In the European Convention on Human Rights, proportionality is one of the main principles that the European Court of Human Rights applies when examining acts of national authorities that restrict the rights guaranteed by the Convention[4] – the other is the margin of appreciation. The principle of proportionality applies in all cases where civilians are injured at a time when they are not taking a direct part in hostilities. An expression of this usual principle can be found in the First Protocol, according to which indiscriminate attacks are prohibited by Article 51 (4). (Paragraph 43) Proportionality is particularly important to balance the argument of military necessity in assessing the legality of the use of armed force. It applies in particular in cases of individual or collective self-defence, in cases where a State uses armed force to restore public order and security in times of internal disturbances and in situations of international or non-international conflicts. In a 2004 decision on the review of the legality of the intervention of the Israeli armed forces in Rafah (Gaza Strip), the Israeli Supreme Court recognized that the argument of „necessity“ may justify a military operation, but recalled that such a military operation may be legitimate from a military point of view, but may still be illegal. The Court confirmed that judges must examine the legality of military operations from the point of view of the principle of proportionality. The proportionality test concludes that attacks against innocent civilians are not permitted if the collateral damage inflicted on them is not proportionate to the military advantage (in the protection of combatants and civilians). In other words, an attack is proportionate if the benefit resulting from the achievement of the right military objective is proportional to the harm caused to innocent civilians who have been injured by it. This is a value-based test. It is based on an exercise in balancing conflicting values and interests.
It is accepted in the national legislation of different countries. It represents a central normative test for examining the activities of the government in general and the military in particular in Israel. (Paragraph 45) The situation is similar with regard to proportionality. Whether the benefits of the pre-emptive strike are proportionate to the collateral damage inflicted on innocent civilians injured by it is a legal matter whose expertise is in the hands of the judiciary. Proportionality is not a measure of precision. Sometimes there are a number of ways to fulfill its conditions. A proportionality zone is created. It is the boundaries of this area that the Court of Justice keeps. The decision within borders is the decision of the executive. That is his margin of appreciation. (para.
58) Under international humanitarian law and the Rome Statute, the death of civilians during armed conflict, however serious and regrettable it may be, does not in itself constitute a war crime. International humanitarian law and the Rome Statute allow belligerents to carry out proportionate attacks against military targets[11], even if civilians are known to be killed or injured. A criminal offence exists when there is an intentional attack against civilians (principle of distinction) (Article 8(2)(b)(i)) or an attack on a military target is launched knowing that the accidental injuries inflicted on civilians would be manifestly excessive in relation to the expected military advantage (principle of proportionality) (Article 8, paragraph 2(b)(iv)]. Judicial review does not consider the appropriateness of the decision to conduct military operations. The issue of judicial review is the legality of military operations. Therefore, we assume that the military operations in Rafah are necessary from a military point of view. The question we face is whether these military operations meet the national and international criteria that determine the legality of these operations. The fact that the operations are necessary from a military point of view does not mean that they are legally legal. In fact, we are not replacing the military commander`s discretion with respect to military considerations. That is his expertise.
We look at their consequences from the point of view of humanitarian law. That is our expertise. ( Doctors for Human Rights against the Commander of IDF Forces in the West Bank, HCJ 2117/02, 30. May 2004, paragraph (9) According to the ICTY, the principle of proportionality means that accidental and unintentional harm to civilians during a military attack must not be excessive in relation to the military advantage immediately obtained. This aspect of proportionality is not necessary when it comes to causing harm to a combatant or civilian who is taking a direct part in hostilities at the time the damage is caused. In fact, a civilian who participates in hostilities is putting his life at risk and he could – like a combatant – be the target of a deadly attack. This murder is allowed. However, this proportionality is necessary in all cases where an innocent civilian is injured. Therefore, the requirements of proportionality in the strict sense must be met in the event that the harm caused to the terrorist results in collateral damage to innocent civilians in the vicinity. It is difficult to achieve this balance.
Here, too, we must proceed on a case-by-case basis, reducing the scope of the disagreement. Take the usual case of a terrorist fighter or sniper shooting soldiers or civilians from his porch. Shooting him is proportional, even if it hurts an innocent civilian neighbor or a passerby. This is not the case when the building is bombed from the air and dozens of its residents and passers-by are injured. Difficult cases are those that are in the space between extreme examples. There, a meticulous examination of each case is necessary; It is necessary that the military advantage be immediate and anticipated (see § 57(2)(iii) of the First Protocol). Indeed, in international law, as in domestic law, the end does not justify the means. The power of the state is not unlimited. Not all means are allowed. However, when hostilities occur, casualties are caused.
The State`s duty to protect the lives of its soldiers and civilians must be weighed against its duty to protect the lives of innocent civilians injured in attacks against terrorists.