attack 73
B. What Constitutes Harm? 78
Harm to the Person 78
Economic Damage 80
Civilian Objects 81
Damage to the Natural Environment 81
Beneftting from Proportional Harm 83
C. Indirect and Reverberating Efects 83
Foreseeable Harm 84
Causality 87
D. Level of Expectation/Anticipation 88
E. A Balancing Act: What Constitutes a Violation? 92
Diferent Standards in Diferent Conficts? 99
Excessive vs. Extensive: An Upper Limit to Civilian Harm? 100
F. From Whose Perspective Should Proportionality Be Examined? 101
6. Soldiers vs. Civilians 107

A. Te Basic Dilemma 107
B. Te Kasher vs. Walzer Debate 108
C. Te Lives of Soldiers and Proportionality 110
D. Te Context of Force Protection 114
E. Te Enemy’s Soldiers 117
7. Strategic and Cultural Considerations 119

A. Te Meaning of “Concrete and Direct Military Advantage” 120
B. Policy Arguments Regarding Strategic and Cultural Considerations 121
Te Divide between IHL and Laws on the Use of Force 121
An Inherent or Tangible Military Advantage? 122
Uncertainty and Manipulations 123
C. Who Bears the Burden of Accommodating a State’s Sensitivities? 125

A Matter of Context? 126
Permitting Less Collateral Damage? 127
D. Diferent Requirements for Diferent States? 128
E. Te Futility of Force, Deterrence, and Proportionality 131
8. Direct Participation in Hostilities and Its Efect on Proportionality 135

A. Te Concept of Direct Participation in Hostilities 135
B. Te Defnition of Direct Participation in Hostilities 139
9. Human Shields and Proportionality 145

A. Te Problem of Human Shields 145
B. Involuntary Human Shields 147
C ontents ix
C. Voluntary Human Shields 149

D. Discerning Choice 150
10. Te Principle of Distinction and Its Relation to Proportionality 155

A. Te Defnition of Military Objectives and Its Relation to
Proportionality 155
B. Indiscriminate Attacks 159
Protection of Cultural Property 165
PART III: Understanding Proportionality

11. Te Vagueness of Proportionality 169
A. Experimental Meanings of Proportionality 169
B. Te Formula of Proportionality 171
C. Rules of Tumb 174
D. Inherent Vagueness? 175
12. Procedural Aspects of Proportionality 177

A. Te Legal Background 178
B. Procedures 179
C. Te Suitable Decision-Maker 181
Doubts 187
D. How Much Intelligence Is Necessary? 189
E. Warnings 194
Roof Knocking 196
F. What Is the Role of Military Legal Advisors? 197
G. Conclusion 199
Creating a Zone of Reasonableness 199
Responsibility and Control 199
Organization and Culture 200
13. Judicial Review and Investigations 201

A. Introduction 201
B. Ex Ante Review 201
C. Ex Post Review: Te Problem with the Criminal Approach 203
Criminal Investigations 204
Te Problem with Criminal Investigations 205
Should Criminal Prosecutions Be Forsaken? 212
D. Ex Post Assessment: An Alternative to Criminal Trials 214
Te Non-Exclusive Nature of the Grave Breaches Regime
under IHL 215
E. Te Saleh Shehadeh Targeted Killing 220
x C ontents
14. Te Future of Proportionality 223

A. On the Future of Proportionality 224
Image-Fare 224
Cyber Warfare and Proportionality 225
Autonomous Weapons and Proportionality 226
Conclusion—A Way Forward? 231
Bibliography 233
Index 247
PREFACE
Tis book aims to clarify the current debates regarding the concept of proportion-
ality in international humanitarian law (IHL).
Almost all states involved in armed conficts recognize the principle of pro-
portionality in IHL as a legal and ethical restraint on their military activities.
Specifcally, it is broadly accepted that an attacking party cannot justify collat-
eral damage to civilians if the harm caused is expected to be excessive with re-
gard to the concrete military advantage gained. However, the precise meaning
of this principle is frequently disputed. Tere are debates over many issues, in-
cluding the degree to which force-protection measures can justify extensive
collateral damage; the obligation to employ accurate but expensive weaponry;
and the impact of using voluntary and non-voluntary human shields. Tere are
also disagreements concerning the parameters that are supposed to be used in
assessing such a case: What exactly is a “military advantage,” and what does it
mean for the harm caused to “exceed” such an advantage?
Controversy is especially rife regarding asymmetrical conficts. Many states,
among them many democracies, are engaged in armed conficts against non-state
actors, some of them terrorist organizations. In these situations, questions relating
to the correct interpretation and efective implementation of the principle of pro-
portionality have arisen, for example, in connection with targeted killings and
military operations in civilian areas.
Te goal of this book is to shine a light on these controversies; to clarify the
areas in which there is disagreement; and in some cases, to ofer unorthodox
points of view on these debates.
Te background for the book is an international conference entitled
“Proportionality and Civilian Casualties in Asymmetrical Armed Conficts:
An Interdisciplinary Approach.” Te conference was convened by the National
Security and Democracy Center at the Israel Democracy Institute and by the
Konrad-Adenauer-Stifung, and took place at the Israel Democracy Institute in
Jerusalem in May 2016.
Te purpose of the conference was to evaluate the applicability and parameters
of the principle of proportionality with regard to liberal states involved in asym-
metrical conficts. Te premise was that a full understanding of the proportion-
ality principle cannot be gained through exclusive use of a legal perspective. Te
xii P reface
principle of proportionality is at once a philosophical principle, a political neces-

sity, and a restriction on military operations; thus, it is both a theoretical con-
cept and a practical tool. As a result, a worthwhile discussion of the underlying
reasoning, efects, and parameters of the proportionality principle must be mul-
tidisciplinary in character. Hence, the conference included scholars from diverse
academic felds, such as law, philosophy, and political science, as well as varied
practitioners: current and former military commanders, representatives of NGOs,
and civilians.
Te discussions held at the conference gave us the initial impetus to embark on
this book project, and the conference participants provided us with many inter-
esting and novel points of view on the subject. Most of the material in the book is
based on research undertaken by the authors following the conference. However,
there are a few cases in which an original position was presented at the conference,
without it being based on a publicly available source. On these rare occasions, we
simply cite it as an “opinion presented at the Proportionality Conference.”
Te result is a book that aims to present many, perhaps most, of the current
positions and debates regarding the application of the principle of proportion-
ality. We believe that this work will be of use both to academics with an interest
in these issues, and to practitioners, such as military legal advisers and judges. We
believe that there are, in David Luban’s terms, at least two “cultures” of propor-
tionality: that of the academics, and that of the practitioners.1 An important goal
of this work is to bridge this gap, at least to some degree.
We would like to thank the Israel Democracy Institute’s National Security and
Democracy Center and the Konrad-Adenauer-Stifung for their generous fnancial
support, both for the conference and for further work on this book. Dr. Michael
Borchard of the Konrad-Adenauer-Stifung and Professor Mordechai Kremnitzer,
then vice president of the Israel Democracy Institute (IDI), were a constant source
of support and wisdom. Professor Yuval Shany, current vice president of IDI,
provided many important comments on earlier drafs. Mr. Yochanan Plesner,
IDI president, supported the project from beginning to end. Special thanks to
Dr. Dina Wyshogrod for tireless hours of help and support in her work on the
various drafs of this book. We are especially grateful to all the participants in the
conference, who invested much time and efort in clarifying concepts and in de-
bating the issues covered in this book.
David Zlotogorski would particularly like to thank Mr. Tal Mimran for all his
valuable guidance and advice throughout the journey and Mr. Ori Pomson for his
expertise and unfagging assistance.
Amichai Cohen would also like to thank the Faculty of Law at the Ono
Academic College, and especially Deans Yuval Elbashan and Elad Finkelstein for
their support and encouragement during the work on this book.
Financial support for this book was provided by ERC Grant No. 324182.
1. David Luban, Military Necessity and the Cultures of Military Law, 26(2) Leiden J. Int’l L.
315 (2013).
TABLE OF TREATIES AND CASES
CONVENTIONS AND TREATIES

Adjutant Gen.’s Ofce, U.S. War Dep’t, Instructions for the Government of
Armies of the United States in the Field, Gen. Ord. No. 100, Apr. 24,
1863 (Lieber Code)��9, 23–24, 23 n.4, 24 n.5
St. Petersburg Declaration Renouncing the Use in Time of War of
Explosive Projectiles under 400 Grammes Weight, Dec. 11, 1868,
138 C.T.S. 297�� 24, 24 nn.8–9
Te Hague Convention (IV) Respecting the Laws and Customs of War on
Land, Annexed Regulations, 1907, 205 C.T.S. 277�� 24 n.9, 25, 30 n.38,
135 n.1, 194 n.64
Protection of Civilian Populations against Bombing from the Air in Case
of War, September 30, 1938, Resolution of the League of Nations
Assembly, O.J. Spec. Supp. 182, at 16�� 26 n.19
Charter of the United Nations, Oct. 24, 1945, art. 2(4)
1 U.N.T.S. XVI�� 3 n.1, 15
Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949,
75 U.N.T.S. 31 (GC-I)��28, 33 n.54, 34 n.55, 45, 74, 74 n.4,
136 n.1, 137 n.8, 145, 145 n.3, 204, 204 n.9,
204 n.13, 207, 207 n.24, 211, 215, 215 n.59
Geneva Convention for the Amelioration of the Condition of Wounded,
Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12,
1949, 75 U.N.T.S. 85 (GC-II)�� 28, 33 n.54, 34 n.55, 45, 133 n.1, 137 n.8,
145, 204, 204 n.9, 204 n.13, 207, 207 n.24,
211, 215, 215 n.59
Geneva Convention Relative to the Treatment of Prisoners of War of
August 12, 1949, 75 U.N.T.S. 135 (GC-III)�� 28, 33 n.54, 34 n.55,
45, 73–75, 73 n.1, 135 n.1, 136, 136 n.5, 137 n.8, 145,
146 n.5, 204, 204 n.9, 204 n.13, 207,
207 n.24, 211, 215, 215 n.59
xiv TA B L E O F T R E AT I E S A N D C A S E S
Geneva Convention Relative to the Protection of Civilian Persons in Times

of War of August 12, 1949, 75 U.N.T.S. 287 (GC-IV)��28, 33 n.54, 34
n.55, 41 n.78, 45, 77 nn.16–17, 137 n.8, 145,
145 n.3, 204, 204 n.9, 204 n.13, 207,
207 n.24, 211, 215, 215 n.59
European Convention for the Protection of Human Rights and
Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221 ��21, 48 n.102, 207
Hague Convention for the Protection of Cultural Property in the Event of
Armed Confict, May 14, 1954, 249 U.N.T.S 358��165, 165 n.38
Protocol Additional to the Geneva Conventions of 12 August 1949,
and Relating to the Protection of Victims of International Armed
Conficts, June 8, 1977, 1125 U.N.T.S. 3 (AP-I)�� 5 n.11, 8–9, 8 nn.24–27,
29–30, 30 nn.37–38, 32–34, 41 n.78, 44 nn.89–90, 60, 62,
62 n.16, 62 n.18, 65–66, 65 n.35, 65 n.38, 68 n.56, 71 n.68,
73 n.1, 75, 76 n.14, 78, 78 n.23, 80–81, 81 n.38, 85 nn.56–57,
89 n.74, 90 n.79, 93, 117, 135 n.1, 136–38, 136 n.5, 135 n.8,
139 n.9, 144, 144 n.31, 145–47, 145 n.3, 147 n.9, 150 n.21,
151 n.27, 155, 155 n.1, 157, 159–161, 159 n.19, 159 n.21,
165, 165 n.39, 174, 178, 178 n.3, 185 n.23, 186–87, 189–90,
190 n.45, 194–95, 197, 197 n.68, 201, 204 n.11, 206,
206 n.19, 212–16, 212 n.46, 213 n.49, 216 n.60, 227 n.13
Protocol Additional to the Geneva Conventions of 12 August 1949, and
Relating to the Protection of Victims of Non–International Armed
Conficts, June 8, 1977, 1125 U.N.T.S. 609 (AP-II) �� 34, 137 n.8,
138, 150 n.21
Convention on Prohibitions or Restrictions on the Use of Certain
Conventional Weapons Which May be Deemed to be Excessively
Injurious or to have Indiscriminate Efects, Oct. 10, 1980, 1342
U.N.T.S. 137�� 8, 8 n.28, 34 n.57
Protocol on Prohibitions or Restrictions on the Use of Mines,
Booby-Traps and Other Devices (Protocol II), Geneva, Oct. 10,

1980, 1342 U.N.T.S. 168�� 8 n.28, 34 n.57
Convention of the Right of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3�� 41 n.78
Statute of the International Criminal Tribunal for Former Yugoslavia,
May 25, 1993, U.N. Doc. S/RES/827 (ICTY Statute)�� 205 n.16
Statute for the International Criminal Tribunal for Rwanda,
Nov. 8, 1994, U.N. Doc. S/RES/955 (ICTR Statute)�� 205 n.16
Protocol on Prohibitions or Restrictions on the Use of Mines,
Booby Traps and Other Devices (Protocol II), as amended,
May 3, 1996, 35 I.L.M. 1206 �� 8 n.29
Te International Covenant on Civil and Political Rights, Dec. 19, 1966,
999 U.N.T.S. 171�� 45 n.95, 46–49, 46 n.96, 49 n.107, 207
Rome Statute of the International Criminal Court, Jul. 17, 1998, 2187
U.N.T.S. 90 (Rome Statute)��9, 9 n.30, 63, 67, 67 n.53, 81, 81 n.39, 95,
102, 121, 149, 149 n.17, 189, 193 n.53, 204 n.8, 205 n.16
TA B L E O F T R E AT I E S A N D C A S E S xv
Second Optional Protocol to the 1954 Hague Convention for the

Protection of Cultural Property in the Event of Armed Confict,
Mar. 26, 1999, 2252 U.N.T.S. 172��165, 165 n.40
Protocol on the Involvement of Children in Armed Confict,
May 25, 2000, G.A. Res. 263, U.N. GAOR, 54th sess.,
annex I, U.N. Doc. A/54/263�� 41 n.78
NATIONAL LEGISLATION
Foreign Intelligence Surveillance Act (FISA) (1978) 92 Stat. 1783�� 201 n.1
INTERNATIONAL COURT OF JUSTICE - CONTENTIOUS CASES

