Related Rule
Australia
Practice Relating to Rule 14. Proportionality in Attack
Australia’s Defence Force Manual (1994) states:
Collateral damage may be the result of military attacks. This fact is recognised by LOAC and, accordingly, it is not unlawful to cause such injury and damage. The principle of proportionality dictates that the results of such action must not be excessive in light of the military advantage anticipated from the attack. 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 535.
The manual further states, in the specific context of siege warfare, that “if there are noncombatants in the locality, the anticipated collateral damage must not be excessive in relation to the concrete and direct military advantage expected to result from the bombardment”. 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 733.
Both the Defence Force Manual and the Commanders’ Guide list “launching indiscriminate attacks that affect the civilian population or civilian objects in the knowledge that such attack will cause extensive and disproportionate loss of life, injury to civilians or damage to civilian objects” as an example of acts which constitute “grave breaches or serious war crimes likely to warrant institution of criminal proceedings”. 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 1315(h); Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 1305(h).
Australia’s LOAC Manual (2006) states:
5.1 … Due regard must be paid to the principle of proportionality …
5.9 Proportionality requires a commander to weigh the military value arising from the success of the operation against the possible harmful effects to protected persons and objects. There must be an acceptable relationship between the legitimate destruction of military targets and the possibility of consequent collateral damage.
5.30 … Attacks on military objectives that cause incidental loss or damage to civilians are not prohibited as long as the proportionality rule is complied with …
5.38 Collateral damage may be the result of military attacks. This fact is recognised by the LOAC and, accordingly, it is not unlawful to cause such injury and damage. The principle of proportionality dictates that the results of such action must not be excessive in light of the military advantage anticipated from the attack.
5.61 [Duties of Australian Defence Force commanders include] refraining from launching any attack which may be expected to cause collateral injury, or collateral damage, which would be excessive in relation to the concrete and direct military advantage anticipated. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, §§ 5.1, 5.9, 5.30, 5.38 and 5.61; see also §§ 2.8, 2.10, 4.2, 4.5, 4.48 and 6.26.
The manual further states, in the context of siege warfare: “If there are non-combatants in the locality, the anticipated collateral damage must not be excessive in relation to the concrete and direct military advantage expected to result from the bombardment.” 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 7.36.
The manual’s Glossary defines “collateral damage” as: “Incidental damage to persons, objects or locations arising out of combat action against a legitimate military objective.” 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, Glossary.
The manual’s chapter on “Compliance” states:
[The 1977 Additional Protocol I] extends the definition of grave breaches to include the following … acts when committed wilfully, in violation of the relevant provisions of the protocol, and causing death or serious injury to body or health:
- launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 13.26.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Australia’s Geneva Conventions Act (1957), as amended in 2002, provides: “A person who, in Australia or elsewhere, commits a grave breach … of [the 1977 Additional Protocol I] is guilty of an indictable offence.” 
Australia, Geneva Conventions Act, 1957, as amended in 2002, Section 7(1).
The grave breaches provisions in this Act were removed in 2002 and incorporated into the Criminal Code Act (1995).
Australia’s Criminal Code Act (1995), as amended to 2007, states with respect to serious war crimes that are committed in the course of an international armed conflict:
268.38 War crimeexcessive incidental death, injury or damage
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator launches an attack; and
(b) the perpetrator knows that the attack will cause incidental death or injury to civilians; and
(c) the perpetrator knows that the death or injury will be of such an extent as to be excessive in relation to the concrete and direct military advantage anticipated; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator launches an attack; and
(b) the perpetrator knows that the attack will cause:
(i) damage to civilian objects; or
(ii) widespread, long-term and severe damage to the natural environment; and
(c) the perpetrator knows that the damage will be of such an extent as to be excessive in relation to the concrete and direct military advantage anticipated; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty for a contravention of this subsection: Imprisonment for 20 years. 
Australia, Criminal Code Act, 1995, as amended to 2007, Chapter 8, § 268.38, pp. 327–328.
Australia’s ICC (Consequential Amendments) Act (2002) incorporates in the Criminal Code the war crimes defined in the 1998 ICC Statute, including launching an attack which causes “excessive incidental death, injury or damage” in international armed conflicts. 
