Compass Points – Unpacking ‘Proportionality’
The Law of Armed Conflict
Compass Points – Unpacking ‘Proportionality’
The Law of Armed Conflict
December 27, 2023
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It all comes down to MTS.
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Some commanders in combat, either through poor legal advice or due to their own incomplete understanding of the Law of Armed Conflict, may restrict their combat units from fighting as forcefully as they should. The Law of Armed Conflict is a body of laws and agreements which has developed over time and attempts to put reasonable boundaries on commanders and troops in war. The Law of Armed Conflict is designed to be reasonable and practical. One wise Marine commander over his career has often given the guidance to his Marines, "if something is dumb, do not do it, just don't do it." The Law of Armed Conflict is designed to make commanders humane, not dumb.
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One of the terms that often leads to confusion is ‘proportionality.’ While most people feel they understand what proportionality means in war, their understanding is often mistaken.
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Israel's famed Iron Dome missile defense system, over many years and many attacks, has proven itself more than 90% effective. It destroys more than 90% of incoming missiles. For example, early in August 2022 Hamas fired more than 1100 missiles at Israel. Iron Dome shot down virtually all of them. One Hamas missile goes up, then one Israeli missile goes up and destroys it. Perfect proportionality. But that is not what proportionality in war means. It does not mean matching the actions of the enemy.
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The purpose of war is to win a better peace. It means using enough force to MTS - Make Them Stop. Good guys have to make the bad guys stop. Matching knife with knife, gun with gun, missile with missile prolongs the fighting. To win the peace, to make the bad guys stop, it is necessary to shake them, surprise them, disturb them, and finally shatter their cohesion and will. It is impossible to shatter the will of the enemy by repeating the same safe and predictable response.
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In the US, on April 24, 1863, President Lincoln signed what has become known as the Lieber Code. The Lieber Code put restrictions on the conduct of wars.
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Military necessity does not admit of cruelty - that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions. It does not admit of the use of poison in any way, nor of the wanton devastation of a district. It admits of deception, but disclaims acts of perfidy; and, in general, military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult.
-- Lieber Code, article 16
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Down through the years, other codes and agreements have outlawed certain weapons, including poisoned gas, poisoned bullets, biological weapons, and others. Still, commanders in combat may always use all reasonable and necessary force to respond to enemy attacks with enough force, not just to match them, but to MTS - Make Them Stop.
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This was the failure of Iron Dome in August of 2022. Yes, the Iron Dome shot down nearly every missile but the Iron Dome did not make the bad guys stop. The result? For the next fourteen months, Hamas planned, trained, rehearsed, and built up its store of missiles. Then, on October 7, 2023, Hamas launched their surprise attack. They fired 5000 missiles at Israel and then invaded peaceful, unarmed villages, targeting civilians with the most grotesque and vile forms of torture, mutilation, and death.
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On October 7, 2023, Hamas clearly violated the rules of war.
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Protecting civilians during armed conflict is a cornerstone of IHL, which provides a robust framework within which civilians are protected. This protection extends to their direct environment and property, also known as ‘civilian objects’.
-- Red Cross - Casebook
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What is a proportionate response? It is enough force to make the bad guys stop without going beyond. Israel could not have used a nuclear weapon on Gaza, but it could have used all reasonable force against legitimate military targets. Hospitals, schools, churches, museums may not be intentionally targeted. What if the enemy hides in a hospital, billets troops in churches, and places artillery on a school playground? In these cases, the enemy has transformed what were off limit civilian locations into legitimate military targets. The destruction to the previously civilian structures is entirely the fault of the enemy who turned the locations into military targets.
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In the same way, civilian non-combatants may never be intentionally targeted. But when the enemy uses civilians as shields, the unintentional deaths are the fault of the enemy.
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The goal of the Law of Armed Conflict is to encourage reasonable limits on war to help win a better peace. Israel's Iron Dome system is a superb piece of technology. But Iron Dome has a big problem. The Iron Dome stopped the missiles, but it did not make the bad guys stop. It did not defeat them. It left them free to plan their next attack. This is the same problem with the Marine Corps' neo-Maginot line on islands in the Pacific. Defense alone does not make the bad guys stop. To make them stop, disciplined, humane forces must be relentless, fearsome, and creative in their unwavering mission to locate, close with, and destroy the enemy by fire and maneuver.
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It all comes down to MTS - Make Them Stop. When bad guys attack, a "proportional" response does not mean merely matching what the enemy has done. Proportional means using all the reasonable force -- but no more -- that is necessary to make them stop. Nations and military commanders must refuse the foolish path of matching what the enemy has done. Matching the enemy prolongs the fighting and lets the enemy choose the place, time, and method for the next attack. Stop matching. Attack the enemy with all reasonable and necessary force.
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War is brutal and can bring out brutality in combatants, but, for more than two-hundred years, the Marine Corps has been the model for the fearsome, unstoppable, offensive force that nevertheless remains disciplined, professional, and humane. When deterrence fails, the best thing to do is not sit on defense, but attack ferociously and defeat the enemy quickly and completely. That shortens the conflict, saves lives, and produces peace. When an enemy attacks, do not match them, use all reasonable and necessary force to shatter the enemy's cohesion and will. Do it today and win a better peace tomorrow.