AND ADVISORY OPINIONS
Case Concerning Military and Paramilitary Activities in and against
Nicaragua (Nicar. v. U.S.A), Merits, [1986] I.C.J. 14�� 3 n.1
Legality of the Treat or Use of Nuclear Weapons, Advisory Opinion,
[1996] I.C.J. 8�� 4 n.5, 46–47, 47 n.98, 83, 83 n.46, 100,
100 n.12, 122, 159 n.21
Case Concerning Oil Platforms (Iran v. U.S.A), Merits, [2003] I.C.J. 161 �� 3 n.1
Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Advisory Opinion, [2004] I.C.J. 136�� 47 n.99
Case Concerning Armed Activities on the Territory of the Congo
(Dem. Rep. Congo v. Uganda), Judgment, [2005] I.C.J. 168�� 3 n.1
INTERNATIONAL CRIMINAL TRIBUNAL FOR FORMER

YUGOSLAVIA (ICTY)
Prosecutor v. Tadić, ICTY Appeals Chamber, IT-94-1-AR72,
Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction (Oct. 2, 1995)�� 34 n.55

Prosecutor v. Kupreskić, ICTY Trial Chamber, IT-95-16, Judgment
(Jan. 14, 2000)�� 9 n.31, 44, 44 n.88, 93, 93 n.94, 93 n.95
Prosecutor v. Blaskić, ICTY Trial Chamber, IT-95-14-T, Judgment
(Mar. 3, 2000) ��98, 98 n.116, 161, 161 n.25
Prosecutor v Delalić (“Čelebići”), ICTY Appeals Chamber,
IT-96-21-T, Judgment (Feb. 20, 2001) �� 213 n.50
Prosecutor v. Galić, ICTY Trial Chamber, IT-98-29, Judgment
(Dec. 5, 2003) �� 31, 31 n.42, 93, 93 n.93, 97, 97 n.111, 102, 102 n.130,
160 n.22, 188 n.35, 192, 192 n.50, 204 n.12
Prosecutor v. Kordić & Čerkez, ICTY Appeals Chamber,
IT-95-14/2, Judgment (Dec. 17, 2004)�� 31, 31 n.45
Prosecutor v. Blagojević, ICTY Trial Chamber, IT-02-60-T, Judgment
(Jan. 17, 2005)�� 74, 74 n.3
xvi TA B L E O F T R E AT I E S A N D C A S E S
Prosecutor v. Limaj, ICTY Trial Chamber II, IT-03-66, Judgment

(Nov. 30, 2005) �� 34 n.55
Prosecutor v. Galić, ICTY Appeals Chamber, IT-98-29-A,
Judgment (November 30, 2006) ��212, 212 n.44, 212 n.45
Prosecutor v. Martić, ICTY Trial Chamber I, IT-95-11-T, Judgment
(June 12, 2007) ��160, 160 n.24
Prosecutor v. Halilović, ICTY Appeals Chamber, IT-01-48-A,
Judgment (Oct. 16, 2007)�� 213 n.50
Prosecutor v. Boškoski, ICTY Trial Chamber II, IT-04-82-T,
Judgment (Jul. 10, 2008)�� 34 n.55, 213 n.51
Prosecutor v. Gotovina, ICTY Trial Chamber I, IT-06-90-T,
Judgment (Apr. 15, 2011)�� 97, 97 nn.112–13, 204 n.12
Prosecutor v. Gotovina, ICTY Appeals Chamber, IT-06-90-A,
Judgment, (Nov. 16, 2012)��98, 98 n.115, 211, 211 n.43
Proscutor v. Prlić, ICTY Trial Chamber, IT-04-74-T, Judgment
(May 9, 2013)��78 n.26, 82 n.49, 99, 99 n.118, 161, 161 n.27,
211, 211 n.39, 211 n.41
Prosecutor v. Karadzić, ICTY Trial Chamber, IT-95-5/18-T,
Judgment (Mar. 24, 2016)��99, 99 n.119, 161, 161 n.28
Prosecutor v. Prlić, ICTY Appeals Chamber, IT-04-74-A, Judgment
(Nov. 29, 2017) �� 77–78, 78 n.26, 99 n.118, 161 n.27, 211, 211 n.42
EUROPEAN COURT OF HUMAN RIGHTS

Lawless v. Ireland, E.Ct.H.R., App. No. 332/57 (1961)�� 46 n.95
McCann v. United Kingdom, E.Ct.H.R., App. No. 18984/91 (1995)�� 48 n.103,
189 n.38
Isayeva v. Russia, E.Ct.H.R., App. No. 57947-49/00 (2005)��207, 207 n.28
Bazorkina v. Russia, E.Ct.H.R., App. No. 69481/01 (2006)�� 207 n.29
Khatsiyeva v. Russia, E.Ct.H.R., App. No. 5108/02 (2008)��48–49, 49 nn.105–6
A. v. U.K., E.Ct.H.R., App. No. 3455/05 (2009)�� 46 n.95

Abuyeva v. Russia, E.Ct.H.R., App. No. 27065/05 (2010)�� 207 n.29
Al Skeini v. U.K., E.Ct.H.R., App. No. 55721/07 ECHR (2011)��207, 207 n.30
Jaloud v. Te Netherlands, E.Ct.H.R., App. No. 47708/08 (2014)�� 208 n.33
US MILITARY TRIBUNAL NUREMBERG

US Military Tribunal Nuremberg, Judgment of October 27, 1948,
in Law Reports of Trials of War Criminals, Selected and Prepared
by the United Nations War Crimes Commission, Vol. XII Te
German High Command Trial, London: United Nations War
Crimes Commission, 1949 �� 146 n.6
TA B L E O F T R E AT I E S A N D C A S E S xvii
INTER-A MERICAN COURT OF HUMAN RIGHTS

Rodriguez v. Honduras, Inter-Am.Ct.H.R. (Ser. C) No. 4 (1988)�� 204 n.10,
207 n.25
SPECIAL COURT FOR SIERRA LEONE

Prosecutor v. Sesay, Trials Chamber I, SCSL-04-15-T (Mar. 2, 2009)�� 143 n.30
ETHIOPIA-E RITREA CLAIMS COMMISSION

Western Front, Aerial Bombardment and Related Claims—Eritrea’s Claims
1, 3, 5, 9-13, 14, 21, 25 & 26 (Eritrea v. Ethiopia), Partial Award
(Dec. 19, 2005) �� 159 n.17
JUDGMENTS OF NATIONAL COURTS

COLOMBIA
Constitutional Case No. C-291/07, Te Plenary Chamber of Colombia’s
Constitutional Court (Apr. 25, 2007)�� 159 n.21
GERMANY
1 BvR 357/07 Dr. H v. §14.3. of the Aviation Security Act
(Feb. 15, 2006)�� 50 n.108
Federal Court of Justice, Fuel Tankers case, Federal Prosecutor
General Decision (April 16, 2010)�� 92, 208–9, 209 n.34
BGH, Urteil, III ZR 140/15 (Oct. 6, 2016) �� 92 n.91
ISRAEL
HCJ 2056/04, Beit Sourik Village Council v. Te Government of Israel,
58(5) PD 807 (2004)�� 29 n.33, 32 n.50, 203, 203 n.6
HCJ 7957/04, Mara’abe v. Te Prime Minister of Israel, PD 60(2)
477 (2005) �� 32 n.50
HCJ 3799/02, Adalah (Legal Center for Arab Minority Rights in Israel)
v. IDF Commander of the Central Region, PD 60(3) 67 (2005) �� 152 n.32
HCJ 769/02, Public Committee against Torture v. Te State of Israel,
PD 62(1) 507 (2006)�� 6 n.13, 89 n.75, 140 n.16, 150 n.23, 203 n.8, 216
HCJ 8794/03, Hass v. Te Military Advocate General
(Published in Nevo, Dec. 23, 2008)�� 220 n.80
HCJ 3292/07, Adallah v. Attorney General (Published in Nevo,
Dec. 8, 2011)�� 217 n.63
xviii TA B L E O F T R E AT I E S A N D C A S E S
HCJ 3003/18, Yesh Din –Volunteers for Human Rights v. Te IDF

Chief of Staf (Published in Nevo, May 24, 2018) �� 54 n.123, 141 n.16
JAPAN
Shimoda v. Te State, 8 Jap. Ann. I’ntl L. 212 (1964) �� 25 n.14, 100 n.121
UNITED KINGDOM
Ali Zaki Mousa v. Secretary of Defence [2010] EWHC 3304 �� 219 n.77
PART I
General Concepts
T his part of the book presents the general concept of proportionality

in IHL. We begin this section with two chapters in which the general
principle of proportionality is explained, and the historical and legal
development of this principle is reviewed.
1
An Introduction to Proportionality
A. GENERAL CONCEPTS
Tere are few concepts in international law that both captivate the mind and stir
bitter debates as much as the application of the principle of proportionality in con-
temporary armed confict. As conficts are increasingly fought in urban settings, the
concept of proportionality plays a crucial role in the protection of civilians from the
horrors of war. Tis book is a study of proportionality as it is currently understood
in the laws of armed confict—also known as international humanitarian law (IHL).1
Te principle of proportionality is one of the cornerstones of IHL together with
the other basic principles of: distinction between civilians and combatants, the
prohibition of inficting unnecessary sufering, the notion of military necessity,
and the principle of humanity.2 Although proportionality is notoriously opaque
and can seem a topic for theoreticians, the real-world impact of this principle
and its interpretation is very concrete. States, and their armed forces, treat it as
a serious limitation on their military activity.3 Tere are many reasons for the
1. Proportionality is an important principle not only in IHL, but also in the law that governs
the conditions under which states may go to war—jus ad bellum. Although contemporary inter-
national law contains a broad prohibition on the use of force (United Nations (UN), Charter of
the United Nations, Oct. 24, 1945, art. 2(4) 1 U.N.T.S. XVI), the primary, if not sole, exception
to this prohibition is self-defense (Id., art. 51). In the simplest terms, in order for use of force
in self-defense to be lawful, a state must have been the target of an armed attack, and its resort
to force must be proportionate, immediate, and used only when necessary—as a last resort.
A discussion of jus ad bellum proportionality, which in general terms determine whether the
use of force is proportionate to the cause of war, is beyond the scope of this book. See gener-
ally Case Concerning Oil Platforms (Iran v. U.S.A), Merits, I.C.J. 161, paras. 51, 76–77 (2003);
Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.A),
Merits, I.C.J. 14, para. 194 (1986); Case Concerning Armed Activities on the Territory of the Congo
(Dem. Rep. Congo v. Uganda), Judgment, I.C.J. 168, para. 147 (2005); Yoram Dinstein, War,
Aggression and Self-Defence 230–33 (5th ed., 2011); David Kretzmer, Te Inherent Right to
Self Defence and Proportionality in Jus Ad Bellum, 24 Eur. J. Int’l L. 235 (2013).
2. Tere is some disagreement as to what are the basic principles of IHL. We adopt here the list
proposed by the ICRC in Marco Sassoli et al., How Does Law Protect in War? Vol. 1,
161–62 (I.C.R.C., 3rd ed., 2011).
3. Jack M. Beard, Law and War in the Virtual Era, 103 A.J.I.L. 409, 427 (2009).
Proportionality in International Humanitarian Law. Amichai Cohen & David Zlotogorski, Oxford University Press (2021).
© Oxford University Press. DOI: 10.1093/ oso/ 9780197556726.003.0001
4 I : G eneral C oncepts
prominence of the principle of proportionality, especially, its hold on the “imag-

ination of the epistemic community in which it is used as the prism for viewing,
arguing, and ultimately resolving disputes.”4
It is, perhaps, useful to present the principle of proportionality in the context of
two other cardinal principles of IHL: the principles of necessity and of distinction.5
According to these, only combatants and military objectives may be targeted during
armed conficts. Te attacking party must ascertain whether a given target is military
or civilian, and refrain from attacking the latter. Te principle of proportionality adds
a further constraint to the principle of distinction. Even if the target is a military ob-
jective, attacking it is prohibited if it is expected to cause incidental harm to civilians
“which would be excessive in relation to the concrete and direct military advantage
anticipated.”6
For example, while civilian buildings cannot be attacked during a military opera-
tion, a civilian building housing a group of soldiers can be attacked, because its use
makes it a military objective. However, the principle of proportionality places limits
on how and when this building may be attacked. It is prohibited to attack the building
if it is known that a large number of civilians either in the building or in its vicinity
would be harmed, even if unintentionally, to an extent that this harm (“collateral
damage”) would be excessive relative to the military advantage gained by the attack.
Tus, distinction and proportionality impose two cumulative conditions that must
both be fulflled in order for an attack to be lawful. Both principles limit the freedom
of operation and the discretion of the belligerent parties, and thereby play an impor-
tant role in protecting civilians from the vicissitudes of armed confict.7
Te principle of proportionality is perhaps one of the clearest examples
of the balance struck in IHL8 between the two conficting interests of military
4. Tomas M. Franck, On Proportionality of Countermeasures in International Law, 102 A.J.I.L.

715, 718 (2008).
5. Legality of the Treat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. 8, 587, para. 78
(1996) [Nuclear Weapons Case]: “Te cardinal principles contained in the texts constituting
the fabric of humanitarian law are the following. Te frst is aimed at the protection of the ci-
vilian population and civilian objects and establishes the distinction between combatants and
non-combatants.”
6. Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the
Protection of Victims of International Armed Conficts (Protocol I), June 8, 1977, arts. 51(5)(b),
57(2)(a)(iii), 1125 U.N.T.S. 3 [AP-I].
7. Yoram Dinstein, The Conduct of Hostilities under the Law of International
Armed Conflict 130 (2nd ed., 2010).
8. Michael N. Schmitt, Military Necessity and Humanity in International Humanitarian
Law: Preserving the Delicate Balance, 50 Va. J. Int’l L. 795, 798 (2010). Another clear example is
the obligation to avoid causing unnecessary sufering (AP-I, supra note 6, art. 35(2)).
An Introduction to Proportionality 5
necessity and humanity.9 Tis balance is meted out in the diferent treaties and
their provisions as well as in the customary law of IHL. Proportionality—in ge-
neral, and in IHL specifcally—represents a social convention that certain societal
values must only be achieved at reasonable cost.10 Proportionality is diferent from
other principles of IHL in that it balances military necessity against humanitarian
interests “horizontally” rather than “vertically.” Tat is, rather than allowing for
military necessity to justify any harm to civilians, or allowing the principle of
distinction to completely prohibit any attacks involving collateral damage, pro-
portionality instead requires the attackers to review their planned operation,
weighing the foreseeable damage to the civilian population against the anticipated
military advantage. If the harm resulting from the attack is expected to be exces-
sive in relation to the military advantage that is anticipated, then proportionality
requires that the attack be canceled or suspended.
Although it is one of the core principles of IHL, the term “proportionality” does
not appear in any IHL treaty.11 As the principle of proportionality clearly limits the
freedom of action that armed forces have during armed conficts, states have been
reluctant to limit themselves by adopting an explicit prohibition on the use of dis-
proportionate force.12
Tere seems to be no broad agreement on what constitutes a proportionate at-
tack as opposed to a disproportionate one. It is generally accepted that an attack
on a whole battalion, justifed from a military perspective, is proportionate when
the expected collateral damage is the death of one civilian. It also seems uncontro-
versial that killing an entire village during an attack on one soldier, even if killing
this soldier provides a military advantage, is disproportionate. However, there is
9. Commentary on the Additional Protocols of 8 June 1977 to the Geneva

Conventions of 12 August 1949, para. 2206 (ICRC, Yves Sandoz, Christophe Swinarki, &
Bruno Zimmerman eds., 1987) [AP-I Commentary].