Australia, ICC (Consequential Amendments) Act, 2002, Schedule 1, § 268.38.
During the Second Reading Speech of the Geneva Conventions Amendment Bill 1990 in the House of Representatives, the purpose of which was to amend the Geneva Conventions Act of 1957 so as to enable Australia to ratify the 1977 Additional Protocol I, Australia’s Attorney-General stated:
Additionally, the protocols do not require no civilian casualties. That is not in the game at all. The protocols do not say that in any clause. The protocols require the military leadership to assess whether or not civilian losses would be in proportion to the military objectives to be achieved by the attack in question. We all know that it is not always easy to get the right balance in these areas – that is accepted – but I think that it is just about being obtained here. It is certainly being done as well as it can be. 
Australia, House of Representatives, Attorney-General, Geneva Conventions Amendment Bill 1990: Second Reading Speech, Hansard, 12 February 1991.
In a press release issued in 1991, an Australian Senator asserted that Article 51(5)(b) of the 1977 Additional Protocol I would bar Australian ships from providing “naval gunfire support” (NGS) to an amphibian landing in Kuwait and from engaging batteries located in a heavily populated port. According to the Senator, it would prove very difficult for an Australian naval commander to determine whether a shore bombardment would or would not injure civilians or damage civilian property to an extent that would be excessive in relation to the direct military advantage. 
Australia, Media Release by the Shadow Minister for Defence, Protocol One: A Problem for Naval Operations in the Gulf, 20 February 1991.
In response to these statements, the Assistant Chief of the Defence Force - Operations (ACOPS) recalled first that Australia was not yet legally bound by the 1977 Additional Protocol I and that even if it had been, such action would not be in breach of Article 51(5)(b). On the basis of the US and Australian Rules of Engagement and given the very high targeting standards shown by the US authorities, ACOPS deemed that both the Australian Government and the warship commanders “can confidently expect that NGS targeting tasks and associated co-ordinates have been rigorously scrutinised to ensure a lawful balance between incidental civilian losses and the anticipated concrete and direct military advantage”. ACOPS also differed with the Senator’s opinion because even if, in retrospect, it should emerge that excessive civilian casualties resulted from such an operation, the Australian warship commanders would not incur personal responsibility for a grave breach of the 1977 Additional Protocol I since such a grave breach can only result “from a ‘wilful’ decision, i.e. deliberate disregard for consequences whilst having full knowledge”.  
Australia, Media Release by the Shadow Minister for Defence, Protocol One and RAN Gulf Operations, 25 February 1991.
In 2008, in response to a question without notice on Georgia in the House of Representatives, Australia’s Minister for Foreign Affairs stated:
[E]arlier this month, following the incursion of Georgian forces into South Ossetia, the Russian Federation deployed a large-scale military offensive in Georgia, not restricted to South Ossetia. That large-scale military offensive implemented and effected large-scale devastation upon parts of Georgia, including military and economic points. …
The actions of the Russian Federation in this respect were clearly disproportionate. …
… We urge the Russian Federation … to engage fully in international affairs through the relevant regional multilateral forums – through discussion, not through the disproportionate use of military force of arms. 
Australia, House of Representatives, Minister for Foreign Affairs, Question Without Notice: Georgia, Hansard, 27 August 2008, p. 6835.
While the core challenges in the protection of civilians identified in the previous reports of the Secretary-General still need our sustained attention, the new report also identifies several protection policy priorities that need to be explored. In particular the following “emerging” issues would benefit from our attention, and the Group of Friends stands ready to act as a platform to advance them. …
… [O]n the issue of lethal autonomous weapons systems (LAWS), the Group is of the view that further discussions are needed and it welcomes the fact that the issue will be examined in Geneva in May 2014, in the framework of the CCW [Convention on Certain Conventional Weapons]. The Group hopes that such discussions will also examine the issue with due consideration to the protection of civilians as part of a comprehensive debate including legal, military operational, technological and ethical perspectives. In time discussion should focus on the relevance of such systems to the protection of civilians, in particular in the context of IHL and with regard to the principles of distinction, precaution and proportionality. 
