Practice Relating to Rule 14. Proportionality in Attack
Germany’s Military Manual (1996) states: “Attacks on military objects shall not cause any loss of civilian life that would be excessive in relation to the concrete and direct military advantage anticipated.”
According to Germany’s IHL Manual (1996), “attacks against the civilian population, including launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attacks will cause excessive loss of life, injury to civilians or damage to civilian objects” are war crimes.
Germany’s Soldiers’ Manual (2006) states: “Military objectives may not be fought if loss of civilian life and/or damage to civilian objects is excessive in relation to the military advantage to be anticipated.”
Germany’s Law Introducing the International Crimes Code (2002) punishes anyone who, in connection with an international or a non-international armed conflict, “carries out an attack by military means and definitely anticipates that the attack will cause death or injury to civilians or damage to civilian objects on a scale out of proportion to the concrete and direct overall military advantage anticipated”.
In 2010, in the Fuel Tankers case, the Federal Prosecutor General at Germany’s Federal Court of Justice investigated whether war crimes or other crimes under domestic law had been committed in the course of an airstrike which was ordered by a colonel (Oberst) of the German armed forces against two tankers transporting fuel for the International Security Assistance Force in Afghanistan stolen by the Taliban near Kunduz and which resulted in the deaths of a number of civilians. The Federal Prosecutor General stated:
Pursuant to § 170 para. 2 StPO [Penal Procedure Code], the investigation proceedings which were initiated by the order of 12 March 2010 against Colonel (Oberst
) Klein and Company Sergeant Major (Hauptfeldwebel
) Wilhelm due to suspected offences under the VStGB [International Crimes Code] and other offences are to be terminated as a result of the investigations conducted and based on the sources of information set out hereafter and on the reasons given in detail hereafter.
The Federal Prosecutor General also stated:
Criminal liability under § 11 para. 1 no. 3 VStGB [for carrying out an attack by military means and definitely anticipating that the attack will cause death or injury to civilians or damage to civilian objects on a scale out of proportion to the concrete and direct overall military advantage anticipated]
The objective element of § 11 para. 1 no. 3 VStGB is fulfilled in the present case because it merely requires that an attack is conducted by military means in the context of an international or non-international armed conflict …
An attack under Art. 49 AP I [the 1977 Additional Protocol I] is defined as acts of violence against the adversary. While Additional Protocol I only applies to international armed conflicts, its definition of attack also applies to non-international armed conflicts under customary international law … The dropping of two 500-pound bombs constituted an act of violence by military means. The fulfillment of the objective element of § 11 para. 1 no. 3 VStGB does not presuppose that civilian collateral damage has actually occurred … Civilian collateral damage can merely be relevant as indicators for the fulfilment of the subjective element of the crime …
The subjective element of § 11 para. 1 no. 3 VStGB, according to which the perpetrator must have definitely anticipated that the attack would result in the killing or injury of civilians or the damage of civilian objects to an extent that is out of proportion to the overall concrete and direct military advantage anticipated, is not fulfilled in the present case. Direct intent (dolus directus) is required … The perpetrator must want to attack a military objective and must, on the one hand, definitely anticipate that the attack will result in “collateral damage”. On the other hand, he must expect that this “collateral damage” is out of proportion to the anticipated military advantage.
According to the credible statement by Colonel (Oberst
) Klein, he definitely anticipated that the bomb attack would solely hit the fuel tankers, up to 70 Taliban located in the proximity of the fuel tankers on the sand bank and the two towing vehicles standing next to the fuel tankers. These were not civilians or civilian objects in the sense of the [International Crimes] Code. Since the accused considered that only insurgents were present on the ground, he not only did not definitely expect the injury of civilians as required by § 11 para. 1 no. 3 VStGB, but rather he did not expect such injury at all. The question of whether anticipated civilian injuries are out of proportion to the overall military advantage anticipated therefore does not even arise in the context of examining § 11 para. 1 no. 3 VStGB.
The Federal Prosecutor General also stated:
Criminal responsibility under § 211 StGB [i.e. for murder under Germany’s Penal Code]
Colonel (Oberst) Klein’s actions were lawful under international law and therefore justified under domestic criminal law …
Even considering the fact that the bombing killed civilians to be protected under the international law of armed conflict, the order to attack was lawful under international law.