10. Yuval Shany, The Principle of Proportionality under International Law 13
(2009) (Heb.).
11. Tis omission is not one of mere happenstance. Tere was an attempt to include the term
proportionality in the First Additional Protocol to the Geneva Conventions (AP-I), though this
attempt failed. See Amichai Cohen, Te Principle of Proportionality in the Context of Operation
Cast Lead: Institutional Perspectives, 35 Rutgers L. Record 23, 27 n.37 (2009); W.J. Fenrick,
Te Rule of Proportionality and Protocol I in Conventional Warfare, 98 Mil. L. Rev. 91, 102–07
(1982). Prior to AP-I, the principle itself was not even stipulated in any treaty; see William
J. Fenrick, Applying IHL Targeting Rules to Practical Situations: Proportionality and Military
Objectives, 27 Windsor Y.B. Access Just. 271, 277 (2009). Te use of the term “excessive,”
rather than “disproportionate,” in AP-I stems from a concern raised by its framers that the use
of the term “proportionality” could result in a standard that would excessively constrain states’
abilities to engage in combat. See Shany, Id., at 59.
12. Amichai Cohen, Proportionality in Modern Asymmetrical Wars, 8 (2010), avail-
able at: din-online.info/pdf/jc2.pdf.
a vast grey area between these two extremes that remains contentious.13 Almost
three decades ago, W. Hays Parks, an expert in IHL who invested signifcant time
studying the issue of proportionality, concluded that “there remains a substantial
lack of agreement as to the meaning of the provisions in Protocol I relating to pro-
portionality.”14 In the decades since, the principle still remains contested.15
At the outset, it might be useful to set out areas of agreement. Almost eve-
ryone agrees that proportionality in IHL is not a matter of the number of
combatants or soldiers killed during a single attack or during the entire armed
confict.16 From the standpoint of IHL proportionality, it is lawful for one state
to sufer no military casualties whatsoever while killing thousands of enemy
soldiers. Furthermore, according to most scholars, proportionality in IHL does
not concern itself with equality or equity in the means or methods of warfare
that states employ:17 it does not prohibit a state from using overwhelming force
to subdue the military of the adverse party,18 and it is lawful for a modern state
13. Te latter part of this example is presented by Dinstein (Dinstein, supra note 7, at 134).
Tis issue was also raised by the Israeli High Court of Justice. See HCJ 769/02, Public Committee
against Torture v. Te State of Israel, PD 62(1) 507, para. 46 (2006) [Isr.] [Targeted Killings Case].
Recently, an empirical study examined how 331 lawyers and legal academics (LLM students)
conducted proportionality analyses in diferent scenarios. Te study found that ideology (being
a hawk or a dove) is strongly associated with proportionality analysis, as are changes to the facts
and circumstances in the scenarios that were presented to the respondents in the survey. In
the scenarios presented before the respondents, 90.9% of the “hawks” approved a given attack,
as opposed to only 52.1% of “doves.” See Raanan Sulitzeanu-Kenan, Mordechai Kremnitzer,
& Sharon Alon, Facts, Preferences, and Doctrine: An Empirical Analysis of Proportionality
Judgment, 50 L. & Soc’y Rev. 348, 366–72 (2016).
14. W. Hays Parks, Air War and the Law of War, 32 Air Force L. Rev. 1, 175 (1990).
15. Cohen, supra note 12, at 13.
16. Gabriella Blum claims that the lives of soldiers should be protected in specifc cases, but
focuses on the principle of distinction and the principle of necessity. Gabriella Blum, Te
Dispensable Lives of Soldiers, 2 J. Legal Analysis 115, 158 (2010). Ido Rozenzweig does sug-
gest that lives of soldiers should be protected under the principle of proportionality, though his
opinion seems to be somewhat singular in that respect. See: “Rethinking the Basic Principles of
IHL and their Application to Combatants’ Lives” (draf article, on fle with the authors).
17. Adam Roberts, Te Equal Application of the Law of War: A Principle Under Pressure, 872
Int’l Rev. Red Cross 931, 932 (2008): “Under this principle, the laws of war . . . apply equally
to all those who are entitled to participate directly in hostilities . . . it is not relevant whether a
belligerent force represents an autocracy or a democracy, nor is it relevant whether it represents
the government of a single country or the will of the international community.” However, see
also Gabriella Blum, On a Diferential Law of War, 52 Harv. J. Int’l L. 164, 194 (2011), who
suggests that “a common-but-diferentiated principle of proportionality and the duty to take
precautions in attack might impose substantially higher degrees of responsibility on richer or
more technologically advanced countries than on poorer ones.”
18. Parks, supra note 14, at 170; Fenrick, supra note 11, at 277. While proportionality in IHL
does not concern itself with the relation between the harm caused to each one of the parties, de-
termining proportionality in jus ad bellum does involve a discussion of whether the use of force
to use tanks and airplanes against an adversary that only has poorly equipped
infantry soldiers.19 Proportionality concerns only expected harm to civilians
and civilian objects.20
Yet even with regard to civilians, proportionality does not require parity
between the number of casualties—those killed or injured—on both sides of
the conflict. We might imagine a specific scenario in which there will be a
direct causal connection between saving the lives of a number of civilians at
a cost of the lives of other civilians—for example, in an operation aimed at
preventing a specific terrorist attack. But this is not the usual case, or even
a very realistic one. In most cases, determining whether an attack is propor-
tionate or not is not simply a matter of crunching numbers.21 Rather, propor-
tionality is an intricate evaluation of completely different sets of values—on
the one hand, the harm to civilians and civilian objects, and on the other,
the anticipated military advantage. Most commentators agree that these two
values cannot be compared through the simple use of a formula, because they
have no common denominator.22 Proportionality analysis has therefore been
called a “value judgment.”23
and harm committed to the opposing party was proportionate to the justifcation of the use of
force. For more on this matter, see Chapter 7.
19. Such an action might be questionable under proportionality in jus ad bellum, which is not
the subject of this work. See: Kretzmer, Te Inherent Right to Self Defense and Proportionality in
Jus Ad Bellum, supra note 1.
20. Dinstein, supra note 7, at 129.
21. Id., at 130. One example of this misconstrued application of proportionality analysis
can be found in the United Nations Human Rights Council, Report of the United Nations
Fact-Finding Mission on the Gaza Confict, U.N. Doc. A/HRC/12/48 (Sept. 25, 2009) [Te
Goldstone Report]. Robert Sloane writes that: “Many critics of the IDF’s conduct in the
2008–09 campaign Operation Cast Lead, including prominent international lawyers on the
Goldstone Commission, seized upon the numerical disparity between people (civilians and
combatants) killed by Hamas’s forces (13) and people killed by the IDF (estimates vary, but
likely more than 1,100), as decisive evidence of disproportionate force—without consid-
ering the anticipated military objective or ex ante context. Te IDF might well be culpable
for using disproportionate force. But the foregoing would be an indefensible application
of AP-I’s defnition” (Robert D. Sloane, Puzzles of Proportion and the ‘Reasonable Military
Commander’: Refections on the Law, Ethics, and Geopolitics of Proportionality, 6 Harv. Nat’l
Sec. J. 299, 317 (2015)).
22. For a view that proportionality can be assessed by using a specifc equation tailored to in-
clude the diferent considerations that must be examined in the analysis, see Boaz Ganor,
Global Alert: The Rationality of Modern Islamist Terrorism and the Challenge
to the Liberal Democratic World (2015). Tis suggestion will be discussed in some detail
in Chapter 11.
23. Dinstein, supra note 7, at 132; International Criminal Court, Elements of Crimes,
19 n.37 (2011), available at: www.icc-cpi.int/NR/rdonlyres/336923D8-A6AD-40EC-AD7B-
45BF9DE73D56/0/ElementsOfCrimesEng.pdf.
B. LEGAL SOURCES
Today the principle of proportionality is stipulated primarily, but not exclusively, in
two separate articles of the First Additional Protocol to the Geneva Conventions (AP-
I).24 Article 51(5)(b) of AP-I proscribes attacks that cause disproportionate damage:
51(5): Among others, the following types of attacks are to be considered as in-
discriminate: . . . (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 mili-
tary advantage anticipated.
Article 57(2) of AP-I further requires attackers to take precautions prior to an

attack and refrain from launching an attack that is expected to cause dispropor-
tionate harm,25 and to cancel or suspend the attack if it becomes apparent that the
attack will cause disproportionate harm.26 Launching a disproportionate attack,
that causes “death or serious injury to body or health,” is a grave breach of AP-I.27
Te prohibition on disproportionate attacks also appears in Protocol II to the
Certain Conventional Weapons Treaty of 1980,28 and in its amended version of
1996.29
24. AP-I, supra note 6.

25. AP-I, Id., note 6, art. 57(2)(a)(iii): “With respect to attacks, the following precautions shall
be taken: (a) those who plan or decide upon an attack shall: . . . (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 re-
lation to the concrete and direct military advantage anticipated.”
26. AP-I, Id., art. 57(2)(b): “With respect to attacks, the following precautions shall be
taken: . . . (b) an attack shall be cancelled or suspended if it becomes apparent that the objective
is not a military one or is subject to special protection or that the attack may be expected to
cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combina-
tion thereof, which would be excessive in relation to the concrete and direct military advantage
anticipated.”
27. AP-I, Id., art. 85(3): “In addition to the grave breaches defned in Article 11, the following
acts shall be regarded as grave breaches of this Protocol, when committed wilfully, in viola-
tion of the relevant provisions of this Protocol, and causing death or serious injury to body or
health: . . . (b) launching an indiscriminate attack afecting 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 defned in Article 57, paragraph 2 a) iii).”
28. Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons
Which May be Deemed to be Excessively Injurious or to have Indiscriminate Efects, Oct.
10, 1980, 1342 U.N.T.S. 137 [CCW]: Protocol on Prohibitions or Restrictions on the Use of
Mines, Booby-Traps and Other Devices (Protocol II), Geneva, Oct. 10, 1980, art. 3(3), 1342
U.N.T.S. 168.
29. CCW, Id.; Protocol on Prohibitions or Restrictions on the Use of Mines, Booby Traps and
Other Devices (Protocol II), as amended, May 3, 1996, art. 3(8), 35 I.L.M. 1206.
Te Rome Statute classifes disproportionate attacks as a war crime, if com-

mitted during an international armed confict, and prohibits
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 . . . which
would be clearly excessive in relation to the concrete and direct overall military
advantage anticipated.30
Altogether, the principle of proportionality is widely understood to constitute

part of customary international law.31
C. THE STRUCTURE OF THE BOOK

Chapters 2 and 3 lay out a theoretical and historical framework for the principle of
proportionality as formulated in IHL. Te second chapter presents the theoretical
framework from its religious and ethical sources through to its application in IHL,
and discusses how the sub-tests found in general proportionality theory fnd their
way into IHL and into the principle of proportionality as articulated in AP-I. Te
third chapter begins with a description of how proportionality developed in con-
temporary IHL, from the Lieber Code of 1863 to AP-I in 1977. It then discusses
the changing nature of armed conficts and the prevalence of international human
rights law (HRL), and examines how these relate to IHL proportionality.
In Part II, the frst two chapters (4 and 5) delve into how the principle of pro-
portionality is applied in practice. Chapter 4 describes the frst side of the equa-
tion: the concept of military advantage, and how it is analyzed. Chapter 5 presents
the second side of the equation: incidental harm, and reviews issues such as the
defnition of civilians, the assessment of environmental harm, and the required
level of certainty.
Te next fve chapters (6–10) explore more specifc aspects of proportion-
ality, which can be discussed following the analysis in the fourth and ffh
chapters. Chapters 6 and 7 discuss issues pertaining to the military advantage

that is anticipated from an attack. Specifcally, Chapter 6 examines whether force
protection—protecting the lives of soldiers serving in the military forces that are
planning or executing a military operation—can be considered part of the mil-
itary advantage. Tis question concerns the level and extent of risk of harm to
which states must expose their own soldiers in order to reduce the risk of harm
to civilians. Chapter 7 evaluates whether broader strategic considerations can be
30. Rome Statute of the International Criminal Court, Jul. 17, 1998, art. 8.2(b)(iv), 2187
U.N.T.S. 90 (1998).
31. Jean-Marie Henckaerts & Louise Doswald-Beck, Customary International
Humanitarian Law, Vol. 1, rule 14 (2005), available at: ihl-databases.icrc.org/customary-ihl/
eng/docs/v1_rul. Prosecutor v. Kupreskić, ICTY Trials Chamber, IT-95-16, Judgment, para. 524
(Jan. 14, 2000); Targeted Killings Case, supra note 13, paras. 40–43.
included in proportionality analysis, and whether specifc cultural sensitivities

can be taken into account when examining the military advantage anticipated
from an attack. Te chapter reviews the diferent interpretations that states, or-
ganizations, and scholars have ofered on this matter.
Te subsequent three chapters (8–10) discuss how diferent aspects of the prin-
ciple of distinction afect the proportionality analysis. Chapters 8 and 9 look at how
the principle of distinction applies to persons, and how this afects proportion-
ality. Chapter 8 tackles the notion of “direct participation in hostilities,” referring
to civilians who, by actively taking part in hostilities, lose their protection from
direct attack and from incidental harm. Chapter 9 deals with a correlating sit-
uation: the deployment of voluntary and involuntary human shields in armed
conficts, and the ensuing risk of harm to the civilian population. Chapter 10
analyzes how the defnitions of military objectives, dual-use targets, and indis-
criminate attacks afect the proportionality analysis.
Part III of the book moves to an analysis of what we believe to be the crux of
proportionality analysis: the procedural aspects of proportionality.
Chapter 11 considers whether the vague notion of proportionality can be
simplifed, by using either a mathematical formula or the experiences and prac-
tical tools of practitioners in the feld. Te chapter lays out the signifcant barriers
facing such eforts.
Chapter 12 explores the more procedural aspects of proportionality, examining
such questions as these: Who is responsible for assuring that attacks are propor-
tionate? what is the role of legal advisors in proportionality analysis? and what
level of information is required prior to attack? Te chapter also discusses whether
establishing a proper procedure for proportionality can help improve the protec-
tion of civilians during armed confict.
Chapter 13 discusses the role of investigations in ensuring the protection of
civilians and the efcacy of proportionality, asking whether criminal or other
forms of investigation are most efective in ensuring respect for the principle of
proportionality.
Te fnal chapter of the book takes a look at the future, with a brief exploration
of the implications of image-fare, cyber warfare, and autonomous weapon sys-
tems for the issue of proportionality.
2
Ethical and Constitutional Foundations
A. THE POSSIBLE SOURCES FOR PROPORTIONALITY

