APPLYING THE RULE OF PROPORTIONALITY: FORCE PROTECTION AND CUMULATIVE ASSESSMENT IN INTERNATIONAL LAW AND MORALITY

Abstract

In the future, it is likely that many battles will be fought in an urban environment. In such battles, the risk to both the civilian population and to attacking soldiers will be drastically increased. As a result, commanders will certainly face the very difficult dilemma of determining the amount of danger to which they will expose their forces in order to limit civilian casualties. Additionally, both strategic and tactical considerations will continue to play an influential role in determining their course of conduct on the battlefield.

This article seeks to explore these two issues, from the perspective of the rule of proportionality. It concludes that the current law of armed conflict does not explicitly require a commander to risk her soldiers' lives in order to reduce civilian casualties. However, there are moral reasons to accept such an obligation in certain situation, and this obligation might be embedded in the law of armed conflict through interpretation of current provisions or through the Martens Clause. Additionally the article concludes that while conducting the proportionality balancing test, a commander may consider the cumulative impact of both the tactical aspects of the operation and the strategic aspects of the overall operational plan or war strategy.