Proportionality Under the Rome Statute

I followed the recent discussion about proportionality jus in bello with great interest — and reluctantly agree with Professor Anderson that Louise Arbour’s position is inconsistent with Article 51 of Protocol I. It is also worth noting that her position is even less defensible in terms of the Rome Statute, because there are two critical differences between Article 51 and the Rome Statute’s Article 8(2)(b)(iv) — the war crime of “Extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly” — that further limit the possibility of individual criminal responsibility for disproportionate attacks.

Consider the relevant text of Article 51. Paragraph 5 prohibits, as one kind of “incidental attack”:

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 military advantage anticipated.

Compare that language to the definition of “incidental attack” in Article 8(2)(b)(iv), as interpreted by the ICC’s Elements of Crimes (the “Elements”):

The attack was such that it would cause incidental death or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment and that such death, injury or damage would be of such an extent as to be clearly excessive in relation to the concrete and direct overall military advantage anticipated.

Element 2 of Article 8(2)(b)(iv) is thus narrower than Article 51 in two ways: (1) the incidental damage must be “clearly excessive,” not simply “excessive”; and (2) that determination must be made in relation to the “overall military advantage,” not to the “military advantage.”

The first difference is relatively minor, although it may make the difference in cases where the Court concludes that the military advantage and incidental damage were nearly in equipoise.

The second difference, by contrast, is very significant, because it specifically requires proportionality to be determined relative to the advantage anticipated from the attack as a whole, not relative to isolated parts of the attack. Indeed, that requirement is made even more explicit in footnote 36 of the Elements, which provides that “[s]uch advantage may or may not be temporally or geographically related to the object of the attack.” The feigned attack at Calais that permitted the Allies to land in Normandy was used as an example of such a permissible attacke during PrepCom. (Interestingly, the ICRC insisted at PrepCom that there is no difference between the Rome Statute formulation and Article 51.)

Finally, it is important to note that Article 8(2)(b)(iv) gives military commanders nearly complete discretion to determine whether incidental damage is proportionate to anticipated military advantage. As Professor Anderson notes, the Commission established by the ICTY Prosecutor to review the NATO bombing campaign during the Kosovo conflict concluded that proportionality should be determined through an objective test – from the standpoint of the “reasonable military commander.” Article 8(2)(b)(iv), by contrast, requires the perpetrator to have “known” that the incidental damage would be disproportionate to the military advantage – which means, according to footnote 37 of the Elements, that the proportionality test is purely subjective:

[T]his knowledge element requires that the perpetrator make the value judgement as described therein. An evaluation of that value judgement must be based on the requisite information available to the perpetrator at the time.

The importance of this footnote, which was inserted into the Elements without intensive discussion at PrepCom, cannot be overstated, because it means that no amount of negligence by a military commander can satisfy the mens rea requirement of Article 8(2)(b)(iv). Differently put, a commander is only individually criminal responsible for a disproportionate attack under the Rome Statute if he consciously recognized that the damage would be disproportionate but ordered the attack anyway. As long as he honestly believed that the damage would not be disproportionate or did not know that he was required to make a proportionality assessment, he has not committed a war crime.

This is, to be sure, a troubling result – especially in the case of the poorly-trained military commander. Such cases are almost certain to come before the ICC, even if, as Roger points out, Israel’s bombing campaign in Lebanon will likely not. (The UN could refer the situation to the ICC, but the U.S. would almost certainly veto any such resolution.)

There are, however, two reasons why footnote 37 may cause fewer problems than it may at first appear. First, if a military commander causes significantly disproportionate incidental damage, it is possible – perhaps likely – that the Court will simply reject his claim not to have acted knowingly with regard to that possibility. In other words, the Court may use the incidental damage as circumstantial evidence that the commander – contrary to his claim – did in fact knowingly disregard the possibility of disproportionate incidental damage. Paragraph 3 of the Introduction to the Elements specifically provides that “[e]xistence of intent and knowledge can be inferred from relevant facts and circumstances.”

Second, it is always possible that the Court will reject footnote 37 of the Elements on the ground that it is inconsistent with the Rome Statute itself. Article 9(3) provides that “[t]he Elements of Crimes and amendments thereto shall be consistent with this Statute.” Footnote 37 is unusual in the overall scheme of the Elements; Paragraph 4 of the Introduction makes clear that “[w]ith respect to mental elements associated with elements involving value judgement, such as those using the terms ‘inhumane’ or ‘severe’, it is not necessary that the perpetrator personally completed a particular value judgement, unless otherwise indicated.” Although Article 8(2)(b)(iv) is an example of an evaluative element that is “otherwise indicated,” a case can be made that it should not be. Scholars seem to agree that the Article was intended (except for the differences discussed above) to incorporate the principles underlying Article 51 into the Rome Statute. If so, the Elements’ endorsement of a purely subjective test for proportionality would seem inconsistent with Article 8(2)(b)(iv); although the sources cited by Professor Anderson all countenance extreme deference to military commanders, none of them completely abandons a negligence standard – particularly regarding military commanders who are not even aware of the need to consider proportionality.

That, however, is a question for a different day. Under Article 8(2)(b)(iv) as it currently stands, no matter how uncomfortable we may be with the actions of the military commanders on both sides of the current conflict in Lebanon, it is unlikely that any of them have incurred criminal responsibility for their actions.