We begin by providing a concise background on the various theories justifying
IHL in general terms, and explain how these can also be applied to the principle
of proportionality.
Intuitively, IHL is meant to regulate interstate conficts. As such, its very exist-
ence is puzzling: Why would opponents bent on destroying each other commit
to and obey rules designed to limit their choice of targets, weapons, and tactics?
Traditionally, two kinds of answers have been provided to this question. On
the one hand, moralists regard IHL as being inspired by morality.1 For those
supporting this view, IHL in general, and any specifc rule in particular, must
be justifed as a result of some moral principle. Much work in this area is based
on ideas of the “just war,” which have their roots in past centuries, but have been
revived in the 20th century by the infuential work of Michael Walzer. On the
other hand, realists explain the evolution of IHL on utilitarian grounds, viewing
the threat of reciprocal retaliation as the main reason for compliance with it.2
Below, we ofer a short introduction to the concept of proportionality from
each of these viewpoints.
1. Te question of the morality of the laws of war is most intimately connected with the “just
war” theory; see Michael Walzer, Just and Unjust Wars 127–33 (4th ed., 2006); Larry
May, War Crimes and Just War 3–8 (2007). On moral approaches to law, see Gabriella Blum,
Te Laws of War and the “Lesser Evil,” 35 Yale J. Int’l L. 1, 39 (2010) (“From a deontological
stance, the actions proscribed by strict IHL rules . . . are inherently repugnant, a violation of a
moral imperative in the Kantian sense, independent of any cost-beneft calculation in any par-
ticular instance.”).
2. Eric A. Posner & Alan O. Sykes, Economic Foundations of International Law 190–
95 (2013) (suggesting that laws of war are possible in the frst place and would be respected
only under conditions of symmetry (namely, when the rules give advantage to neither side) and
reciprocity (namely, the ability of the opponent to retaliate to prior violations)); Eric A. Posner,
Human Rights, the Laws of War, and Reciprocity, 6 L. & Ethics Hum. Rts. 147, 150, 170–71
(2012); Eric A. Posner, Centennial Tribute Essay, A Teory of the Laws of War, 70 U. Chi. L. Rev.
297, 297 (2003).
© Oxford University Press. DOI: 10.1093/oso/9780197556726.003.0002
B. A PHILOSOPHICAL AND RELIGIOUS PRISM

OF PROPORTIONALITY
Premodern Views of Proportionality

Imagine a town somewhere in the Levant whose entire population is comprised of
ISIS fghters, with the exception of only 10 civilians.3 Under IHL, attacking such a
town in its entirety would presumably not raise any questions of legality. Te terrorists
and the buildings they use are lawful targets. Few would argue that carpet bombing
the town would present a difcult question of proportionality: the unfortunate loss of
10 civilian lives is clearly not excessive in relation to the anticipated military advan-
tage of destroying an ISIS stronghold and such a large group of fghters.
It may seem surprising, but there is a well-known parallel example with iden-
tical parameters in which a court of higher instance “held” that an attack against
such a town would be unlawful due to the expected collateral damage. Tis ex-
ample, possibly the earliest discussion relevant to the concept of proportionality, is
the story of Sodom and Gomorrah and Abraham’s debate with God (substituting
evildoers for terrorists and the righteous few for civilians).4
Te book of Genesis tells the story of Abraham challenging God’s decision to
destroy the twin city of Sodom and Gomorrah, whose inhabitants were evildoers.5
Faced with the complete destruction of these cities, Abraham asks God, “Wilt
thou also destroy the righteous with the wicked?,”6 and enquires whether God
would deign to destroy the city if there were 50 righteous people within it,
stating: “Far be it from You! Shall not the Judge of all the earth deal justly?”7 When
God responds that he would spare the city if 50 righteous people were present,
Abraham continues his challenge, presenting steadily diminishing numbers of
potentially afected righteous persons, until God confrms that he will not destroy
the city even if there are only 10 righteous people within.8
Tis early discussion of the question of causing incidental harm to the innocents
when attempting to harm evildoers is not the only such discussion in premodern
times. Philo of Alexandria wrote that the Jewish law of warfare “distinguishes be-
tween those whose life is one of hostility and the reverse. For to breathe slaughter
against all, even those who have done very little or nothing amiss, shows what we
should call a savage and brutal soul.”9 Early Muslim thought was also cognizant of
3. For the sake of this discussion we are assuming that an armed confict, whether international
or non-international, exists with ISIS in this scenario.
4. We wish to thank Dr. Dina Wyshogrod for her reference to the story of Sodom and Gomorrah.
5. Genesis 18:16; Walzer, supra note 1, at 133.
6. Genesis 18:23.
7. Genesis 18:25.
8. Genesis 18:32.
9. Michael Newton & Larry May, Proportionality in International Law 29 (2014).
Ethical and Constitutional Foundations 13
the need to preserve the lives of the innocent: “Umar wrote to the commanders to
fght in the way of Allah and to fght only those who fght against them, and not to
kill women or minors, or to kill those who do not use a razor.”10
It has been claimed that the principle of proportionality was already extant in
the “just war theory” of early Christendom.11 According to this theory, war could
only be deemed just if the resulting good exceeded the ills and horrors caused.12
However, the main consideration here was not overall proportionality, but rather
the existence of a just cause, and although there existed a requirement for just
means during armed confict, there was no distinction, as exists today, between
jus ad bellum and jus in bello. St. Augustine of Hippo, for example, was of the
opinion that once a just cause existed for the war, the ends justifed any means.13
St. Augustine’s positions did not remain unchallenged. Writing nearly a mil-
lennium later, in the 13th century, Tomas Aquinas noted that “If a man in self-
defense uses more than necessary violence, it will be unlawful, whereas if he repels
force with moderation, his defense will be lawful.”14 While this does not allude
directly to jus in bello proportionality, the core concept of proportionality when
using force does exist.
Later philosophers and theologians did require proportionality during times of
war, though their concepts remain distinct from contemporary understandings of
proportionality. Writing in the 16th century, Francisco Vitoria wrote that “When
war for a just cause has broken out, it must not be waged so as to ruin people
against whom it is directed, but only so as to obtain one’s rights . . . When victory
has been won and the war is over the victory should be utilized with moderation
10. Id., at 29.

11. Mark Totten, Using Force First: Moral Tradition and the Case for Revision, 43 Stan. J. Int’l
L. 95, n.36 (2007). “. . . [t]‌he historical antecedents of necessity and proportionality lie at least as
far back as the Roman law concepts of incontinenti and modernamen inculpatae tutelage in the
context of individual self-defense . . .” Te latter relates to the principle of proportionality and
requires moderation in a forceful response relative to the circumstances. Both norms appear in
this passage from the Digest of Justinian: “Tose who do damage because they cannot otherwise
defend themselves are blameless . . . It is permitted only to use force against an attacker, and even
then only so far as is necessary for self-defense.” The Digest of Justinian 291 (Alan Watson
ed. & trans., 1998); Noam Lubell & Amichai Cohen, Strategic Proportionality: Limitations on the
Use of Force in Modern Armed Conficts, 96 Int’l L. Stud. 159, 164, n.11 (2020). Tese ideas
appear throughout the writings of the canonists.
12. Gary D. Brown, Proportionality and Just War, 2 J. Military Ethics 171 (2003). Amichai
Cohen, Te Principle of Proportionality in the Context of Operation Cast Lead: Institutional
Perspectives, 35 Rutgers L. Record 23, 28, n.38 (2009); Judith G. Gardam, Proportionality and
Force in International Law, 87 Am. J. Int’l L. 391 (1993) [Gardam, Proportionality and Force in
International Law].
13. Gardam, Proportionality and Force in International Law, Id., at 395.
14. Tomas Aquinas, From Summa Teologiae, in International Relations in Political
Thought: Texts from the Ancient Greeks to the First World War 213, 218 (Chris
Brown et al. eds., 2002) (emphasis added).
and Christian humility.”15 Francisco Suarez, in the 17th century, also explic-
itly presented considerations of proportionality during times of armed confict,
writing, “Due proportion must be observed in its beginning, during its prosecu-
tion, and afer victory.”16
The Philosophical Background

Te philosophical background for the principle of proportionality in general, and
in IHL in particular, can be found in two distinct sources. Te frst is the Catholic
idea of double efect, which ties in with the “just war” tradition. Te second is the
principle of humanity, as developed by modern scholars.
Te principle of double efect has a long history. Basically, it assumes that an
action that has harmful efects is legitimate if the goal was good, and that the good
results outweigh the bad. Walzer summarizes the four conditions of the modern
formulation of double efect:
(1) Te act in itself is good or at least indiferent (in armed conficts, this
means a legitimate act of war).
(2) Te direct efect is morally acceptable (e.g., the destruction of military
supplies).
(3) Te actor’s intentions are good (the attacking force aims to achieve only
the acceptable efects).
(4) Te good efect is sufciently good to compensate for the evil efect.17
If all these conditions are met, then an act which has undesirable consequences
can be seen as justifed.18 Te fact that the bad result was not intended strips it
15. Newton & May, supra note 9, at 62.

16. Id.
17. Michael Walzer, Just and Unjust War 153 (5th ed., 2015). See also Joseph M. Boyle,
Towards Understanding the Principle of Double Efect, in The Morality of War, 164 (Larry
May ed., 2006). David Lefowitz defned the term a little diferently, specifcally concerning the
use of proportionality in armed conficts:
(1) Te combatant intends to attack a legitimate target of war, and to do so in a manner
that conforms to the moral constraints on such acts.
(2) Te combatant does not intend to cause harm to noncombatants as a means to
achieving his intended goal. Rather, the combatant merely foresees that his attack on a
legitimate target of war will cause harm to illegitimate targets of war as a side efect.
(3) Tere is sufcient reason to warrant the combatants’ acting in a way that can be rea-
sonably expected to cause harm to noncombatants (or illegitimate targets of war, more
broadly).
David Lefowitz, Collateral Damage, in War: Essays in Political Philosophy 145, 147
(Larry May ed., 2008).
18. And not only as “excused.” Boyle, supra note 17.
of its moral wrongfulness.19 Hence, proportionality is a situation where the bad

efects outweigh the good efects, and then the fourth condition is not met. In
Henry Sidgwisk’s terms, “the conduciveness to the end is slight in comparison
with the amount of the mischief.”20
As Larry May notes, proportionality seen in these terms might lead to a con-
sequentialist perception of what is permissible and prohibited in war. If good
efects trump bad efects, then many acts could be “whitewashed” through
justifying them as having contributed to a just cause.21 Te easiest answer to this
claim is that proportionality is only one of the limitations on human action in
war. Proportionality operates alongside the requirements of the principle of dis-
tinction and military necessity, and the prohibition on the use of force found in
the UN Charter.
May, however, does not settle for this “technical” explanation. Instead, he
proposes that the source of the principle of proportionality is the idea of hu-
mane treatment—namely, that the harm caused by war should be minimized.22
May’s view of proportionality is very diferent from the double-efect doctrine.
Terefore, a disproportional act, according to May, is not merely a justifed act
that fails to meet one condition. Rather, it is an inhumane act, violating the lim-
itations on acts of war, limitations stemming from humanitarian considerations.
Tere is a major diference between these two understandings of the prin-
ciple of proportionality. As Walzer points out, the double-efect analysis does not
give full protection to any specifc group. At the most, it confers the right to be
considered as deserving protection, a right that is relatively easy to lose—for ex-
ample, by soldiers. Based on the principle of double efect, Walzer seems to sug-
gest that once a war has started, the killing of all soldiers is allowed, with no need
to assess the specifc threat that every single soldier poses.23 By contrast, a view
of proportionality based on humane treatment might suggest otherwise. Indeed,
Gabriella Blum, adopting May’s position, rejects the “category-based” view that
soldiers are always legitimate targets, and views the principle of proportionality as
applying to soldiers too.24
May’s position seems to us to be of signifcant value in the context of pro-

portionality in IHL. Te main goal of IHL is to lessen the sufering of humans.
Philosophical consistency aside, it seems to us that this humanitarian approach
should guide the analysis of the principle of proportionality.
19. For a criticism of this position on the basis of inability to diferentiate between intended and
unintended consequences, see Lefowitz, supra note 17.
20. Henry Sidgwick, Elements of Politics 263–65 (London, 1891).
21. Larry May, War Crimes and Just Cause 221 (2007).
22. Id., at 222.
23. Walzer, supra note 17, at 145.
24. Gabriela Blum, Te Dispensable Lives of Soldiers, 2(1) J. Legal Anal. 69 (2010).
C. THE RATIONAL ANALYSIS OF PROPORTIONALITY

Tere is no shortage of discussion over the principle of proportionality from a mor-
alist point of view, and above we provided only a brief survey of this issue. Contrary
to this, a realist or utilitarian analysis of proportionality in IHL is almost nonexistent.
Tere is very scarce literature explaining IHL in general from a utilitarian point of
view in any detail. Tose that exist either ofer only a general overviews and expla-
nation of the matter, or reject the efcacy of IHL altogether.25 Tus, our following
proposal for how the principle of proportionality can be based on the self-interest
of the state, rather than on some moral edict, represents an initial attempt to break
new ground.
Rational Reciprocal Explanation

