In the final installment of our Transatlantic Dialogue Series, Jann K. Kleffner discusses the wounded, sick and the proportionality assessment. Mr. Kleffner is Professor of International Law and Head of the Centre for International and Operational Law at the Swedish Defence University. His research is on public international law, with a special focus on the international law of military operations, including the law of armed conflict and peace operations, jus ad bellum, international criminal law, and human rights law.
Conventional and customary international law of armed conflict provide that ‘proportionality’ involves an assessment of the concrete and direct military advantage anticipated from an attack, on the one hand, and incidental loss of civilian life, injury to civilians and damage to civilian objects, on the other. In contrast, the new ICRC Commentary to GC I posits that military wounded and sick equally enter the collateral damage side of the proportionality equation. That contention is based on the obligation, set forth in Article 12 GC I that military wounded and sick are entitled to respect and protection in all circumstances. In the present blog post, I develop an argument in support of that contention.
Applicable law: proportionality
Treaty texts on proportionality: All treaty provisions pertaining to the requirement that attacks be proportionate make it clear that the calculus is between military advantage, on the one hand, and civilian life and injury and damage to civilian objects, on the other hand. In the words of Article 51 (5)(b) of Additional Protocol I of 1977 (API), a disproportionate attack is one that ‘may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated’ (see also Protocol II to the 1980 CCW Convention as amended on 3 May 1996, art 3 (8)(c); ICC Statute, art. 8 (2)(b)(iv)).
Customary Law of Armed of Conflict (LoAC): The ICRC’s Customary International Humanitarian Law Study (CIHL) expresses proportionality by and large along identical lines as the aforementioned treaty provisions in Rules 14, 18, and 19, while positing that these rules are applicable in both international and non-international armed conflicts. Of the practice and expressed opinio juris referred to in support of these rules, only a very limited number can reasonably be read to suggest that the collateral damage side of the proportionality equation goes beyond civilians and civilian objects. One such instance is New Zealand’s Military Manual, which instead refers to ‘the possible harmful effects upon protected persons and objects’ (CIHL vol II, Part 1, p 302 at 34.).
Notion of ’civilians’
The law of international armed conflicts (IAC) provides for a relatively clear definition of ‘civilians’, namely persons other than those enumerated in Article 4 A (1), (2), (3) and (6) of GC III and in Article 43 of AP I. Under customary LoAC, this treaty definition set forth in Article 50 of AP I has been concluded to mean summarily that civilians are those persons who are not members of the armed forces (Cf Rule 5 CIHL). The law of non-international armed conflict (NIAC) does not provide for an equally clear definition. Broadly speaking, three alternative approaches have been suggested: (a) to define ‘civilians’ in non-international armed conflict analogous to the law of international armed conflict, ie to define ‘civilians’ as those who are not members of the armed forces (whether state armed forces or armed forces of a non-state organized armed group); (b) to define ‘civilians’ as those who are not members of state armed forces and those who are not members of the armed forces of a non-state party to the NIAC assuming a so-called continuous combat function (Cf ICRC Interpretive Guidance on the Notion of Direct Participation in Hostilities, p 27); and (c) to define ‘civilians’ as all those persons who are not members of state armed forces and hence to consider members of the armed forces of a non-state party to a NIAC to also be civilians who lose protection only if and when they directly participate in hostilities.
Notion of ’wounded and sick’’
The notion of ‘wounded and sick’ in the First Geneva Convention of 1949 (GC I) differs from those contained in AP I. Most significantly, Article 8 (a) of AP I includes civilians, whereas Articles 12 of GC I applies to wounded and sick members of the armed forces and persons enumerated in Article 13 of GC I. However, wounded and sick as well as the infirm civilians enjoy particular protection and respect in accordance with Article 16 of the Fourth Geneva Convention (GC IV). The law of non-international armed conflict, on the other hand, seems to generally extend the required protection and respect to all wounded and sick, whether members of armed forces or not. Common Article 3 applies to all ‘persons taking no active part in the hostilities’ and sets forth a general obligation to collect and care for the ‘wounded and sick’. Article 7 (1) of Additional Protocol II (APII) is even clearer in this regard in as much as it stipulates that ‘[a]ll the wounded, sick and shipwrecked, whether or not they have taken part in the armed conflict, shall be respected and protected’. For international and non-international armed conflicts, a fair amount of consensus seems to have emerged that the constituent elements of being considered ‘wounded and sick’ include (a) the need of medical assistance or care and (b) refraining from any act of hostility.
Status of civilian and military wounded and sick and proportionality
It follows from the foregoing that certain wounded and sick fall squarely into the collateral damage side of the proportionality equation, namely all those who possess the status of civilians. For, fulfillment of the constituent elements of being considered wounded or sick does not alter the general, underlying status of ‘civilian’. The special protection of wounded and sick does not replace the general protection of civilians but adds to it. Likewise, the underlying status of a person as a combatant in international armed conflict or corresponding status in non-international armed conflict (depending on the approach adopted, referred to above) is not altered by the fact that that person satisfies the requirements for being considered wounded or sick. Such a person does not change his/her status. He/she does not become a ‘civilian’ by virtue of which incidental harm would enter the collateral damage side of the proportionality equation.
