Surveying Proportionality: Whither the Reasonable Commander?

At least two surveys gathering information about “public perceptions” of proportionality and collateral damage are making their way around the international arena by way of blogs, social media, and email. The surveys (one of which is available here, the other appears to have been taken down from here) present hypothetical targeting scenarios with varying amounts of civilian casualties and ask the responder to assess whether the attack is proportionate. The principle of proportionality states that a commander must refrain from an attack if, in the circumstances ruling at the time, the expected civilian casualties from the attack are likely to be excessive (interestingly, a term that is not even mentioned, let alone emphasized, in these surveys) in relation to the anticipated military advantage to be gained.

There is little doubt that the principle of proportionality is an essential component of civilian protection during armed conflict. What qualifies as excessive civilian risk in the context of a military operational attack decision remains one of the most elusive questions in international law, which is the ostensible motive for these surveys. To that end, the authors of these surveys and their proponents must assume that introducing the concepts to more people — most notably the people they target with these surveys — will make a positive contribution to defining proportionality, promoting greater dissemination and deeper analysis of law of war issues.

The essence of the proportionality principle is, however, inherently linked to military operational art. The complexity of the rule is simply a consequence of the broader complexity of planning and executing military operations. As a result, these surveys and the presumptions and methodologies on which they rely are highly problematic and risk producing an even greater attenuation between scholarly discourse and public perception on one side, and the realities of military operations and operational law on the other. 

First, like most hypothetical questions about proportionality, the surveys present the respondent with highly unrealistic and operationally flawed situations. The questions provide only two pieces of information — the target and the civilian casualties — and two possible choices: yes or no. As a result, the context offered in these surveys bears virtually no resemblance to the realities of combat operations, where the variables affecting targeting decisions and the potential impact on civilians are numerous, varied, and dynamic. Simplistic hypothetical questions offer no insight into the broader tactical and operational situation in which the targeting judgment is nested, whether the targeting process is deliberate or time sensitive, whether there are troops in contact, whether there are multiple choices of weapons, whether civilian movements vary with the time of day, whether the target is static or dynamic, and so on. In essence, the only reasonable answer to these posed hypotheticals is “I need more information,” which is exactly what most commanders would say in response to similar fact sets.

Second, the surveys exacerbate what is perhaps the most dangerous misperception and distortion of this vital regulatory principle: that you, or I, or anyone can accurately and meaningfully assess the proportionality of an attack after the fact and without full knowledge of the circumstances at the time of the attack. Proportionality necessitates a prospective analysis that cannot be assessed in hindsight by looking solely at the effects of an attack (or the hypothetical effects of a hypothetical attack). The language of the proportionality rule refers to “expected” civilian casualties and “anticipated” military advantage — the very choice of words shows that the analysis must be taken in a prospective manner from the viewpoint of the commander at the time of the attack. Credible compliance assessment therefore requires considering the situation through the lens of the decision-making commander, and then asking whether the attack judgment was reasonable under the circumstances.

In this way, the surveys contribute to an “effects based” critique of attack judgments, an increasingly common flaw in the contemporary proportionality discourse. It reflects the urge to simplify what is an inherently complex assessment by focusing on attack effects, counting civilian casualties, and speculating on (if considering at all) the value of a target without sufficient understanding of the actual situation or, in many cases, even the nature of military operations. This type of retrospective approach inevitably ends up comparing the impact of civilian deaths — which are dramatic, emotional, and easily captured in powerful images — with military advantage, which is extremely difficult for civilian observers to understand, has little or no emotional impact, and is hard, if not impossible, to convey in pictures. Indeed, the nature and extent of the military advantage often will not be apparent to an observer, making it difficult to assess whether collateral damage is excessive. This method might be an easier way for observers to pass judgment on military commanders, but it is not the legal rule. Rather, it produces a fundamental distortion of the rule and risks absurd results. And yet this is exactly what these surveys encourage.

Third, the surveys purport to substitute “public perceptions” and post hoc scholarly analysis for the judgment of the reasonable commander, a methodology that lies at the very heart of the rule of proportionality and the law of armed conflict in general. Few respondents will anticipate, let alone genuinely understand, the range of information and decisional processes used by operational commanders. Even at the most basic level, this foundation is multi-faceted:

  • the nature and value of the target, including the attack in the broader context of the military operations;
  • the prioritized targeting list;
  • the enemy’s center of gravity and the relationship of the nominated target to that consideration;
  • the exigencies of the tactical situation;
  • information about civilians in the area and their patterns of movement, and the extent of that information;
  • the situation with regard to friendly forces, including attack options and the demands of preserving friendly resources for subsequent operations;
  • the weaponeering process, including the choice of weapons to deploy and their known or anticipated blast radius or other consequences;
  • the availability of other opportunities to strike the target;
  • the broader enemy situation;
  • and a host of other considerations.

These surveys provide virtually none of this information.

In addition, respondents will provide their assessments based on little or no experience in applying such information in other contexts. The surveys do not seem to be either conceived by or directed to a group of respondents with a solid foundation of military operational experience. As a result, whatever judgments the survey results may ultimately suggest will not reflect those of the very community that provides the foundation for assessing the objective reasonableness of attack judgments.

Conclusions about proportionality drawn from public surveys and the inevitable resulting analysis are thus dangerously attenuated from the realities of military operations. Unless the ultimate conclusions begin by highlighting the inherently flawed foundations upon which they are built, they will only serve to perpetuate the damaging effects-based analysis that dominates the public discourse about proportionality.

This effects-based approach to assessing compliance with proportionality provides no way for commanders to know, at the time of the attack, how to determine the parameters of lawful conduct. Rather, it signals to commanders that they will be judged only on whether they caused civilian casualties, not based on their good faith efforts to comply with this inherently contextual principle. This creates the very real and dangerous risk that the law will be perceived as illogical — and in many cases irrelevant — by those who must embrace it. In addition, an effects-based analysis incentivizes the enemy to surround itself with civilians so as to generate ever greater civilian casualties and ever greater opportunities to accuse the attacking party of law of armed conflict violations, a strategy we see used to great effect in conflicts around the world.

Ultimately, these surveys are based on a flawed assumption: that “public perception” is the ultimate touchstone for compliance with the proportionality rule; a touchstone that should be substituted for the expert, hard-earned judgment of military commanders who bear the moral, strategic, tactical and legal consequences of each and every decision they make in combat. On that basis alone, it is the surveys that are disproportionate.

[Editors’ Note: Jenina Dill responds to Professors Blank, Corn, and Jensen in a subsequent post on Just Security] 

About the Author(s)

Laurie Blank

Clinical Professor of Law and Director of the International Humanitarian Law Clinic at Emory Law School

Geoffrey S. Corn

Presidential Research Professor of Law at South Texas College of Law, Lieutenant Colonel (Retired), U.S. Army. His Army career included service as the Army’s senior law of war expert advisor.

Eric Jensen

Professor at Brigham Young Law School, Special Counsel to the General Counsel of the Department of Defense, Former Chief of the Army’s International Law Branch, and Former Legal Advisor to US Military Forces in Iraq and Bosnia