One possible rational explanation for IHL is the implied “agreement” between the
parties to a confict to limit the efects of war.26 States agree in advance on a recip-
rocal understanding, which is rationally benefcial to all parties to the confict. Te
rule of proportionality is certainly an attempt to limit the impact of armed conficts
on civilians. From this perspective, proportionality is one of a series of rules, like the
principle of military necessity and the principle of distinction, which provide the
basis of this “contract” between parties to the confict.
Te goals of this contract are both external and internal. Externally, the rules
of proportionality and distinction limit the destruction caused by war. Since all
parties know that they will have to live together afer the war ends, it is in both
their interests to limit the deadweight loss caused by armed confict. Tis is even
truer if one party to the confict aims to take control of a territory controlled by
the other party. Tere is little sense in completely destroying a civilian area that
one aims to control, as this would unnecessarily expose one to even greater ani-
mosity from the civilian population.27
Internally, limiting the sufering of the civilian population provides the gov-
ernment with more fexibility for conducting its operations, as large numbers of
25. E.g., Eric A. Posner, Human Rights, the Laws of War, and Reciprocity, 6 L. & Ethics of
Human Rights 148 (2012) (claiming that reciprocity explains why states follow IHL); James
D. Morrow, When Do States Follow the Laws of War?, 101 Amer. Pol. Sci. Rev. 559 (2007)
(claiming that IHL provides a solution to Prisoner’s Dilemma of states). But see: Chris af
Jochnick & Roger Normand, Te Legitimation of Violence: A Critical History of the Laws of War,
35 Harv. J. Int’l L. 49 (1994) (claiming that IHL serves to legitimize violence); and Posner, A
Teory of the Laws of War, supra note 2 (arguing that the infuence of IHL is limited because of
diferences between states, and may even make going to war easier for some states).
26. Yitzhak Benbaji & Daniel Statman, War by Agreement: A Contractarian Ethics
of War (2019).
27. Not creating animosity within the civilian population is an overt goal of counterinsurgency
operations. See, e.g., U.S. Army Field Manual 3–24 Insurgencies and Countering Insurgencies
(May 2014):
civilian casualties can lead to public uproar. In turn, public pressure can push the
government to act in ways that it considers less than optimal, including ending
the confict before it is ready to do so or accepting terms for concluding the con-
fict that it would not have otherwise entertained.
Limiting civilian casualties also allows the state to garner international support.
In modern armed conficts, international support is based upon how the acts of
the parties to the confict are perceived by a global audience. A larger number of
civilian casualties usually means less international support.
All these factors support the relevance of IHL in general and the principle of
proportionality in particular. But even in classic conficts, traditional rationalist
explanations can be clouded by doubt. To be efective, reciprocity requires that
each side has ample information confrming its opponent’s intention and ability
to comply with the law indefnitely. Tis condition is rarely met during combat, as
the noise of the battlefeld typically induces adversaries to interpret their enemy’s
mistakes as intentional violations of the law, and prompts them to retaliate in kind.
In modern armed conficts, there are even stronger factors that bring the ra-
tionality of IHL and of the principle of proportionality into question. First among
these is the fact that parties to conficts, usually non-state actors (NSAs), ofen
manipulate the principle of proportionality. Knowing that the other party to the
confict (usually the state) will attempt to limit civilian casualties, these NSAs de-
liberately act from within civilian population centers, making collateral damage
almost unavoidable, and ofen large scale. Second, some parties to a confict, once
again especially NSAs, direct their fre against civilians. Tis mode of activity runs
against the contractual explanation for IHL, explained before.
Naturally, states that face these acts by NSAs see less utility in following the
principle of proportionality. Any state adopting a realist position with regard
to respecting IHL might abandon the principles of distinction and proportion-
ality altogether. Other armed forces might come to see it as a serious, unjusti-
fed limitation on their ability to act. As will be shown later in this book, these
approaches can fnd expression in the way that states interpret the principle of
1-37. Soldiers and Marines are not permitted to use force disproportionately or
indiscriminately. Typically, more force reduces tactical risk in the short term.
But in counterinsurgency, the more force that is used, the less efective it can be.
It is more likely that counterinsurgents will achieve an end state by protecting
a population, not the counterinsurgency force. When military forces remain in
secure compounds, they lose touch with the situation, appear to be indiferent
to the population, simplify enemy intelligence operations, or appear afraid to
engage the insurgents. In efect, they concede the initiative to the insurgents.
To be successful, counterinsurgency forces must work with and share risks
with the host-nation forces and the population. Soldiers and Marines must
accept some risk to minimize harm to noncombatants. Accepting prudent risk
is an essential part of the warrior ethos and an obligation of honorable service.
proportionality—specifcally, how they weigh the opposing values of military ad-

vantage and cost to civilian life.
We believe that most liberal democracies would never abandon the principle of dis-
tinction, and would reject directing fre at civilians under almost any circumstances.
Te resulting internal and international public outcry would delegitimize any jus-
tifcation for the armed confict itself. However, a decline in the state’s interest to
apply IHL when facing an enemy that itself does not respect IHL could certainly be
refected in the application of the principle of proportionality. Te attacking party
may be more willing to cause collateral civilian damage when fghting an enemy that
endangers its own civilians. As we will discuss, some diferences in the interpretation
of the principle of proportionality, such as regarding the use of “human shields,” can
be explained in this manner.28
D. PROPORTIONALITY AS A MODE OF CONTROL

In recent years, another rational explanation has emerged for the growing promi-
nence and respect aforded IHL: viewing IHL as a means for the principals in a con-
fict to exert control over their own domestic agents.29
According to this approach, the traditional moral and rational explanations fail
to grasp a crucial factor in the dynamics of modern warfare: the need for each
side to control its own forces. Te leaderships of contending armies may indeed
be motivated by moral concerns or locked in a reciprocal relationship, but this is
not why they are willing to adopt IHL. For this they need no formal law, just as the
princes and kings in earlier times could rely on their shared understandings about the
law. Rather, modern militaries and their civilian leaderships need IHL—specifcally,
a form of IHL that is tailored to control their own agents—because they collectively
face a daunting challenge of reigning in their respective troops, whose interests may
diverge from their own. During war, each decision-maker has a diferent future to
consider: the state’s president will have a long-term vision, contemplating the tran-
sition to peace, while the military commanders will focus more concretely on the
greater scope of the war. But the foot soldiers who serve them both have far more
immediate concerns—surviving the current assault on enemy positions while efec-
tively fulflling their orders and attaining their objectives efectively. Te need for
laws that maintain discipline within the fghting forces rises in direct relation to the
growing disparity between the diferent “futures” that shape each actor’s preferences.
To explain this counterintuitive hypothesis, we must begin by prying open the
black box of “the state” and examining the complex interactions between the ci-
vilian and military apparatuses that take place behind the veil of sovereignty.30
28. See our discussion in Chapter 9.

29. Eyal Benvenisti & Amichai Cohen, War Is Governance: Explaining the Laws of War from a
Principal–Agent Perspective, 112 Mich. L. Rev. 1363 (2014).
30. Tis is true not only in the context of IHL. Like any complex organization, states pro-
mote policies preferred by those domestic actors who are more politically efective than their
Doing so reveals that the prevalent assumption that IHL is designed only to regu-
late interstate conficts is too simplistic. Te map of the battlefeld may show one
state fghting another, but there are other less visible and more complex intrastate
battles raging simultaneously between diferent domestic actors, each seeking to
control the conduct of the army and shape the war’s outcome. As scholars of po-
litical science have long observed, controlling the armed forces, especially during
war, is one of the most acute challenges faced by any government. In democracies,
one of the “most basic of political questions” is how to “reconcile a military strong
enough to do anything the civilians ask, with a military subordinate enough to do
only what civilians authorize.”31 Tis question leads to
an ineluctable and potentially dangerous tension between military force and

constitutional government [which] makes for a vexing dilemma. Although
raising and deploying armed forces may be indispensable for sustaining a se-
cure environment for constitutionalist politics, creating a safe place . . . for
military institutions [is] among the most troublesome challenges of a consti-
tutionalist order.32
Tere is confict not only between the high command of the armed forces and the
civilian government that seeks to control it. Recourse to force also creates conficts
between civil society and elected ofcials, between elected ofcials and military
commanders, and between military commanders and combat soldiers. IHL is an ex-
ternal tool designed to address many of these internal conficts.
Tese diverse conficts can all be framed as principal-agent conficts, situations
in which each “principal” (the public, elected ofcials, and military commanders)
necessarily employs an “agent” (elected ofcials, military commanders, and
combat soldiers, respectively) to further its goals and secure its interests. Te del-
egation of authority to engage in combat exposes the principal to the risk that
agents might act in their own interests rather than in those of the principal.33
competitors. Hence, theories that are based on the assumption that somehow “the state” can
have unitary preferences risk being unrealistic. Compare with Eyal Benvenisti, Exit and Voice
in the Age of Globalization, 98 Mich. L. Rev. 167 (1999) (focusing on the infuence of interest
groups on the shaping of international norms); Jack L. Goldsmith & Eric A. Posner, The
Limits of International Law 4–5, 7 (2005) (“We give the state the starring role in our
drama. . . . Our theory of international law assumes that states act rationally to maximize their
interests.”); Andrew T. Guzman, How International Law Works 121 (2008) (“Our basic
rational choice assumptions imply that states will only enter into agreements when doing so
makes them (or, at least, their policymakers) better of ”).
31. Peter D. Feaver, Armed Servants: Agency, Oversight, and Civil-
Military
Relations 1–2 (2003).
32. Mark E. Brandon, War and the American Constitutional Order, in The Constitution in
Wartime: Beyond Alarmism and Complacency 11, 13 (Mark Tushnet ed., 2005).
33. In this context, the military is no diferent from any other bureaucracy that may be
framed as an agent of political principals. See generally Kenneth A. Shepsle & Mark S.
“Agency costs” tend to be high during war.34 Te principals want to win the
war, but they are also aware that it will be necessary to re-establish peace afer-
ward. Te principals therefore fear that their agents might act too aggressively,
undermining the principals’ long-term goals. Conversely, the military may have
similar concerns when it is the civilian government that weighs only short-term
interests at the expense of long-term ones, while soldiers are primarily concerned
about their own survival during each engagement. “Agency slack” is high due to
the opportunities for the agents to shirk their obligations during combat with
impunity.
Reliance on IHL and IHL-based institutions can reduce the agency costs preva-
lent in war. IHL provides several benefts over purely domestic rules, such as mil-
itary manuals and various legal regulations. First, by committing to international
norms, domestic principals can tie their own hands in domestic bargaining and
thereby preempt domestic opposition, such as from a politically powerful military.
Second, IHL can overcome monitoring and enforcement difculties because the
law is interpreted and enforced by actors other than national principals. If a mili-
tary agent breaches IHL, the victims (civilians and combatants on the enemy side),
as well as neutral third countries and actors such as the International Committee of
the Red Cross (ICRC), can invoke the shared system of norms and bring violations
to the attention of the principals.35 Te principals can then use this “fre alarm”
mechanism to restrain their agents.36 Finally, third-party enforcement can prove
an efective and credible threat to agents who might otherwise disregard their
principals’ commands.
As will be explained in detail in later chapters of this book, this principle-agent
concept of IHL supports a specifc interpretation of the principle of proportion-
ality. If the principle of proportionality is indeed intended to provide control over
the actions of the military, it should be interpreted in a more procedural and
Bonchek, Analyzing Politics: Rationality, Behavior, and Institutions 360–70 (1997)

(discussing how bureaucratic policies drif toward an agency’s ideal); Mathew D. McCubbins
et al., Structure and Process, Politics and Policy: Administrative Arrangements and the Political
Control of Agencies, 75 Va. L. Rev. 431, 433–35 (1989) (discussing problems in limiting the
discretion of agencies).
34. See Feaver, supra note 31, at 4, 68; Brandon, supra note 32, at 20–22.
35. Indeed, one of the ICRC’s major tasks, for example, is codifying and creating a shared in-
terpretation of IHL, as evidenced in Int’l Comm. of the Red Cross, Commentary on the
Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949
(Yves Sandoz et al. eds., 1987), as well as the restatement of customary law in Jean-Marie
Henckaerts & Louise Doswald-Beck, Customary International Humanitarian Law,
Vol. 1 (2005).
36. See Mathew D. McCubbins et al., The Political Origins of the Administrative
Procedure Act, 15 J. Law Econ. & Org. 180, 198–9 9 (1999) (discussing the role of ad-
ministrative law as providing a fire alarm to the legislature when the executive deviates
from its mandate).
bureaucratic manner. Te more procedures required to apply the principle, the

easier it will be to control.37
Te principal-agent explanation provided earlier has a distinct advantage over
other explanations of IHL. On the one hand, it provides an incentive for states to
follow the principle of proportionality in IHL. On the other, it is not dependent
on the actions of other parties to the confict. For those interested in promoting
compliance with IHL in modern armed conficts, this explanation seems to hold
a signifcant advantage.
E. THE CONSTITUTIONAL AND ADMINISTRATIVE

BACKGROUND TO PROPORTIONALITY ANALYSIS
Te contemporary principle of proportionality in legal jurisprudence in general
can be traced back to German law in the 19th century. From there, it spread to
many other states and jurisdictions over the course of the 20th century, including
Canada, South Africa, New Zealand, Israel, the European Union, the European
Convention on Human Rights, and even the World Trade Organization.38
In domestic jurisdictions, proportionality analysis includes several preliminary
elements and sub-tests. Te two preliminary elements are, frst, that proportion-
ality is examined only if a policy infringes upon a person’s rights; and second, the
infringement can only be justifed as long as the policy is adopted for a worthy
purpose.
Tere are three sub-tests of proportionality:
(1) Tere is a rational connection between the means and the policy
objective. Tis is referred to as the suitability test.
(2) Te goal cannot be achieved by less harmful means. If there are other
means by which the same policy objective can be achieved while
causing less harm, then the policy is not proportionate. Tis is called
the least harmful means test.
(3) Using utilitarian analysis, it can be determined that the action’s

beneft outweighs the harm it caused. Tis is called strict-sense
proportionality.39
Proportionality, as just described, is a legal tool whose essence is to enable so-

ciety to make moral decisions by employing a legal instrument that incorporates
both deontological and consequentialist elements. Te frst sub-test, suitability,
37. On procedures, bureaucracy, and administrative law as modes of control see

