vaipan_g_v_disser

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attacking party must have stopped to pursue the initially anticipated military advantage (meaning it cannot include this particular kind of military advantage into the proportionality calculus) –> an argument that an attacked party may not include these particular adverse effects on civilians into the proportionality calculus –> and so on. Taken together, these moves create and sustain circular proportionality argument about any individual attack.404 I will now look at the practice of international courts to examine the dynamics of such argument more closely.

Operation Allied Force

In 1999-2000, an ad hoc сommittee established by the Prosecutor of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) to review the legality of the NATO bombing campaign against Yugoslavia (the so-called

Operation Allied Force), including its compliance with the principle of proportionality. In order to compare civilian losses and military advantage, the committee relied on an overall relationship between the number of sorties flown by military aircraft (a total of 38 400 sorties, including 10 484 strike sorties, with a total of 23 614 air munitions released) and the number of civilian casualties (approximately 500 civilians).405 However, this factual picture was methodologically dubious for at least two reasons. First, the committee compared the overall civilian casualties with the mission and results of the campaign as a whole, instead of looking at the relationship between advantage and harm per each

404Ironically, as soon as a particular attack ceases to be “self-evident” (that is, becomes a matter of disagreement), IHL scholars immediately concede that “[t]his type of situation may confront the military commander with an agonizing dilemma in which the law cannot provide a clear-cut answer”, and suggest to “leave this question to the contestants in the Jessup Competition” – meaning that proportionality analysis becomes solely a matter of legal argument (Kalshoven F. Op. cit., p. 44-45).

405I.C.T.Y. Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia. §§ 53-54. URL: http://www.icty.org/en/press/final-report-prosecutor- committee-established-review-nato-bombing-campaign-against-federal#IVA64d. One of the Report’s authors, William Fenrick, subsequently calculated that the ratio of civilian deaths was 0,08 per ton of bombs dropped. According to the author, this figure was substantially smaller than those for air raids during the Second World War. See Fenrick W.J. Targeting and Proportionality during the NATO Bombing Campaign against Yugoslavia // European Journal of International Law. 2001. P. 489-502, 493.

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specific episode of the air campaign.406 Second, the committee’s factual comparison implicitly construed “military advantage” so as to include the zero-casualty factor: due to the chosen tactic of high-altitude flights (above 15 thousand feet), NATO countries managed to avoid casualties among their military personnel. This formula of proportionality was challenged407 with an argument that greater safety for armed forces was achieved at the expense of higher risks for the civilian population: in a number of cases, civilian casualties could have been avoided had the aircraft carried out strikes at a lower altitude.408 These considerations moved the discussion into values: to what extent military operations based on targeted airstrikes make war more humane or vice versa?409 And, speaking of a fair balance between military necessity and humanity, where should a line be drawn between indeterminacies of possible incidental civilian harm that must preclude a planned strike and indeterminacies that do not?410 To justify their value perspectives, the parties to a

406See Final Report. §§ 52 (defining proportionality as “an overall assessment of the totality of civilian victims as against the goals of the military campaign” (emphasis in original. – G.V.), 56 (finding that “the obligation to distinguish was effectively carried out in the vast majority of cases during the bombing campaign”) (emphasis added.

– G.V.). For a criticism of this approach, see Benvenuti P. The ICTY Prosecutor and the Review of the NATO Bombing Campaign against the Federal Republic of Yugoslavia // European Journal of International Law. 2001. P. 503-529, 518-519 (noting that “we need to know from the Committee what happened in the small minority of cases where even specific and sporadic conduct may have amounted to a war crime”) (emphasis in original. – G.V.).

407See, e.g.: Amnesty International. NATO/Federal Republic of Yugoslavia: “Collateral Damage” or Unlawful Killings? Violations of the Laws of War by NATO during Operation Allied Force. 2000. URL: https://www.amnesty.org/download/Documents/140000/eur700182000en.pdf. P. 16-18 (posing a rhetorical question: “Force preservation is a crucial concern for the military. But can this consideration take precedence over legal obligations to protect civilians?”).

408In its Report, the committee acknowledges this fact but does not explain why it should not matter in proportionality analysis. See, e.g.: Final Report. §§ 69-70 (considering that “it is difficult for any aircrew operating an aircraft flying at several hundred miles an hour and at a substantial height to distinguish between military and civilian vehicles in a convoy”, yet finding that “[w]hile this incident is one where it appears the aircrews could have benefitted from lower altitude scrutiny of the target at an early stage, the committee is of the opinion that neither the aircrew nor their commanders displayed the degree of recklessness in failing to take precautionary measures which would sustain criminal charges”). See also: Fenrick W.J. Op. cit., p. 501-502.