The reason for this is not that civilians consciously approached the fuel tankers which were surrounded by armed Taliban. Thereby they did in fact put themselves at risk to become victims of a legitimate military attack as “collateral damage”. However, from a legal perspective the protection of international humanitarian law applies irrespective of whether civilians know about the danger of such an attack or of whether they found themselves at the place of military confrontations out of their free will or under coercion … Yet, the protection of civilians does not apply in an unlimited way. International humanitarian law … prohibits … attacks … against a military objective if at the time of the order to attack the anticipated civilian damage is out of proportion (“excessive” see Art. 51 para. 5 sub-para. b AP I [the 1977 Additional Protocol I]) to the anticipated concrete and direct military advantage (see ICRC Customary International Humanitarian Law, 2005 – hereafter ICRC Customary IHL [Study] – p. 46ff). This prohibition of excessiveness is a specific military proportionality clause which cannot be compared to the effects of the prohibition of excess under the law that applies in times of peace. “Out of proportion” is not to be equated with the stricter standard of lack of appropriateness; the killing of uninvolved persons can never be appropriate under human rights law …
The standard of prohibiting excess first requires a military advantage of a tactical nature …, such as the destruction or weakening of hostile troops or their means of combat, or territorial gain … Collateral damage such as the death of civilians is not out of proportion merely because the military advantage is only a short-term advantage which does not decide the conflict. Thus, the bombarding of a broadcasting centre by NATO in Belgrade with the foreseeable result of numerous civilian deaths was not considered to be out of proportion, even though the anticipated tactical advantage only lay in the interruption of the adversary’s telecommunication for a few hours (Final Report to the Prosecutor by the Committee established to review the NATO Bombing Campaign against the Federal Republic of Yugoslavia, marginal no. 78). In the present case the bombing pursued to military goals, namely the destruction of the fuel tankers robbed by the Taliban and of the fuel as well as the killing of the Taliban, including not least the high-level regional commander of the insurgents. The anticipated military advantage, namely on the one hand the final prevention of using the fuel and the fuel tankers as “driving bombs” or to fuel the insurgents’ militarily used vehicles and on the other hand the at least temporary disruption of the Taliban’s regional command structure fall within the usual, recognized tactical military advantages … The fact that the goal mentioned in second place was not fully achieved is irrelevant for the legal assessment because the expectations at the time of the military action based on the facts are decisive (“ex ante view”, see ICRC Customary IHL [Study] p. 50 …) …
The anticipated civilian collateral damages are also to be assessed from the perspective of the attacker at the time of the attack, rather than with hindsight according to the actual unfolding of events (see also the wording of Art. 51 para. 5 sub-para. b AP I … “may be expected”; ICRC Customary IHL [Study] p. 50 …). The Federal Republic of Germany has, like a number of other States …, particularly emphasized this fact when it ratified the  Additional Protocols to the Geneva Conventions by making a declaration … Only if a commander refrained from taking feasible precautions in violation of international law (“feasible precaution“; see. Art. 57 para. 2 sub-para. a AP I; ICRC Customary IHL [Study] p. 51 ff.) and such precautions would have led to the anticipation of greater civilian collateral damage which then in fact materialized is this relevant for an analysis of the proportionality of an attack. The putting into danger of own troops or of own means of warfare does not have to be accepted (see ICRC Customary IHL [Study] pp. 50, 64 …). In view of the circumstances known to Colonel (Oberst) Klein (distance to inhabited settlements, night time, presence of armed Taliban) and the informant’s statements, he considered the presence of protected civilians unlikely … Further feasible reconnaissance and precautionary measures (“feasible precautions”) were not promptly available in the concrete situation. Colonel (Oberst) Klein did not have to accept the danger of the fuel tankers or the fuel being retrieved by the Taliban … The international law of armed conflict requires that in case of doubt a person is to be considered a civilian (see Art. 50 para. 1 sentence 2 AP I). However, there is no such case of doubt if – as is the case here – there are sufficient indications, considering the concrete circumstances, that the persons concerned are a legitimate objective of a military attack; absolute certainty is not necessary …
Even if the killing of several dozen civilians would have had to be anticipated (which is assumed here for the sake of the argument), from a tactical-military perspective this would not have been out of proportion to the anticipated military advantages. The literature consistently points out that general criteria are not available for the assessment of specific proportionality because unlike legal goods, values and interests are juxtaposed which cannot be “balanced” … Therefore, considering the particular pressure at the moment when the decision had to be taken, an infringement is only to be assumed in cases of obvious excess where the commander ignored any considerations of proportionality and refrained from acting “honestly”, “reasonably” and “competently” … This would apply to the destruction of an entire village with hundreds of civilian inhabitants in order to hit a single enemy fighter, but not if the objective was to destroy artillery positions in the village … There is no such obvious disproportionality in the present case. Both the destruction of the fuel tankers and the destruction of high-level Taliban had a military importance which is not to be underestimated, not least because of the thereby considerably reduced risk of attacks by the Taliban against own troops and civilians. There is thus no excess.
In 1983, in reply to a question in Parliament about the principle of proportionality in attack, the German Government declared that the principle contained in Article 51(5) of the 1977 Additional Protocol I required decisions on a case-by-case basis and that no abstract calculations were possible.
In 1996, the German Government reminded the Turkish Government to respect the principle of proportionality during hostilities in northern Iraq.
In 2009, in reply to a minor interpellation in the Lower House of Parliament (Bundestag) entitled “Investigation of serious violations of international humanitarian law in the recent Gaza war”, Germany’s Federal Government wrote:
14. Can the Federal Government confirm or deny that ammunition with white phosphorous has been used in densely populated areas (e.g. Gaza City) and against civilian installations (e.g. the UN), and how does the Federal Government assess such use under international humanitarian law?
The Federal Government is aware of allegations that Israel has used phosphorous weapons in a way that violated international law. This is the subject of a number of investigations, including by Israel. The Federal Government has no information of its own on whether such weapons were used. Smoke ammunition which includes white phosphorus is not prohibited as such under international humanitarian law. But its use must comply with the general rules of international humanitarian law. Hence … an attack against a military objective which must be expected to cause loss of civilian life that is out of proportion to the concrete and direct advantage … [is] prohibited.
The Federal Government also wrote:
17. Given that armed Palestinian groups and their legitimate military objectives are often placed in populated areas, does the Federal Government consider that it can be justified under international law to subject these populated areas to massive fire even if it can be expected that a large number of injuries and deaths will be caused and will mostly affect civilians?
If yes, how does the Federal Government justify that such a use of weapons complies with international law?
… Attacks are prohibited if they can be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be out of proportion to the concrete and direct advantage anticipated. This has to be analysed on a case by case basis.