The rule on proportionality represents the most apparent manifestation of the balance between military necessity and considerations of humanity that underpins IHL. As military operations are taking place in densely populated areas with increasing frequency, the rule's significance for the protection of civilians has become even more key. It is of central relevance to the current discussions on the use of explosive weapons in populated areas.
Determining what falls into the two "sides" of the proportionality assessment as clearly as possible is essential to the proper application of the rule in practice. The expected "military advantage side" of the equation has received considerable attention; the "incidental harm side" less so--even though it is equally key in assessing the lawfulness of an attack. It raises a number of legal issues that need to be addressed by belligerents to ensure they are complying with the law. Proportionality is a challenging topic and is frequently misunderstood by nonexperts and the media, particularly while hostilities are unfolding. Addressing the incidental harm side of the assessment would also provide reassurance that this dimension is being given proper consideration.
This Article focuses on just some of the questions covered at the IDF panel, although there are many that warrant closer consideration.
Some Reflections on the "Incidental Harm" Side of Proportionality Assessments,
51 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol51/iss3/11