409Thus, Michael Bothe argued that the overall humanitarian goal of the campaign (the NATO military operation was claimed to be “humanitarian intervention”) should have tilted the balance between military and humanitarian considerations towards the latter in proportionality analysis. See Bothe M. The Protection of the Civilian Population and NATO Bombing on Yugoslavia: Comments on a Report to the Prosecutor of the ICTY // European Journal of International Law. 2001. P. 531-535, 535.

410For contrasting views, see: Rogers A.P.V. “Zero-Casualty Warfare” // International Review of the Red Cross. 2000. P. 165-181, 179 (arguing that “[n]o-risk warfare is unheard of”; if risk-taking by the military is not appropriate in the circumstances, then “[q]uite simply, the attack should not be carried out”); Fenrick W.J. Op. cit., p. 489 (arguing that

“[t]here are no such things as error-free wars or casualty-free wars”). In Prosecutor v. Kupreškić et al., the ICTY Trial Chamber formulated the following standard of proportionality: “[I]n case of repeated attacks, all or most of them falling within the grey area between indisputable legality and unlawfulness, it might be warranted to conclude that the

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dispute (if argument continued before a court or other forum) would need to turn to facts: e.g., on the one hand, to argue that alternative methods of warfare (such as ground operations) would lead to greater losses, including civilians;411 on the other hand, to point to the serious psychological terrorizing effect and/or the economic impact of aerial warfare on the civilian population,412 which in the case at hand was specifically waged to destroy the infrastructure of the then existing political regime in Yugoslavia. But the relevance of each of these factors would, in turn, also need to be substantiated (for instance, to what extent may negative psychological and indirect economic consequences be considered “harm” – and to what extent should they rather qualify as “military advantage” for being used to undermine popular support of the regime and thus to help a military operation succeed?413). And so on.

Prosecutor v. Gotovina, Čermak, and Markač

This case is one of the few where the analysis of proportionality in attack during an armed conflict was undertaken by an international court – in this case, ICTY.414

This case is also special because trial and appellate judges disagreed with each other

cumulative effect of such acts entails that they may not be in keeping with international law. Indeed, this pattern of military conduct may turn out to jeopardise excessively the lives and assets of civilians, contrary to the demands of humanity” (Prosecutor v. Kupreškić et al. Judgment. IT-95-16-T. Trial Chamber. 14 January 2000. § 526). In its Report, the ad hoc committee established by the ICTY Prosecutor refused to apply this standard to NATO bombings, essentially finding that it was a statement de lege ferenda. See Final Report. § 52.

411This point, among others, is now being fiercely debated in connection with the use of unmanned aerial vehicles as instruments of warfare. See, e.g.: Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston. Addendum. Study on targeted killings. §§ 79-86. U.N. Doc. A/HRC/14/24/Add.6 (2010).

412In particular, lawyers have criticized the committee’s failure to factor the effects of the destruction of civilian property (especially bridges) into the proportionality analysis of NATO actions. See, e.g.: Benvenuti P. Op. cit., p. 508-509.

413For contrasting views, see: Fenrick W.J. Op. cit., p. 491 (referring, in the context of NATO campaign in Yugoslavia, to a militaary theory according to which “one of the objectives of war-fighting is to affect adversely civilian support for the enemy war effort”); Benvenuti P. Op. cit., p. 508-509 (arguing that NATO actions “may be seen as a deliberate intent to conduct a campaign aimed at targeting (alleged) military objectives with the surreptitious (and intentional) goal of producing (enough) collateral damage … to the Serbian population[; s]uch damages would have brought the population to such an unbearable (but still proportionate and legitimate?) condition as to induce it to rebel against the government[; t]his reasoning appears to be a twisting of the rule in Article 57 of [Protocol I]…”).

414See Bartels R. Dealing with the Principle of Proportionality in Armed Conflict in Retrospect: The Application of the Principle in International Criminal Trials // Israel Law Review. 2013. P. 271-315 (finding that the Gotovina case is so far the only case in which an international court has actually applied the standard of proportionality under IHL to the facts of the case).