Obligation to respect and protect in all circumstances
However, by virtue of Article 12 GC I, states party to an international armed conflict are under an obligation to respect and protect the wounded and sick covered by GC I (ie military wounded and sick) ‘in all circumstances’. That obligation extends to a negative obligation not to attack or otherwise harm and a positive obligation to take protective measures against the dangers arising in the context of an armed conflict (GC I Commentary, para 1352). For all wounded and sick other than civilian ones, the question looms large how that obligation to respect and protect in all circumstances can be squared with the absence of such persons from the collateral damage side of the proportionality equation. The following possibilities present themselves.
Option 1: The obligation to respect and protect such wounded and sick in all circumstances could be interpreted to mean that any incidental harm to them falls foul of the obligation and hence constitutes a violation of the law of armed conflict. Such an interpretation would effectively set aside the right of parties to an armed conflict to attack lawful targets whenever there is a risk – however slight – that wounded and sick suffer incidental harm. An attack on a military convoy which is known to contain a mixture of able-bodied personnel and wounded and sick members of the armed forces would be rendered unlawful if such an attack would be expected to expose the wounded and sick to the danger of suffering incidental harm, regardless of the concrete and direct military advantage anticipated from the attack on the convoy. Such an absolute prohibition is not only unreasonable but also neither finds support in state’s understanding of the obligation to respect and protect, nor in their battlefield practice.
Option 2: The right of parties to an armed conflict to attack lawful targets could be understood to supersede the obligation to respect and protect the wounded and sick other than civilian ones. Such an absolute right of parties to an armed conflict leads to equally unreasonable results: even an attack that may be expected to lead to clearly excessive incidental harm of wounded and sick other than civilian ones would be considered lawful. Such an absolute right renders the respect and protection to which such persons are entitled ‘in all circumstances’ as a matter of the law of armed conflict effectively meaningless whenever the attack on a lawful target may be expected to cause incidental harm to them.
Option 3: The obligation to respect and protect could be interpreted to require a proportionality assessment in which incidental harm to wounded and sick other than civilian ones is legally assimilated to harm to civilians. This is the view expressed in the ICRC Commentary on GC I, which posits that ‘in view of the specific protections accorded to the wounded and sick, namely the obligation to respect (and to protect) them in all circumstances, a fortiori they should also benefit from the protection accorded to civilians’. (Id, para 1357.) Conceptually, reliance on proportionality finds support in its specific design to provide a legal framework for determining whether and under what circumstances incidental harm that is expected to occur in the context of an attack on a lawful target crosses the line from the legally permissible to the prohibited. Indeed, it is submitted that proportionality and its standard of excessiveness should be seen as a general principle of the law of armed conflict that is of application whenever an attack on a lawful target is expected to cause incidental harm to persons and property who enjoy protection from direct attack, absent more specific regulation to the contrary.(On the different notions of general principles, and proportionality as being one in the realm of the law of armed conflict, see Kleffner, “Sources of the Law of Armed Conflict,” in: McCormack / Liivoja, Routledge Handbook of the Law of Armed Conflict, Routledge (2016) 81-82). Accordingly, it is not only the (military and civilian) wounded and sick who are to be taken into account in making the proportionality assessment in targeting, but also medical personnel, and the shipwrecked (both military and civilian), which are equally to be respected and protected under all circumstances. It is to be stressed, however, that the suggested legal assimilation with civilians for purposes of the proportionality assessment is not altering the status of military wounded and sick as members of the armed forces. They do not attain civilian status.
Schedule of blog posts:
- ‘The obligation to “ensure respect” for IHL: the debate continues’- Marten Zwanenburg (Legal Counsel at the ministry of Foreign Affairs, Netherlands)- Intercross
- ‘Common Article 3 and Linkages Between Non-State Armed Groups’- Ashley Deeks (University of Virginia Law School) –Lawfare
- ‘ICRC Commentary of Common Article 3: Some questions relating to organized armed groups and the applicability of IHL’- Annyssa Bellal (Geneva Academy of International Humanitarian Law and Human Rights)- EJIL:Talk!
- ‘Transatlantic Workshop on International Law and Armed Conflict Wounded and Sick, Proportionality, and Armaments’- Geoff Corn (South Texas College of Law)- Lawfare
- ‘Wounded and Sick and the Proportionality Assessment’- Jann Kleffner (Swedish Defence University)- Intercross
The joint blog series arising from the workshop follows on from our collaboration in hosting a similar series last year (see here, here and here). The Transatlantic Workshop is organized and sponsored by the Oxford Institute for Ethics, Law and Armed Conflict (directed by Dapo Akande), the Individualisation of War project, European University Institute, Florence (directed by Jennifer Welsh), the Washington DC & London delegations of International Committee of the Red Cross, the Houston College of Law (through the good offices of Geoff Corn), and the Robert S. Strauss Center for International Security and Law at the University of Texas (directed by Bobby Chesney).