Australia, Statement by the permanent representative of Switzerland during a UN Security Council open debate on the protection of civilians in armed conflict made on behalf of the Group of Friends on the Protection of Civilians in Armed Conflict, namely Australia, Austria, Belgium, Brazil, Canada, France, Germany, Italy, Japan, Liechtenstein, Norway, Portugal, Switzerland, the United Kingdom and Uruguay, 12 February 2014, p. 2.
While the core challenges in the protection of civilians identified in the previous reports of the Secretary-General still need our sustained attention, the new report also identifies several protection policy priorities that need to be explored. In particular the following “emerging” issues would benefit from our attention, and the Group of Friends stands ready to act as a platform to advance them. …
… [O]n the issue of lethal autonomous weapons systems (LAWS), the Group is of the view that further discussions are needed and it welcomes the fact that the issue will be examined in Geneva in May 2014, in the framework of the CCW [Convention on Certain Conventional Weapons]. The Group hopes that such discussions will also examine the issue with due consideration to the protection of civilians as part of a comprehensive debate including legal, military operational, technological and ethical perspectives. In time discussion should focus on the relevance of such systems to the protection of civilians, in particular in the context of IHL and with regard to the principles of distinction, precaution and proportionality. 
Belgium, Statement by the permanent representative of Switzerland during a UN Security Council open debate on the protection of civilians in armed conflict made on behalf of the Group of Friends on the Protection of Civilians in Armed Conflict, namely Australia, Austria, Belgium, Brazil, Canada, France, Germany, Italy, Japan, Liechtenstein, Norway, Portugal, Switzerland, the United Kingdom and Uruguay, 12 February 2014, p. 2.
Australia’s Defence Force Manual (1994) refers to the declaration made by Australia upon ratification of the 1977 Additional Protocol I to the effect that references to military advantage in Articles 51(5)(b) and 57 of the Protocol mean “the advantage anticipated from the attack as a whole and not only from isolated or particular parts of the attack” and that “military advantage involves a number of considerations, including the security of the attacking forces”. 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, §§ 510 and 511.
Australia’s LOAC Manual (2006) states:
5.10 … In relation to G. P. I [1977 Additional Protocol I], Australia has made a declaration to the effect that the Australian Government’s understanding is that references to military advantage in Articles 51(5)(b) and 57 mean:
the advantage anticipated from the attack as a whole and not only from isolated or particular parts of the attack.
5.11 In addition, the declaration makes it clear that military advantage involves a number of considerations, including the security of attacking forces … 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, §§ 5.10–5.11.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Upon ratification of the 1977 Additional Protocol I, Australia stated that references to “military advantage” were intended to mean “the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of that attack” and maintained that the term “military advantage” involved a number of considerations, including the security of the attacking forces. Australia also stated that the expression “concrete and direct military advantage anticipated” meant “a bona fide expectation that the attack will make a relevant and proportional contribution to the objective of the military attack involved”. 
Australia, Declarations made upon ratification of the 1977 Additional Protocol I, 21 June 1991, § 4.
Australia’s Defence Force Manual (1994) refers to the declaration made by Australia upon ratification of the 1977 Additional Protocol I to the effect that “ADF [Australian Defence Force] commanders will, by necessity, have to reach decisions on the basis of their assessment of the information available to them at the relevant time”. 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 511.
Australia’s LOAC Manual (2006) refers to the declaration made by Australia upon ratification of the 1977 Additional Protocol I to the effect that “ADF [Australian Defence Force] commanders will, by necessity, have to reach decisions on the basis of their assessment of the information available to them at the relevant time”. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, §5.11.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Upon ratification of the 1977 Additional Protocol I, Australia stated:
In relation to Articles 51 to 58 inclusive it is the understanding of Australia that military commanders and others responsible for planning, deciding upon, or executing attacks, necessarily have to reach their decisions on the basis of their assessment of the information from all sources, which is available to them at the relevant time. 
Australia, Declarations made upon ratification of the 1977 Additional Protocol I, 21 June 1991, § 3.