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on the subject-matter of the dispute – the proportionality of Croatian artillery attack on the residence of Milan Martić, political leader and supreme commander of the army of the Republic of Serbian Krajina, during Operation Storm in 1995.415

The ICTY Trial Chamber concluded that the attack on Martić was not proportionate. The Chamber acknowledged that “firing at Martić’s apartment could disrupt his ability to move, communicate, and command and so offered a definite military advantage”,416 but found that “the chance of hitting or injuring Martić by firing artillery at his building was very slight”.417 On the other hand, Martić’s residence was located in an apartment building within an otherwise civilian residential area, and at the time of the attack (morning hours) “civilians could have reasonably been expected to be present on the streets of Knin near Martić’s apartment”.418 The Chamber therefore considered that firing high-caliber shells at Martić’s apartment from a distance of more than 25 kilometres “created a significant risk of a high number of civilian casualties and injuries, as well as of damage to civilian objects”,419 and found that risk “excessive”.420

This determination of harm and advantage was, however, problematic. On appeal, the defence argued that the Chamber came up with a wrong proportionality formula: on the one hand, the Chamber could not rely on mere “risk” of harm in finding the attack excessive, given that there was no evidence of any civilians actually present in or around Martić’s location at the relevant time, and no evidence

415 See I.C.T.Y. Prosecutor v. Gotovina et al. Judgment. IT-06-90-T. Trial Chamber. 15 April 2011. § 1910; Prosecutor v. Gotovina et al. Appeal Judgment. IT-06-90-A. Appeals Chamber. 16 November 2012. § 82. Disagreements between ICTY judges (including within the same Chamber) on the issue of proportionality of this particular attack were part of the larger dispute about the overall lawfulness of Operation Storm against the town of Knin and its vicinity (see, e.g.: Prosecutor v. Gotovina et al. Appeal Judgment. IT-06-90-A. Appeals Chamber. 16 November 2012. Dissenting Opinion of Judge Carmel Agius; Dissenting Opinion of Judge Fausto Pocar).

416Gotovina Trial Judgment. § 1910.

417Ibid.

418Ibid.

419Ibid.

420Ibid.

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of any actual civilian death, injury, or damage to civilian property;421 on the other hand, the Chamber should have assessed proportionality of the attack by looking at the anticipated “overall” military advantage of getting at Martić in the context of

Operation Storm “as a whole” and not just in the context of this isolated episode.422

Here, the defence defined harm and advantage differently as compared to the

Chamber’s approach, thus changing the balance of values in the proportionality calculus.

But why should the balance have been construed that way and not any other? The prosecution responded on appeal that, first, “compliance with the law of proportionality is measured not by the results of an attack but rather by what the attacker reasonably expected before launching it”,423 so that in the case at hand the Chamber could have been satisfied with an anticipated risk of harm, stemming from the Croatian army’s knowledge of the civilian character of the targeted area and its minimal intelligence regarding the actual movements of the civilian population.424

Second, the prosecution insisted on a narrower definition of “military advantage”, not as the overall abstract value of firing at Martić as a political and military leader, but rather as the anticipated value of that particular attack which had only a “very slight”425 chance of hitting Martić in the actual circumstances of time and place. Doing otherwise, according to the prosecution, would confuse the issue of whether the attack at Martić was excessive with the issue of Martić’s status as a lawful target, and therefore “would render the concept of a proportionality analysis pointless”.426

421I.C.T.Y. Prosecutor v. Gotovina et al. Appelant’s Brief of Ante Gotovina. IT-06-90-A. 2 August 2011. § 86(i)- (iii).

422Ibid., § 86(iv). See also: Operational Law Experts Roundtable on the Gotovina Judgment: Military Operations, Battlefield Reality and the Judgment’s Impact on Effective Implementation and Enforcement of International Humanitarian Law // Emory University School of Law. Public Law & Legal Theory Research Paper Series. 2012. Research Paper No. 12-186. P. 9 (arguing that “[i]n the context of Operation Storm, Martić was perhaps the most valuable target in the city of Knin”).

423I.C.T.Y. Prosecutor v. Gotovina et al. Prosecuton Response to Ante Gotovina’s Appeal Brief. IT-06-90-A.

12September 2011. § 153.

424Ibid.

425Ibid., § 152.

426Ibid., § 154.

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We see that the prosecuton and the defence in the Gotovina case construed the balance between military and humanitarian considerations in two contrasting ways, using different “zooms” on the opposite sides of the scales. The defence zoomed in on civilian harm (prosecution must prove actual harm caused to specific civilians and civilian objects) and zoomed out on military advantage (it suffices to show an overall value of attacking an important political and military actor in the context of the whole military operation). The prosecution did just the opposite – it argued generalized civilian harm (general risk of harm is enough) and discrete military advantage (defence needs to show that the attacker could reasonably expect to hit the military target in the actual circumstances of time and place). The design of the principle of proportionality in IHL did not offer a way to prioritize one of these different value pictures to another, since it relied only on the abstract notions of military necessity and humanity – while the very dispute was about how to reconcile these values rightly in the case at hand. This led to each party using factual and value arguments alternately so as to substantiate their own positions and undermine their opponents’ positions.

