quote:
I don't think it does call for proportionality. There is no law saying that if X units of the enemy has been eliminated then you should expect no more than X of your own being destroyed.
decrypted,
That is correct for military targets but I raised Jus in Bello as Sunnyblink stated:
"Legally one anti- aircraft gun makes a city defended"
There is no law which states that. 'Defended' has never been legally defined. My response to Sunnyblink's statement deals with the current legal position as he used the present tense. The law on these matters has evolved to the law that we currently have.
This particular aspect of the law concerned with the protection of civilians is covered by Protocol I, additional to the 1949 4th Geneva Convention, the Principles of Jus in Bello and the 1999 Rome Statue of the United Nations.
International law, like most law, is complex and evolves through case law. Nonetheless, as with most law, fundamental principles are laid down. Both Jus in Bello and Jus ad Bellam, the conduct in war and the justification for war define these principles.
The principles of Jus in Bello start with the rules of just conduct which fall under the two broad principles of discrimination and proportionality. The principle of discrimination concerns who are legitimate targets in war, whilst the principle of proportionality concerns how much force is morally appropriate.
Hence my statement that Jus in Bello calls for proportionality.
Jus in Bello is not law in its own right. It is a set of principles from which law is derived and is the basis for International Humanitarian Law.
International law is, in practice, only a convention which is enforced by those who agree to be bound by its courts. In this sense, it is not an international law at all. The United States for example has indicated that it does not recognise the authority of the International Criminal Court.
Britian does recognise the International Court and is bound by its statute.
Article 8 of the statute is concerned with war crimes. Included in the definition of war crimes are:
(i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
(ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;
(iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;
(v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives;
Case law invariably involves definitions of terms such as 'intentionally', 'military objectives' and 'undefended' etc.
This is where the principles of Jus in Bello guide the court.
As I have already stated, this is the current position and not the position during WW2. At that time, the laws used at Nuremburg used the 1907 Hague convention when the law was even less defined. Article 25 of the 1907 Hague Convention states:
"Article 25. The attack or bombardment, by whatever means, of towns, villages, dwellings or buildings which are undefended is prohibited."
'Undefended' was not defined and no case law existed from which a precedent could be taken. Section 2(v) of Article 8 of Rome statute however, which says more or less the same thing is governed by the proportionality laid down in Jus in Bello.
There is no precedent in case law, nor interpretation for guidance that I am aware of which states:
"Legally one anti- aircraft gun makes a city defended"
&n
