Geoff Corn on his new article, “Proportionality: Can’t Live With It But Can’t Live Without It”

Today Lawfire^® contributor (and LENS conference speaker) Professor Geoff Corn briefly introduces his new article, “Proportionality: Can’t Live With It But Can’t Live Without It” in which he grapples with the proportionality rule that applies to law-of-war targeting.  This post only gives you a taste of what this new essay covers, so be sure to read the full article found here.

Just to orient you to the topic, here’s an extract from part of the Department of Defense’s Law of War Manual’s discussion of proportionality (the box is my add):Geoff addresses questions that have bedeviled law of war practitioners.  For example, there isn’t consensus as to precisely what the key terms mean.  What does “excessive” mean?  How is the expected military advantage to be calculated in a given circumstance?  What is meant, exactly, by “feasible” precautions?

In his article Geoff highlights that the indeterminate nature of the terms can cause misunderstandings that can have strategic impact.  He points out, for example, that “because ‘excessive’ lacks any fixed meaninhg, it can be interpreted to support almost any conclusion.”

Moreover, in the article he also says:

I see these problems all the time, and not just in the media and from politicians, but also in the work of academics. 

Geoff shared with Lawfire^® why he wrote that article and some of the key points he wants to make:

This short article grew out of a discussion I was asked to lead during a conference hosted by the International Law division of the Naval War College. “Your topic will be proportionality and precautions” was the mandate.

My initial reaction was how to lead a discussion among a room full of operational law experts – to include several I regard as true leaders in this field – that would not amount to a journey down a well-worn path?

What came to me at the last moment was the idea to use the opportunity to raise what I have increasingly perceived as an odd aspect of the proportionality rule: the dichotomy between the external focus on the rule as a touchstone for assessing legitimacy of combat operations and the limited utility of the rule as a civilian risk mitigation tool at the tactical and operational levels of combat.

Why is it that so much attention is devoted to commentary on the rule when in reality it is so inherently indeterminate? And if, as must be assumed, the primary interest of such attention is to advance the humanitarian goal of civilian risk mitigation during the conduct of hostilities, has this focus distracted from emphasis on what I believe is a more effective tool to achieve this goal: the precautions obligation?

What I feared would be a ‘tired’ discussion turned out to be dynamic and insightful. That discussion confirmed my initial thoughts on the issue. These thoughts are addressed in my article. Counter to what one might perceive from the title of the paper, I am in no way dismissing the significance of the proportionality rule.

To the contrary, I suggest that it should be understood as a central pillar in the foundation of humanitarian regulation of hostilities: the ends cannot always justify the means. I explain in the article how the obligation to forego launching an attack on what is already determined to be a military objective – the essence of the proportionality rule – is arguably operationally illogical. After all, if the nominated target is a military objective, that means attacking it will provide a military advantage.

Nonetheless, the rule, or principle, reminds commanders that there are times when achieving that military advantage cannot be justified considering the anticipated harm to civilians and civilian property. In this sense, I suggest proportionality is as much an ethos as a rule; an ethos central to the development of truly professional warriors.

However, as was highlighted during our discussion, I highlight how the many variables related to implementing the rule, coupled with uncertain meaning of the term “excessive” – the fulcrum of the proportionality balance – leads to the rule meaning essentially whatever an observer wants it to mean.

While this might be interesting from an academic or public debate perspective, it is not particularly useful as a decision-framing rule for an operational commander. These commanders need to make attack decisions. When they are advised to comply with the rule, the logical question to the legal advisor is, “what does excessive mean?” What is the answer? “Sir, that is your call.”

I then briefly contrast this operational uncertainty with the precautions obligation, a topic I have written about extensively. My goal is to highlight why that obligation is better aligned with operational instinct and more amenable to after-the-fact critique. While I acknowledge that the notion of feasibility is both inherently contextual and partially subjective in nature, it is my view that assessing compliance with precautions both in the implementation and critique of the obligation is simply more objective than implementation of the proportionality rule.

Asking a commander to consider a different method of attack, or a different weapon system, or issuance of warnings, or providing an opportunity for civilian evacuation, or modifying the timing of attack align far better with warfighter experience and instinct than assessing what amounts to excessive.

Ultimately, my view is that the central premise of proportionality must continue to be emphasized: attacking a military objective is sometimes unjustified due to the anticipated civilian risk; the ends don’t always justify the means. But achieving the essential goal of civilian risk mitigation will be enhanced by increased emphasis on the precautions obligation.

Allow me to urge you again to read the full article.  It’s found here.

About the Author

Professor Geoffrey S. Corn holds the Killam Chair of Criminal Law and is Director of the Center for Military Law and Policy, Texas Tech University School of Law.

A retired U.S. Army Lieutenant Colonel, Geoffrey Corn has been teaching law for 20 years. His military career included service as both a tactical intelligence officer and a military lawyer, culminating as the Army’s senior law of war advisor. He earned is B.A. from Hartwick College, his JD with highest honors from George Washington University, his LLM (Distinguished Graduate) from the U.S. Army Judge Advocate General’s School. He has published more than 60 scholarly articles and co-authored six books.

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The views expressed by guest authors do not necessarily reflect my views or those of the Center on Law, Ethics and National Security, or Duke University. (See also here).

Remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!