“McNollgast”: Mathew D. McCubbins, Roger G. Noll, & Barry R. Weingast, Administrative
Procedures as Instruments of Political Control, 3 J. L. Econ. & Org. 243 (1987).
38. Raanan Sulitzeanu-Kenan, Mordechai Kremnitzer, & Sharon Alon, Facts, Preferences, and
Doctrine: An Empirical Analysis of Proportionality Judgment, 50 L. & Soc’y Rev. 348, 350 (2016).
39. Id., at 351–52.
guarantees that only relevant measures are used to achieve goals. In addition to
the rational means-end test, there are instances where certain means might be
efective for achieving a desired societal policy, but their use would otherwise be
unjust. An example of this is punishing an innocent person for a crime he or she
did not commit in order to successfully deter other serious crimes in the future.
Even if this policy succeeded, there is something manifestly unjust about pun-
ishing an innocent person for something he or she did not do so as to achieve
a wider goal. Te suitability sub-test has its roots in deontological ethics; some
actions are forbidden even if they cause more good than harm.
Te second sub-test, the least harmful means test, is rooted in consequentialist
ethics. Consequentialism defnes moral acts as those which result in the best
possible result (such as the highest total utility, usually happiness or pleasure)
from all alternative acts.40 If the same policy goal can be achieved through an al-
ternative measure to the one planned, which would cause less harm, then from
a moral (consequentialist) standpoint there is no justifcation for choosing the
more harmful measure rather than the less harmful one.
Te third sub-test, strict-sense proportionality, is also a manifestation of conse-
quentialist ethics. If the action causes more harm than good there is no justifca-
tion for it. Tis legal instrument for performing assessments of moral actions on
a societal level is crucial, as it permits the public to establish and maintain a just
society by comparatively examining the costs and benefts of governing norms.
Te use of proportionality in constitutional and administrative settings, as well
as in the IHL context, relies on this third meaning of proportionality. Te two frst
sub-tests can be presented as simple logic, or at least, as common-sense claims
that are not objectionable. Te third sub-test, however, is of a diferent nature.
It requires the decision-maker to balance good and bad efects, and sometimes
to make decisions that will mean giving up or compromising on some impor-
tant social goal or interest. Tis inevitably invites argument regarding the suit-
ability of the decision-maker, relative moral claims, and other factors afecting
the weighting of competing values. It is exactly because of this complex nature
that proportionality is interesting, and it is why most of the following discussions

focus on this meaning of proportionality.
40. Shelley Kagan, Normative Ethics 25–48 (1998); Phillip Petit, Consequentialism, in A
Companion to Ethics 230 (Peter Singer ed., 1991).
3
A General Overview of Proportionality in IHL
A. THE HISTORY AND DEVELOPMENT OF IHL

PROPORTIONALITY
Compared with other branches of international humanitarian law, regulations re-
specting the protection of civilians in armed conficts were a relatively late devel-
opment. Tis is probably due to the fact that traditional weapons and means and
methods of warfare were intended to destroy the enemy’s armed forces, and not
its property or matériel.1 For example, as the technology of incendiary bombs de-
veloped, legal scholars were still of the opinion that there were no legal limitations
on the use of projectiles against civilians.2
Even when the protection of civilians in armed confict began to be codifed,
during the 19th century, no constraints existed on causing incidental collateral
harm to civilians—as long as an attack was directed against a military objective,
it was considered to be lawful.3 For example, the Lieber Code of 1863,4 the frst
modern codifcation of the laws of armed confict, contains the requirement that
1. Alexander Gillespie, A History of the Laws of War: Volume 2, The Customs and
Laws of War with Regards to Civilians in Times of Conflict (Hart, Oxford, 2011), 13.
2. Id., at 14.
3. Yoram Dinstein, The Conduct of Hostilities under the Law of International
Armed Conflict 129 (2nd ed., 2010). For a detailed description of the development and attitudes
toward the principle of proportionality see A. P. V. Rogers, Te Principle of Proportionality, in
The Legitimate Use of Military Force: The Just War Tradition and the Customary
Law of Armed Conflict 189, 190–205 (Howard M. Hensel ed., 2007) [Rogers, Te Principle
of Proportionality]; Judith G. Gardam, Proportionality and Force in International Law, 87 Am.
J. Int’l L. 391, 397–403 (1993); W.J. Fenrick, Te Rule of Proportionality and Protocol I in
Conventional Warfare, 98 Mil. L. Rev. 91, 95–8 (1982).
4. Te Lieber Code was promulgated in 1863, during the American Civil War. It was the result
of a request from the general-in-chief of the Union Armies, Henry Wager Halleck, to Dr. Francis
Lieber of Harvard College, to prepare a code of law for the Union Armies. Te reason for this
request was the problem of guerilla warfare faced by the Union. Tis code was adopted by the
Union Army and became the frst statement of the law of war during contemporary times, and
was the basis for much of that law until as recently as World War II. W. Hays Parks, Air War and
the Law of War, 32 Air Force L. Rev. 1, 7 (1990).
© Oxford University Press. DOI: 10.1093/oso/9780197556726.003.0003
“commanders, whenever admissible, inform the enemy of their intention to bom-

bard a place, so that the non-combatants and especially the women and children
may be removed.”5 Nevertheless, the Code contained no prohibition on causing
excessive damage to civilians. Indeed, article 15 stipulated: “Military necessity
admits of all direct destruction of life or limb of armed enemies, and of other per-
sons whose destruction is incidentally unavoidable in the armed contests of the war.”6
Article 22 of the Lieber Code limited the harm that could be caused to civilians,
albeit only so far as there was no military necessity for causing the harm. Te
Code still does not concern itself with the need to strike a balance between the
harm and the gain achieved from military action:
Nevertheless, as civilization has advanced during the last centuries, so has like-
wise steadily advanced, especially in war on land, the distinction between the
private individual belonging to a hostile country and the hostile country itself,
with its men in arms. Te principle has been more and more acknowledged that
the unarmed citizen is to be spared in person, property, and honor as much as the
exigencies of war will admit.7
Te need to balance the two interests of humanity and military necessity was
raised in the St. Petersburg Declaration of 1868, which was an important step
forward in the understanding that the horrors of war should be limited. Te pre-
amble of the Declaration recognized a need to “fx . . . the technical limits at which
the necessities of war ought to yield to the requirements of humanity,”8 and fur-
ther stipulated that
the only legitimate object which States should endeavor to accomplish during
war is to weaken the military forces of the enemy; that for this purpose it is suf-
fcient to disable the greatest possible number of men; that this object would be
exceeded by the employment of arms which uselessly aggravate the suferings
of disabled men, or render their death inevitable.9
5. Adjutant Gen.’s Ofce, U.S. War Dep’t, Instructions for the Government of Armies of the
United States in the Field, Gen. Ord. No. 100, Apr. 24, 1863, available at: ihl-databases.icrc.org/
ihl/INTRO/110 [Lieber Code].
6. Id., at art. 15. (emphasis added). Tis might be a refection of what we described as the
second sub-test of proportionality.
7. Id., at art. 22 (emphasis added).
8. St. Petersburg Declaration Renouncing the Use in Time of War of Explosive Projectiles
under 400 Grammes Weight, Dec. 11, 1868, 138 C.T.S. 297 [St. Petersburg Declaration], pre-
amble; Michael N. Schmitt, Military Necessity and Humanity in International Humanitarian
Law: Preserving the Delicate Balance, 50 Va. J. Int’l L. 795, 799 (2010).
9. St. Petersburg Declaration, supra note 8, preamble. See also, for example, Te Hague
Convention (IV) Respecting the Laws and Customs of War on Land, Annexed Regulations,
1907, art. 25, 205 C.T.S. 277 [Hague Regulations]: “Te attack or bombardment, by whatever
means, of towns, villages, dwellings, or buildings which are undefended is prohibited”. Te very
General Overview of Proportionality in IHL 25
Nonetheless, the Declaration still did not limit the extent of hostilities with regard
to collateral damage, or allude to such a need.
Te Hague Regulations signed in 1907, included a provision regulating the
destruction or seizure of enemy property, prohibiting such actions unless “im-
peratively demanded by the necessities of war.”10 Frits Kalshoven sees this as an
early expression of the principle of proportionality.11 Article 27 of the Hague
Regulations refers to the special protection of certain civilian objects, and requires
belligerents to take
all necessary steps . . . to spare, as far as possible, buildings dedicated to reli-

gion, art, science, or charitable purposes, historic monuments, hospitals, and
places where the sick and wounded are collected, provided they are not being
used at the time for military purposes.12
Tis article does not obligate an attack to be proportionate in the strict sense;
however, it does seem to allude to an obligation to minimize collateral harm to
certain types of civilian structures.13
Following World War I, which saw the frst use of aerial warfare, a commis-
sion of jurists met and drafed the “Rules of Air Warfare.” Tese Rules were never
adopted and were therefore not binding,14 but they did include one of the frst
formulations of proportionality in modern IHL:15
In the immediate vicinity of the operations of the land forces, the bombard-
ment of cities, towns, villages, habitations and buildings is legitimate, provided
there is a reasonable presumption that the military concentration is important
restriction of war to military targets is an important step in protecting civilians from attacks
directed at targets that may have a strategic value, but are still not military targets. Te concept
that “the only legitimate object which States should endeavour to accomplish during war is to
weaken the military forces of the enemy” (quoted from St. Petersburg Declaration, supra note
8, preamble) is the basis for the prohibitions in IHL prohibiting weapons that cause unneces-
sary sufering and also for the provisions forbidding the denial of quarter. Gardam, supra note
3, at 397.
10. Hague Regulations, supra note 9, art. 23(g).
11. Frits Kalshoven, Remarks by Frits Kalshoven, 86 Am. Soc’y Int’l L. Proc. 40, 41 (1992).
12. Hague Regulations, supra note 9, art. 27.
13. Kalshoven, supra note 11, at 42. Causing the least harm possible is a sub-test of proportion-
ality in general, and its existence in the jus in bello principle of proportionality is contested. For
further reading, see Chapter 2.
14. Tese rules were later held to be “authoritative of the law of air warfare,” and the rules,
along with (uncited) state practice, form the basis for the determination that the use of nuclear
weapons on the cities of Hiroshima and Nagasaki in August 1945 had been in violation of inter-
national law. Shimoda v. Te State, 8 Jap. Ann. Intl L. 212 (1964) [Jap.].
15. Rogers, supra note 3, at 194.
enough to justify the bombardment, taking into account the danger to which the
civil population will thus be exposed.16
Indeed, it was the advent of aerial warfare and bombing that brought a con-
siderably greater risk of harm to civilians than had existed previously.17 Te
non-binding 1938 Resolution of the League of Nations Assembly Concerning
Protection of Civilian Population against Bombing from the Air in Case of War
was also intended to protect civilians from the efects of aerial warfare, though it
is unclear if its provisions contained an absolute prohibition on civilian casualties
or were simply an attempt to minimize them:18
(1) Te intentional bombing of civilian populations is illegal;

(2) Objectives aimed at from the air must be legitimate military objectives
and must be identifable;
(3) Any attack on legitimate military objectives must be carried out in such
a way that civilian populations in the neighborhood are not bombed
through negligence . . .19
Regardless of the concerns regarding incidental civilian casualties that had arisen
in prior years, during World War II it was understood that “collateral injury to
the civilian population or damage to civilian objects was the ‘price of doing busi-
ness.’ ”20 Te war resulted in vast numbers of collateral civilian casualties. For
16. Article 24(4) Hague Rules concerning the Control of Wireless Telegraphy in Time of War
and Air Warfare, Te Hague, December 1922–February 1923, available at: ihl-databases.icrc.
org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=8F0205182641A279C
12563CD00518530 (emphasis added); Gardam, supra note 3, at 400–01.
17. Gardam, supra note 3, at 397. One should not mistakenly infer from this that civilians had
been spared the ravages of war before the invention of the aerial bombardment. It is clear that
siege warfare afected civilians as well as fghters, and civilians were also clearly the victims of
repeated violations outside of sieges as well. One example of the severe sufering of civilians
during war is the Crusader conquest of Jerusalem in 1099, which saw the wholesale slaughter
of the non-Christian civilians and fghters of the city (Muslims and Jews). One description of
the event relates that “Citizens and soldiers fed to the Temple Mount, pursued by Tancred [de
Hauteville] and his men. . . . In the Temple Mount, . . . they rode in blood up to their bridles.
Indeed, it is a just and splendid judgment of God that this place should be flled with the blood
of unbelievers.” Simon Sebag Montefiore, Jerusalem: The Biography 221–22 (2011) .
18. Fenrick, supra note 3, at 96.
19. Protection of Civilian Populations against Bombing from the Air in Case of War, September
30, 1938, Resolution of the League of Nations Assembly, O.J. Spec. Supp. 182, at 16; Fenrick,
supra note 3, at 96.
20. Parks, supra note 4, at 56 (cited in W.J. Fenrick, Targeting and Proportionality during the
NATO Bombing Campaign against Yugoslavia, 12 EJIL 489, 494 (2001)). For example, Parks
notes that though estimates vary, the number of German civilian deaths caused by Allied
bombing between 1943 and 1945 is high, ranging from some 250,253 civilians to 600,000. Tose
numbers, however, account for only some 20–40% of German civilian casualties during the war
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himself interested in the propagation of this faith, and, with Lady Om,
he has given large sums to the restoration of certain dilapidated
temples without the city. All things considered, Buddhism has left
such a mark upon the history of the little kingdom that, although the
purely ethical character of the teachings of Confucius be
acknowledged, Korea must be classed among the Buddhist
countries of the earth.
AN ALTAR-PIECE
CHAPTER XX
The Abomination of desolation—Across Korea—The east coast—Fishing and filth
The peace, piety, and sublime earnestness of the monks of the

monasteries of Yu-chom and Chang-an is in startling contrast to the
state of things at Shin-ki-sa. The magnificence of Yu-chom-sa, and
the charitable benevolence of Chang-an-sa, engender a mood of
sympathetic appreciation and toleration towards those, whose lives
are dedicated to the service of Buddha, in these isolated retreats of
the Diamond Mountains. The spectacle presented by the monastery
at the north-eastern base of the Keum-kang-san, however, reveals
the existence of certain evils which happily do not disfigure the more
important Buddhist centres in this region. It is not time which alone
has brought about the disorder; nor would the material decay be so
lamentable if the dignity and charm of a picturesque ruin were not
lacking. The tone of the monks here is totally different. Everything is
neglected, and every one is indifferent to the needs of the temples. A
litter of broken tiles lies about the buildings; dirt and dust, the natural
consequences of carelessness and neglect, disgrace them within.
The spirit of reverence is wanting. The scene is changed.
Shin-ki is a small monastery. Perhaps its temples have never been
comparable with the shrines of Yu-chom-sa in grace and beauty.
Nothing, however, can excuse the disorder and neglect of its court-
yards, and the slovenliness of the temple service. There seems to be
nothing in common between this and those other monasteries, which
rest within the heart of the ranges. One looks in vain for the courtly
dignity of the aged Abbot of Yu-chom-sa, whose humanitarian spirit
was so impressive. The principles of consideration, politeness, and
devotion that govern his conduct are sadly lacking in the Abbot, the
priests, and monks attached to Shin-ki-sa. The contrast is indeed
great. The most painful emotions are excited by the decline which
has taken place in the prosperity of the temples. Anger and sorrow
fill the soul. As one gazes beyond the temples into the peace and
beauty of the valley below, it is as if one were looking across from a
place of abomination into another and a better world. The colourless
skeleton of the past alone remains, and one longs for the power to
restore the fabric to its former self.
In its setting the monastery has caught something of the spirit of
nature. If there is any compensating element in its decadence, it is
found in the wild beauty of the rugged mountains, which tower above
it from across the valley. Beyond their granite faces lie the trials and
tribulations of the outer world; once enclosed within their grey
embrace the little ironies of life disappear. The hours are cool and
undisturbed. Primeval forests adorn the deep gullies of the ranges; a
flood of colour comes from the open spaces where wild flowers are
growing and the tints of the woodland foliage disclose an endless
variety of green. In the centre of a patch, cleared of its undergrowth
and approached by a path winding through deep woods, is Mum-sa-
am. This retreat is given over to the twenty nuns who are associated
with Shin-ki-sa. I know nothing of their lives, but from the state of
their temples, and the roughness and disorder of their surroundings,
it did not appear to me that they, any more than the sixty priests,
monks, and boys of the lower monastery, find the tenets of Buddha
very elevating, or derive much satisfaction from the surrounding
scenery.
SHIN-KI-SA
The history of our days in the more important monasteries of the