So, in order to rebut the defence’s argument on “overall” military advantage in the context of military operation “as a whole”, the prosecution referred to the lack of any armed resistance by Knin’s defenders during Operation Storm427 – thus trying to prove that there was no real military necessity for the Croatian army to carry out these strikes.

This factual argument, in turn, was countered with a value argument that attacks on military and political leadership should be governed by a special standard of proportionality so as to count their “harassing and/or disrupting effect”428 as relevant

427I.C.T.Y. Prosecutor v. Gotovina et al. IT-06-90-A. Appeals Hearing. 14 May 2012. T.91 (pointing out that “the number of troops present in Knin was only about 150”). See also: I.C.T.Y. Prosecutor v. Gotovina et al. Appeal Judgment. IT-06-90-A. Appeals Chamber. 16 November 2012. Dissenting Opinion of Judge Carmel Agius. § 21 (noting that “at least 900 projectiles fell on Knin in just one and a half days, and there are no findings of any resistance coming from the town”).

428Operational Law Experts Roundtable on the Gotovina Judgment (Op. cit.), p. 10. See also: I.C.T.Y. Prosecutor v. Gotovina et al. Judgment. IT-06-90-T. Trial Chamber. 15 April 2011. § 1910 (according a member of the Croatian army, the purpose of the attack was “to harass and put pressure on Martić”).

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military advantage. Some experts, critical of the Chamber judgment, argued that applying a stricter proportionality standard to this category of attacks would ignore the significance of leaders for the war effort. Not only would such a standard disrupt the balance to the detriment of military necessity, but it would also be contrary to humanity: instead of targeted leadership strikes which can more effectively undermine an adversary’s capacity and morale, belligerents would focus on traditional large-scale attacks on enlisted military personnel, resulting in greater casualties and prolonged armed conflicts.429

Of course, a value argument of this sort was also not self-sufficient: even if we assume that targeted leadership strikes are a more progressive method of warfare, then where should we draw the line between permissible and impermissible collateral harm from such “harassing” attacks? And should not a lower threshold of military advantage be counterbalanced by a higher standard of protection for the civilian population?430 To answer these questions, we would need to move from values back to facts: e.g., an argument that there was no real threat to the civilian population during the strikes at Martić because most residents of Knin, in fact, fled the town the day before.431 And so on.

Ultimately, the ICTY Appeals Chamber denounced the Trial Chamber’s conclusions on proportionality of the attack on Martić, finding that the Chamber’s analysis “was not based on a concrete assessment of comparative military advantage, and did not make any findings on resulting damages or casualties”.432 Yet, the Appeals Chamber reversed the judgment on other grounds and did not express its own view on how proportionality of the attack on Martić should have been

429Operational Law Experts Roundtable on the Gotovina Judgment (Op. cit.), p. 11. Here, the experts skillfully exploit the reversibility of military necessity and humanity in IHL (see above, p. 109 of this study).

430See Bartels R. Op. cit., p. 291 (comparing the decision by Croatian commanders to strike at Martić’s residence vis- a-vis the United States military ruling out high-altitude bombing and cruise missiles as options to kill Osama bin Laden, due to the risk of excessive collateral damage).

431I.C.T.Y. Prosecutor v. Gotovina et al. Judgment. IT-06-90-T. Trial Chamber. 15 April 2011. § 1531.

432I.C.T.Y. Prosecutor v. Gotovina et al. Appeal Judgment. IT-06-90-A. Appeals Chamber. 16 November 2012. § 82.

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assessed.433 As a result, proportionality argument in the Gotovina case remained not only logically but also formally incomplete.

Conclusion: proportionality in IHL as argumentative practice

The preceding analysis has demonstrated that the content of the principle of proportionality in IHL and the dynamics of proportionality argument correspond to my earlier findings about how proportionality works generally (Chapter 1).434

First, factors that define military advantage and civilian harm, as well as the basic IHL values of military necessity and humanity are all not self-sufficient. This makes indeterminacy of the principle of proportionality in IHL absolute, not relative, undermining proportionality’s “autonomy” in IHL. The fact that in the discussed cases (Operation Allied Force and Gotovina) parties, experts and judges espoused diametrically opposite positions about proportionality of the disputed attacks was the consequence of neither bad faith nor incompetence but instead followed from the very design of proportionality.