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International Committee of the Red Cross - Casebook
Protection of Civilians
https://casebook.icrc.org/highlight/protection-civilians
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General Orders No. 100 : The Lieber Code
https://avalon.law.yale.edu/19th_century/lieber.asp
“War means fighting and fighting means killing” Major General Nathan Bedford Forest CSA
My apologies here but the subject of LOAC sends me scrambling for my “soap box”. I am happy that CP raised the issue of the LOAC. IMO, besides Strategy, LOAC is another subject where General Officers need to do a lot of homework. In both the Iraq and Afghanistan, the “war fighting” general’s establishment and application of ROEs, in many cases, left them looking like a pack of monkey-butts. The LOAC are political and if the senior military leadership can’t explain their proper implementation, politicians will step in via the media with poisoning information and policies that work against combat operations and undermine the military leadership. Every General Officer once selected and before he pins on his first star should be required to read “Fighting Today’s Wears – How America’s Leaders Have Failed Our Warriors” – by David G. Bolgiano and James M. Patterson. They should also be instructed on recognition of Strategic Legalism.
https://smallwarsjournal.com/blog/strategic-legalism
At the beginning of the Civil War President Lincoln suspended Habeas Corpus but he knew he had to replace it with some form of rules and regulations for the war. He turned to Franz Lieber, a jurist teaching ethics at the Columbia Law School in South Carolina. As a young Prussian Officer Lieber was wounded at the Battle of Waterloo. He recovered and continued his military career and eventually migrated to the US.
The Lieber Code was adopted and implemented by the US Army as General Order 100. The Code established the first codification of the Laws of War.
https://blogs.loc.gov/law/2018/04/the-lieber-code-the-first-modern-codification-of-the-laws-of-war/
An interesting fact is Lincoln sent the General Order 100 to Confederate President Jefferson Davis telling him this is how the Union Army is going to fight the civil war. Lieber’s genius is that General Order 100 is self-policing because of Article 27, labeled as the “sternest feature of war”, establishing “retaliation” as a righteous act against a “reckless enemy” for “conducting repetition of barbarous acts”. In other words, if you do it to us, we will do it to you in retaliation. This article solved Lincoln’s issue with the Jeff Davis’s order to hang captured white officers commanding black units and sending captured black soldiers into slavery.
Clearly, the LOAC primary purpose is to protect civilians but they also offer protection to our warriors. As a “Combatant” our warriors are immune from the charge of murder. Why, because our government sends our civilians into combat as legal combatants with orders to kill the enemy. I never witnessed the charge of “killing civilians” in a US “war crime” court martial. The defendants are always charged with murder. There are two “elements of proof” for murder; you gotta have a body and you gotta have intent. Last I looked there is usually a lot of both on the battle field. The issue here is murder makes for a perceived easy prosecution for the Convening Authority. In addition, if you charge them with “killing civilians” that brings into question the general’s ROE focusing on his responsibilities.
The LOAC principle of “Distinction” establishes the clear difference between combatants and civilians. When you see a Marine in his “battle rattle” there is no doubt he is a combatant. Civilians have a “strict” requirement to stay out of the fight. If you are a civilian and you pick up a weapon, you make yourself a combatant (if you are still dressed as a civilian, the bad news is you are now a legitimate target for both sides). According to the LOAC even if you drop the weapon you are still a combatant.
The Lieber Code also established the LOAC principle of “Military Necessity”. Lieber believed that a rigorist war makes for a short war and a short war makes for a merciful war. LOAC experts have stated the principle of Military Necessity “lubricates the wheels of the LOAC” because it “is the cause that sets in motion the measures taken towards the effect of gaining a military advantage over the enemy”. I think that generals forget that “The center of gravity of hostilities is the planning and execution by all levels of command of attacks against the enemy, i.e. acts of violence”. As you read the references on “Proportionality” remember that it is subordinate to Military Necessity.
https://sites.duke.edu/lawfire/2023/10/26/geoff-corn-on-the-disproportionate-confusion-about-proportionality/
https://sites.duke.edu/lawfire/2023/11/14/guest-post-dave-graham-on-the-oft-forgotten-strategic-component-of-the-loac-proportionality-calculation/
The LOAC are general in nature because they have to be in order to cover all the different incidents and circumstances that occur in combat. The laws of war are therefore very open to subjective interpretation and frankly our warriors always deserve the benefit of doubt. In addition, under no circumstances should a General Court Martial Convening Authority, let himself be politically pushed by the media into legal proceedings against our warriors. Folks besides strategy, organization, and weapons there is a lots of other items we need to get squared away and fitted in the war with China seabag.
This article is written by a USA LtGeneral, the senior USA lawyer, highly recommend it.
https://sites.duke.edu/lawfire/2020/03/07/ltg-pede-on-the-coin-ct-hangover-roe-war-sustaining-targets-and-much-more/
https://sites.duke.edu/lawfire/2021/12/06/dont-let-overly-restrictive-strike-policies-hamper-the-fight-against-the-islamic-state-and-al-qaeda/