Diamond Mountains was uneventful. The anxious care and solicitude
of the monks for the welfare of their guests was hourly manifested,
and some kindly attention was shown to us at every possible
opportunity. Cool and lofty quarters were allotted for our
entertainment; the resources of the monastery were placed at our
disposal. The Abbot of Chang-an-sa prepared draughts of honey-
water and cakes of pine-seeds for our refreshment. Every morning
supplies of honey, rice, and flour, and small bundles of fresh
vegetables were brought to the table; throughout the day nothing
was left undone, which, in the minds of these simple men, would be
conducive to our comfort. A deep pool in the tumbling mountain-
stream was reserved for our use, and when, in the fresh air of the
morning, and again when the cool winds of the evening had
tempered the heat of the day, we went to bathe, the Abbot, upon his
own initiative, arranged that we should be left in undisturbed
possession of the water-hole.
The Temple, which we occupied during our stay at Chang-an-sa,
contained The Altar of the Three Buddhas. The building was
spacious and impressive. A wide verandah surrounded it, teak pillars
supported a massive roof; scrolls and allegorical pictures, illustrating
incidents in the life of Buddha, decorated the wall. Layers of oiled
paper carpeted the floor; an altar cloth of silk, richly embroidered,
small mats, bronze incense bowls and brass candelabra,
embellished the altar, in the centre of which was a large gilt image of
the Three Buddhas. Every evening at sunset, the monks who
officiated in this Temple placed bowls of rice, honey, and pine-seed
cakes upon the altar, and lighted the small lamps and candles which
illuminated it. Prayers were not always said, nor were the services
always the same, the numbers of the monks varying nightly
according to the character of the special office. When the services
concluded, there were many who found something to attract them in
our small encampment. They gathered round the kitchen; they
assisted the interpreter to cook, and tasted his dishes. They handled
with amazement the cooking utensils of a camp-kitchen, the cutlery
of a traveller’s table. Occasionally, as their increasing familiarity
brought about some small degree of intimacy between us, the monks
would display their beads and alms-bowls for our inspection,
requesting our acceptance of copies of their books in return for
photographs of their temples. The intricacies of a camera delighted
them, the appearance of a sporting rifle created consternation in
their breasts, and they were never tired of swinging in my camp-bed.
THE ABBOT AND MONKS OF CHANG-AN-SA
Before the camp at Chang-an-sa was shifted to Yu-chom-sa, a fast

friendship, engendered by many kindly acts and the uninterrupted
expression of a thoughtful consideration for our needs, sprung up
between the monks and ourselves. They consulted us about their
ailments, which usually took the shape of an acute attack of
indigestion or a form of intermittent dysentery. My medicines were
limited to some quinine pills and a bottle of fruit salts; they accepted
either prescription with gratitude and much melancholy philosophy.
But although they remained always the same well-disposed visitors
to our camp, I noted that they did not frequently present themselves
as candidates for treatment again. When the moment came for our
departure, many small gifts were pressed upon us. For a long time,
too, it seemed as if it would be impossible to obtain an account of
our indebtedness to the monastery. In the end the persuasion of the
interpreter prevailed. When we added to the reckoning a few dollars
for the funds of the monastery, the expressions of gratitude and
appreciation, to which our little gift gave rise, made it almost possible
to believe that the kindness and hospitality shown had been all on
our side.
Our quarters at Yu-chom-sa were in no sense inferior, and none
the less delightful in their situation, to those which we left behind at
Chang-an-sa. The guest-house in Yu-chom-sa affords views of the
mountain torrent as it dashes through the boulder-strewn, tree-clad
slopes of the valley. At Chang-an-sa we camped beneath the
protecting eaves of the spacious verandah which surrounds the
Temple of The Three Buddhas, avoiding whenever possible any
general use of the sacred edifice. In the case of Yu-chom-sa, this
diffidence was unnecessary; the building placed at our disposal
being that usually set aside for the requirements of those persons of
official position who might be visiting the monastery. The apartments
were clean, comfortable, and bright. They were hung with tablets,
upon which had been inscribed the names and dignities of previous
visitors. High walls enclosed the buildings, and massive gates
preserved the compound from unexpected intrusion. The life in these
encampments is one of ideal peace and happiness. It was possible
to work undisturbed and unprovoked by any harrowing influences.
Indeed, there was no suggestion of any other existence. We lived in
the seclusion of a sanctuary, where mortal misgivings had not
penetrated, and where the tribulations, which oppress mankind, were
unknown.
Beyond Shin-ki-sa, a journey of fifteen li, a well-made road leads
east north-east to the coast, which it touches at Syöng-chik. The
sight and scent of the sea, after the exhausting discomforts of Shin-
ki-sa, was peculiarly welcome. Between Yu-chom-sa and Shin-ki-sa
the country is intersected with marshes and rice-fields. The
difficulties of marching through these bogs and mud-holes greatly
impeded the horses. The road by the coast, if rough and stony in
places, is at least free from these obstacles, affording a tortuous, but
none the less pleasant, course. Wending across basaltic slopes,
ascending their smooth surfaces by a series of roughly-hewn steps,
it drops to a level of burnished sand. A sweep inland to the west and
south-west avoids the rugged spurs of a neighbouring range. The
sea licks the white sand with gentle murmurs and the slight breeze
scarcely ripples the blue surface, the constant variations, which the
golden sands and glittering sea, the open valleys and green hills
present, adding to the charm and freshness of the journey. The
feeling of isolation, inseparable from travel in regions where the
sense of freedom is shut out by a world of enclosing mountains, is at
once lost in contact with the ocean and the ships that go down to it.
Far out, in the great expanse of the peaceful sea, were fishing-boats,
grey junks, hull down upon the horizon, their brown sails bellying
spasmodically in the fitful gusts of the breeze. In the shallows off-
shore men, brown and naked, dragged for herring and sprat while
their children gathered crabs, diving after their victims in the deep
pools with screams of delight.
Around the hovels, in all these clusters of small villages by the
waves, men slept in the blazing sunshine. While their lords reposed,
the women mended the rents in the nets, or busied themselves in
constructing crude traps, with the aid of which their husbands
contrived to catch fish. The aspect of these villages upon the beach
was not inviting; and they did not compare favourably with any of the
inland villages through which we had passed. They were dirty,
tumble-down, and untidy; the appearance of the people suggested
great personal uncleanliness. The air was laden with the smell of fish
drying in the sun—of itself a pleasant perfume, smacking of the salt
of the sea—but here so mingled with the odours of decaying offal,
piles of rubbish, and varieties of fish and seaweed in different stages
of decomposition that the condensed effluvium was sickening. The
people, however, were neither curious nor unkindly; for the great part
they were indifferent, offering baskets of fresh eggs, fish, and
chickens readily for sale. The beach by these villages was black with
rows of fish, drying, upon the white sand, in the most primitive
fashion. The art of smoking fish is unknown, and the careless
manner in which the curing is done proves that the treatment has
neither principle nor system. Dogs lay upon these rows of fish, fowls
feed undisturbed off them, and, in many places, men slept peacefully
with a number of them heaped together, to serve as pillows for their
weary heads. Where such neglect prevails, it is perhaps not
unnatural that much of the disease among the Koreans should be
attributed to the dried fish which they eat so greedily.
The trade in salted and sun-dried fish is extensive and finds its
way all over the kingdom; an overland traffic of considerable
importance exists with the capital. Strings or stacks of dried fish are
to be seen in every village. Pack ponies, and coolies laden with
loads of dried fish, are met upon every road in the kingdom. The
pedestrian who “humps his own swag” almost always carries a small
stock with him. The parallel industry to the business of curing fish is
the operation of making salt from sea-water, a pursuit which is
conducted in a manner equally rough and casual. In both of these
industries there is a crying need for simple technical instruction, as
well as for capital, the lack of which hinders the work from achieving
any particular success. There is so much fish in the sea along the
coast, that, if the catches were properly treated, the beginning of a
prosperous export trade could be readily laid. At the present only a
bare sufficiency is secured, the days of prosperity not yet having
begun to dawn. The industry is completely paralysed by the
exactions of the officials; the fishermen, like the peasants, knowing
only too well that an immunity from the demands of the Yamen is
found only in a condition of extreme poverty.
Many fishing villages were passed through in the journey from the
Diamond Mountains. Each seemed to reflect the other, the sole
difference between them lying in their size, the number of fishing-
boats drawn up on the beach, the strength and density of their
smells. The poverty and squalor of these hamlets was astonishing.
The people seemed without spirit, content to live an idle, slatternly
existence in sleeping, yawning, and eating by turns. Despite offers of
payment, it was impossible to secure their services in a day’s fishing,
although they generally admitted that the boats, nets, and lines were
not otherwise engaged. As the outcome of this spirit of indifference
among the natives, Japanese fishermen are rapidly securing for
themselves the fishing-grounds off the coast. Unless these dreary,
meditative, and dirty people arouse themselves soon, the business
of fishing in their own waters will have passed altogether from their
hands. The Japanese catch fish at all seasons; the Koreans at one
only—when it suits them. They have consequently a diminishing
influence in a trade so exceedingly profitable that some ten thousand
Japanese fishing-boats subsist by it.
A FAIR MAGICIAN
The filthy condition of the villages renders any stay in them
perilous. It is wiser to camp beyond them in the open. It was my
misfortune to stay in several, but in the village of Wha-ding, seventy-
five li from Won-san, the virulence and variety of the insects
surpassed all my experience in Australia, America, Africa, or Asia.
Fleas were everywhere; they floated through the atmosphere, much
as the north-west winds of New Zealand and the hot winds of Africa
drive particles of fine sand through the air. In this case, however,
nothing remained without its thin penetrating covering of fleas. One
night in Wha-ding stands out as the most awful of these experiences.
It was impossible to stand; it was impossible to sit; sleep was out of
the question. We shook our clothes; we bathed and washed and
powdered. Every effort was a torture, and each precaution increased
the ironies of the situation. To add to the plagues of this accursed
place, we were deafened by the ear-splitting incantations of a
sorcerer, who had been hired by the proprietor of the village inn to
exorcise a devil that had bewitched him. We wondered, afterwards,
whether this accounted for the damnable activity among the vermin.
After a futile attempt to come to terms with the magician by bribery
and corruption through the medium of my interpreter, it was arranged
that one of the grooms should represent the evil spirit. He passed
out into the desolation of the night and howled plaintively, while we,
having collected the elders and the necromancer, solemnly fired our
revolvers into the darkness at the departing spirit. Unfortunately, we
did not convince the wizard that the devil had been expelled. It was
not until, losing my temper and my reason together, I dropped his
gongs and cymbals down a well, depositing him in it after them, that
we were rid of the agonies of this additional nuisance.
WITHOUT THE WALLS OF SEOUL
CHAPTER XXI
Drought—Starvation—Inland Disturbances—Rainfall and disease
It is difficult for us in England to understand how far-reaching may

be the evils, resulting from the complete failure of the rainfall, in
countries where the population relies upon it for their daily bread. A
brief mention, in the Press, of the lateness of the monsoon gives no
sign of the anxiety with which many millions of people are regarding
the approaching harvest. Water means life to the rice-fields, and a
drought implies, not alone the failure of a staple crop, but famine,
with disorder and starvation, disease and death, as its
accompaniments. A drought in the rice-fields makes a holocaust of
the people in the winter. The forces of law and order at the disposal
of the Government of India place some restraint upon the populace.
In the Far East, where the civil administration is incompetent to deal
with the exigencies of the situation, and the systematic dispensation
of relief is unknown, the decimation of the population and the
complete upheaval of the social fabric follows closely upon the
break-down in nature. Indirectly, too, the consequences of famine in
India prove this.
An even more emphatic evidence of the effects of a drought,
where the population live upon the rice crop, is afforded by the
appalling loss of life and the grave eruption of disorder, which took
place in Korea as the consequence of the famine in 1901.
Widespread ruin overtook the country; the inland districts were
thronged with mobs of desperate people. Persons, normally peace-
loving and law-abiding, banded together to harass the country-side,
in the hope of extorting sufficient food to keep their families and
themselves from starvation. Hunger drove whole communities from
the villages to the towns, where no provision for their welfare existed.
Anarchy prevailed throughout the country, the dire needs of the
population goading them to desperation. A horde of beggars invaded
the capital. Deeds of violence made the streets of Seoul unsafe after
darkness, and bandits carried on their depredations openly in the
Metropolitan Province. From a peaceful and happy land of sunshine
and repose, Korea was transformed, in a few months, into a
wilderness of misery, poverty, and unrest.
The measures for relief were quite inadequate, and although rice
was imported, large numbers of the people, lacking the money with
which to buy it, starved to death. The absence of an efficient
organisation in the face of this further disaster increased the
confusion. Before any arrangements could be made for their relief,
several thousands had died. More than 20,000 destitute people were
discovered in Seoul, out of a population of rather less than 200,000.
Reports from the provincial centres disclosed a relapse into a state
of absolute savagery in many rural districts. Famine, pestilence, and
death stalked abroad in Korea for months, and many, who escaped
starvation, lost their lives subsequently in the great wave of disease
which swept over the land.
THE TEMPLE OF HEAVEN, SEOUL