Second, doctrinal debates and practical use of the principle of proportionality exhibit a “strategy of evasion” whereby proportionality assessment in individual cases is a manufactured result of interest balancing without any justification as to why a particular balancing formula was chosen and why it was preferred over its alternatives. Decision-makers try to portray the situation as if there were no disagreements about interpretation, and the chosen outcome is more or less

“obvious”. But this “obviousness” becomes possible only by “zooming” certain factors in order to get a preferred comparison formula, so that the outcome of balancing is decided beforehand. Yet, value assumptions that underpin choices of relevant factors themselves need to be justified. The resulting circular argument, based on stereotypical deployment of factual and value arguments, makes the

433Ibid., p. 28 (fn. 252).

434See above, p. 53-63 of this study.

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administration of proportionality a non-transparent process. This negates the idea of proportionality’s “relevance”.

Third, these features of the principle of proportionality enable its use in legal argument in order to substantiate as well as to destabilize any position on proportionality of any particular attack carried out in an armed conflict. It follows that the relationship between law and power, law and politics in IHL turns out to be much more complicated than traditionally believed. It would be equally wrong to talk either that law “dissipates” in considerations of military expediency or that law carries the authority of an independent standard and a barrier to arbitrary power. This very dilemma, as well as the idea of finding a balance between these two “extremes”, is meaningless as long as “mixed”-type proportionality in IHL, founded on the postulated opposition between military necessity and humanity, reveals their absolute indeterminacy and reversibility, and their dependence on the actual contexts of warfare. As David Kennedy remarks, “neither humanitarian idealism nor military necessity provides a standpoint outside the ebbs and flows of political and strategic debate about how to achieve objectives on the battlefield”.435 The principle of proportionality in IHL reflects this complexity. It embodies the constant oscillation between limitation on power and legitimation of power as two basic ideas that fuel circular legal argument.

435 Kennedy, David. Lawfare and Warfare (Op. cit.), p. 179.

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Chapter 4. Principle of proportionality in international human rights law

§ 1. The content of the principle of proportionality in human rights law

The principle of proportionality and pragmatism in human rights law

Today, the principle of proportionality dominates the landscape of international human rights law. International judicial and quasi-judicial institutions, alongside national courts all around the world, routinely deploy this principle to decide whether limitations of human rights by national authorities are permissible. Although the principle of proportionality does not usually appear in human rights treaties and other instruments explicitly, its applicability legally and logically follows from general436 or specific437 clauses in those instruments which make rights limitations subject to a number of preconditions, used in various combinations (legitimate aim; suitability of a limitation; necessity of a limitation; proportionality of a limitation in the narrow sense (stricto sensu)).438 For instance, the standard methodology of the European Court of Human Rights is to look for “a just balance between the protection of the general interest of the Community and the respect due to fundamental human rights”,439 and to determine whether there is a “reasonable relationship of proportionality between the means employed and the aim sought to be realized”.440 The concept of proportionality has also been adopted by the InterAmerican Court of Human Rights441 and by the United Nations Human Rights

436 See, e.g.: American Convention on Human Rights, adopted on 22 November 1969, Art. 30. URL: http://www.cidh.oas.org/basicos/english/basic3.american%20convention.htm; Charter of Fundamental Rights of the European Union, Art. 52 // Official Journal of the European Union, C 303, 14 December 2007 (this instrument explicitly mentions the “principle of proportionality”).

437See, e.g.: Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, Art. 8 § 2, Art. 9 § 2, Art. 10 § 2, Art. 11 § 2 // SZ RF. 08.01.2001. No. 2. St. 163 (“Convention”); International Covenant on

Civil and Political Rights, 16 December 1966, Art. 12 § 3, Art. 18 § 3, Art. 19 § 3, Art. 21, Art. 22 § 2 // Vedomosti Verkhovnogo Soveta SSSR. 28.04.1976. No. 17. St. 291.

438See more on these preconditions below, p. 140-143 of this study.

439European Court of Human Rights. Case “Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium” v. Belgium (Merits). 23 July 1968. P. 32. § 5. Series A no. 6.

440Ibid. See also: Handyside v. United Kingdom. 7 December 1976. § 49. Series A no. 24; Sunday Times v. United Kingdom. 26 April 1979. §§ 62, 67. Series A no. 30; Sporrong and Lönnroth v. Sweden. 23 September 1982. § 69. Series A no. 52; Lithgow and Others v. United Kingdom. 8 July 1986. § 120. Series A no. 102.

441See, e.g.: Inter-American Court of Human Rights. Case of Herrera-Ulloa v. Costa Rica. Judgment of 2 July 2004. §§ 121, 123. URL: http://corteidh.or.cr/docs/casos/articulos/seriec_107_ing.pdf; Case of Neira Alegria et al. v.