It is impossible to believe that the famine would have assumed its
late proportions had the Government of Korea maintained its
embargo against the exportation of cereals from the country. There
can be no doubt that the withdrawal of this prohibition contributed to
the scarceness of the food-stuffs which were procurable by the
people, when their straits were most severe. Mortality returns from
the areas devastated by the famine prove that the welfare of more
than one million persons was affected. The action of Japan,
therefore, in insisting upon the suspension of the prohibition in order
that the interests of some half-dozen Japanese rice merchants might
not suffer, deserves the utmost condemnation. The primary
responsibility for this great loss of life rests entirely with the
Japanese Government. In terrorising the Government of Korea into
an act, the consequences of which brought death to one million
people, the Japanese Government committed themselves to a policy
which traversed alike the dictates of reason and common sense, and
outraged every principle of humanity. The impartial observer must
hold Korea guiltless in this matter. It is, indeed, deplorable that the
vehement opposition of the Korean Government was not respected.
Nevertheless, the incident is valuable, as an illustration of the
objectionable attitude which distinguishes the Government of Japan
in its relations with Korea.
At the beginning of the drought the inhabitants of Seoul believed
that the Rain God was incensed. The Emperor and his Court offered
expiatory sacrifices upon three occasions. As the rains were still
withheld a period of penance was proclaimed, in which prayers and
fastings were ordained, the populace ceasing from every form of
labour and relapsing into a condition of supreme idleness. Unhappily,
while the great mass of the people refrained from work, the Emperor
continued to employ many hundreds of labourers upon the
construction of the new Palace buildings. This proceeding was held
by the superstitious subjects of His Majesty to account for the
singular inclemency of the Rain Demon, and some anxiety was felt in
the capital lest the usual calm of the city should be broken by riots.
These horrors were spared to Seoul, however, by the fortuitous
visitation of a passing shower. Men and women resumed their toil,
rejoicing in the belief that the evil influences had been overcome. It
was, however, but a brief respite only that was granted. In a short
time the drought prevailed throughout the land, drying up the rice-
fields, scorching the pastures, and withering the crops. Under this
baneful visitation, the circumstances of the people became very
straitened. Hundreds were reduced to feeding off the wild roots and
grass of the wayside, and isolated cases of cannibalism were
reported.
The exceptional character of the drought lends interest to the
hydrometrical records for Chemulpo from 1887 to the middle of
1901, which were forwarded to the bureau by the correspondent of
the Physical Observatory, St. Petersburg. The rain-fall given is for
the years 1887 to 1900, inclusive, and the first half of 1901; the
snow-fall is reduced to the proportion of water which the melted
snow would make. Professor H. Hulbert has pointed out, however,
that in estimating what is or what is not a proper amount of rain, it is
necessary to know in what season of the year the rain has fallen.
Thirty inches of rain in November would be of less value to the rice-
fields than half that amount if it fell in June. In the cultivation of rice,
rain must fall at the proper time. Otherwise it is valueless, and,
although adding to the actual measurement of the fall, a very
considerable deluge, under these conditions, would be of no material
advantage to agricultural interests.
HYDROMETRICAL RECORD
YEARS RAINFALL SNOWFALL TOTAL FOG RAIN SNOW

inches
1887 30.86 2.00 32.86 13d 3h 19d 17h 4d 2h
1888 20.91 2.15 23.06 14d 5h 12d 6h 3d 3h
1889 28.18 0.91 29.09 25d 13h 25d 5h 5d 9h
1890 47.00 1.06 48.06 12d 18h 27d 10h 0d 64h
1891 41.04 1.66 41.70 13d 5h 30d 20h 3d 7h
1892 34.04 1.20 35.24 15d 20h 16d 10h 4d 6h
1893 50.64 3.55 54.19 31d 5h 36d 6h 8d 11h
1894 31.81 0.64 32.45 33d 18h 21d 9h 1d 8h
1895 31.88 2.06 33.94 32d 7h 29d 11h 6d 17h
1896 31.08 5.15 36.23 51d 7h 27d 0h 2d 0h
1897 48.35 3.23 51.58 24d 5h 31d 17h 4d 18h
1898 37.80 4.73 42.53 31d 14h 29d 19h 5d 15h
1899 25.07 2.05 27.12 — — 18d 19h 1d 3h
1900 29.14 0.83 29.97 — — 21d 2h 0d 20h
1901 7.09 0.06 7.15 7d 5h 3d 7h 2d 0h
I give, also, the rainfall during the years 1898-1901, at the period
when a plenteous rain is of supreme importance to the rice industry:
Year June July August Total

1898 4.5 10.0 11.0 25.5
1899 8.5 7.5 6.7 22.7
1900 2.0 6.2 4.5 12.7
1901 0.3 2.7 1.1 4.1
In a rice-growing country such as this is, it is essential that an

adequate supply of rain should fall during the three summer months
to allow of the seed-rice being transplanted and to ensure the
maturing of the grain. In 1901, owing to the lack of water, the bulk of
the seed-rice was never transplanted at all. It simply withered away.
It is, of course, inevitable that one of the immediate results of
famine should be a general increase of mortality throughout the
country. The impoverished condition, to which so many thousands of
Koreans were reduced, weakened their constitutions so seriously
that, in many cases, even those who were fortunate enough to
escape starvation found their powers fatally impaired. There were
many whose inanition and general debility, resulting from their
deprivations, had rendered them peculiarly susceptible to disease.
More particularly was this the case in the inland districts.
Under normal conditions, malaria is, perhaps, the most common
disease in Korea. It prevails in all parts of the country, but it is
specifically localised in sections where there are numerous rice-
fields. Small-pox is nearly always present, breaking out in epidemic
form every few years. Nearly all adults, and most children over ten
years, will be found to have had it. Leprosy is fairly prevalent in the
southern provinces, but it spreads very slowly. While this disease
presents all the characteristics described in the text-books, the
almost imperceptible increase, which distinguishes its existence in
Korea, is strong presumptive evidence that it is non-infectious.
The great enemy of health is the tubercle bacillus. The want of
ventilation, the absence of sanitation, and the smallness of the
houses, foster this little germ. Tubercular and joint diseases are
common; also fistula, hare-lip, diseases of the eye, throat and ear.
The most common disease of the eye is cataract; of the ear,
suppuration of the middle drum, in the great majority of cases the
result of small-pox in childhood. Cases of nasal polypi are also very
numerous. Hysteria is fairly common, while epilepsy and paralysis
are among other nervous disorders which are encountered.
Indigestion is almost a national curse, the habit of eating rapidly
large quantities of boiled rice and raw fish promoting this scourge.
Toothache is less frequent than in other countries; diphtheria and
typhoid are very rare, and scarlet fever scarcely exists. Typhus,
malarial remittent fever, and relapsing fever are not uncommon.
Venereal disease is about as general as it used to be in England.
In short, there is a preponderance of diseases which result from
filthy habits, as also of those produced by the indifferent qualities of
the food, and the small and over-crowded houses. Most of the
diseases common to humanity present themselves for treatment in
Korea.
AN IMPERIAL SUMMER HOUSE
Erected to mark the spot where the corpse of the late Queen
was burned by the Japanese.
CHAPTER XXII
The missionary question—Ethics of Christianity—Cant and commerce—The
necessity for restraint
The history of missionary enterprise in Korea abounds in

illustrations of the remarkable manner in which French missionaries
may be relied upon to offer up their lives for their country. It may be
cynical to say so, yet there is much reason to believe that the Roman
Catholic priests in the Far East of to-day are the agents provocateurs
of their Government. They promote anarchy and outrage, even
encompassing their own deaths, whenever the interests of their
country demand it. From the beginnings of Christianity in China they
have wooed the glory of martyrdom, and they have repeated the
process in Korea.
A BRIDGE SCENE IN SEOUL

Christianity made its way into Korea about 1777, by the chance
arrival of a packet of translations in Chinese of the works of the
Jesuits in Pekin. From this small beginning the ideas spread, until
the King’s Preceptor was compelled to fulminate a public document
against this new belief. Finding this insufficient, examples were
made of prominent enthusiasts. Many were tortured; and others
condemned to perpetual exile. Persecution continued until 1787; but
the work of proselytism proceeded, despite the injurious attentions
which converts received from the public executioners.
The first attempt of a foreign missionary to enter Korea was made
in 1791. It was not until three years later, however, that any Western
evangelist succeeded in evading the vigilance of the border
sentinels. Where one came others naturally followed, undeterred by
the violent deaths which so many of these intrepid Christians had
suffered. While the French missionaries were prosecuting their
perilous labours, in the face of the undisguised hostility of the great
proportion of the people, and losing their lives as the price of this
work, the walls of isolation which Korea had built around herself
were gradually sapped. Ships from France, Russia and Great Britain
touched her shores during their explorations and trading ventures in
the Yellow Sea. Under the association of ideas which sprang from
the appearance of these strange ships, the Koreans grew
accustomed to the notion that their world was not limited by the
resources of their own country and the more distant territories of
China. However, judging the sailors who fell into their hands by the
standards of the French priests, who had set every law in the land at
defiance, they at once killed them. This practice continued until
1866, when word reached the Admiral of a French squadron at
Tientsin of the slaughter of his compatriots in Korea. Upon receipt of
the news, an expedition was prepared, of itself an early
manifestation of that policy by which the French Government is
inspired in its dealings with missionaries and missionary questions in
countries, the development of whose geographical or industrial
peculiarities may be turned to advantage.
For many centuries the land was without any accepted religious
doctrine. Buddhism, which existed for one thousand years before the

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Proportionality in International

Humanitarian Law: Consequences,

The Early Books of Yehuda Amichai Yehuda Amichai

Cryptocurrencies in Public and Private Law David Fox

Language and Legal Interpretation in International Law

International Law and Development in the Global South

The American Pageant AP 17th Edition David M. Kennedy

International Law of Taxation (Elements of

Appropriating Hobbes: Legacies in Political, Legal, and

Territorial Status in International Law Jure Vidmar

Professor Chris Jenks

Dr. Sasha Radin

Published in the United States of America by Oxford University Press

© Oxford University Press 2021

You must not circulate this work in any other form

Library of Congress Cataloging-​in-​Publication Data

(Based on the Declaration of Principles jointly adopted by a Committee of the

PART I: General Concepts

2. Ethical and Constitutional Foundations 11

3. A General Overview of Proportionality in IHL 23

B. Contemporary IHL and Proportionality 29

PART II: Te Practical Application of Proportionality

5. Incidental Harm and the Analysis of Proportionality 73

6. Soldiers vs. Civilians 107

7. Strategic and Cultural Considerations 119

C. Who Bears the Burden of Accommodating a State’s Sensitivities? 125

8. Direct Participation in Hostilities and Its Efect on Proportionality 135

9. Human Shields and Proportionality 145

C. Voluntary Human Shields 149

10. Te Principle of Distinction and Its Relation to Proportionality 155

PART III: Understanding Proportionality

12. Procedural Aspects of Proportionality 177

13. Judicial Review and Investigations 201

14. Te Future of Proportionality 223

Conclusion—A Way Forward? 231

principle of proportionality is at once a philosophical principle, a political neces-

CONVENTIONS AND TREATIES

Geneva Convention Relative to the Protection of Civilian Persons in Times

Booby-​Traps and Other Devices (Protocol II), Geneva, Oct. 10,

Second Optional Protocol to the 1954 Hague Convention for the

INTERNATIONAL COURT OF JUSTICE -​ CONTENTIOUS CASES

INTERNATIONAL CRIMINAL TRIBUNAL FOR FORMER

Jurisdiction (Oct. 2, 1995)�������������������������������������������������������������������������� 34 n.55

Prosecutor v. Limaj, ICTY Trial Chamber II, IT-​03-​66, Judgment

EUROPEAN COURT OF HUMAN RIGHTS

A. v. U.K., E.Ct.H.R., App. No. 3455/​05 (2009)���������������������������������������������� 46 n.95

US MILITARY TRIBUNAL NUREMBERG

INTER-​A MERICAN COURT OF HUMAN RIGHTS

SPECIAL COURT FOR SIERRA LEONE

ETHIOPIA-​E RITREA CLAIMS COMMISSION

JUDGMENTS OF NATIONAL COURTS

HCJ 3003/​18, Yesh Din –​Volunteers for Human Rights v. Te IDF

T his part of the book presents the general concept of proportionality

prominence of the principle of proportionality, especially, its hold on the “imag-

4. Tomas M. Franck, On Proportionality of Countermeasures in International Law, 102 A.J.I.L.

9. Commentary on the Additional Protocols of 8 June 1977 to the Geneva

Bruno Zimmerman eds., 1987) [AP-​I Commentary].

Article 57(2) of AP-​I further requires attackers to take precautions prior to an

24. AP-​I, supra note 6.

Te Rome Statute classifes disproportionate attacks as a war crime, if com-

Altogether, the principle of proportionality is widely understood to constitute

C. THE STRUCTURE OF THE BOOK

chapters. Chapters 6 and 7 discuss issues pertaining to the military advantage

Library of Congress Cataloging-in-Publication Data

Booby-Traps and Other Devices (Protocol II), Geneva, Oct. 10,

INTERNATIONAL COURT OF JUSTICE - CONTENTIOUS CASES

Jurisdiction (Oct. 2, 1995)�� 34 n.55

Prosecutor v. Limaj, ICTY Trial Chamber II, IT-03-66, Judgment

A. v. U.K., E.Ct.H.R., App. No. 3455/05 (2009)�� 46 n.95

INTER-A MERICAN COURT OF HUMAN RIGHTS

ETHIOPIA-E RITREA CLAIMS COMMISSION

HCJ 3003/18, Yesh Din –Volunteers for Human Rights v. Te IDF

Bruno Zimmerman eds., 1987) [AP-I Commentary].

Article 57(2) of AP-I further requires attackers to take precautions prior to an

24. AP-I, supra note 6.

C. THE STRUCTURE OF THE BOOK

A. THE POSSIBLE SOURCES FOR PROPORTIONALITY

B. A PHILOSOPHICAL AND RELIGIOUS PRISM

C. THE RATIONAL ANALYSIS OF PROPORTIONALITY

proportionality—specifcally, how they weigh the opposing values of military ad-

D. PROPORTIONALITY AS A MODE OF CONTROL

Bonchek, Analyzing Politics: Rationality, Behavior, and Institutions 360–70 (1997)

E. THE CONSTITUTIONAL AND ADMINISTRATIVE

A. THE HISTORY AND DEVELOPMENT OF IHL