Norma relacionada
Israel
Practice Relating to Rule 14. Proportionality in Attack
Section B. Determination of the anticipated military advantage
Israel’s Manual on the Rules of Warfare (2006) states:
Upon attacking a military target that is located at the heart of [a] civilian district, for example, a group of enemy soldiers who are holed up in the heart of a city and surrounded by civilians, they may be attacked, but only if the expected military benefit to one’s side from the offensive exceeds the expected damage that might be caused to civilians. There is no set formula according to which it is possible to weigh the civilian damage against the expected military benefit from the offensive; but it is a question of degree. An offensive would not be considered legitimate if it presented a significant risk to many civilian lives in return for gaining a subordinate military objective. 
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, p. 27.
The manual further states:
The rules of war have laid down a number of rules of engagement in a theatre of war containing civilians:
- Even if it is not possible to isolate civilians from the military target and there is no choice but to attack, the commanding officer is required to refrain from conducting an attack that could be expected to cause the civilian population damage that is disproportionate to the expected military gain. 
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, pp. 27–28.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
In its judgment in the Public Committee against Torture in Israel case in 2006, Israel’s High Court of Justice stated:
Proper Proportion between Benefit and Damage
45. The proportionality test determines that attack upon innocent civilians is not permitted if the collateral damage caused to them is not proportionate to the military advantage (in protecting combatants and civilians). In other words, attack is proportionate if the benefit stemming from the attainment of the proper military objective is proportionate to the damage caused to innocent civilians harmed by it. That is a values based test. It is based upon a balancing between conflicting values and interests (see Beit Sourik, at p. 850; HCJ 7052/03 Adalah – The Legal Center Arab Minority Rights in Israel (unpublished, paragraph 74 of my judgment, hereinafter Adalah). It is accepted in the national law of various countries. It constitutes a central normative test for examining the activity of the government in general, and of the military specifically, in Israel. In one case I stated:
“Basically, this subtest carries on its shoulders the constitutional view that the ends do not justify the means. It is a manifestation of the idea that there is a barrier of values which democracy cannot surpass, even if the purpose whose attainment is being attempted is worthy” (HCJ 8276/05 Adalah - The Legal Center for Arab Minority Rights in Israel v. The Minister of Defense (unpublished, paragraph 30 of my judgment; see also ROBERT ALEXY, A THEORY OF CONSTITUTIONAL RIGHTS 66 (2002)).
As we have seen, this requirement of proportionality is employed in customary international law regarding protection of civilians (see CASSESE, at p. 418; Kretzmer, at p. 200; Ben-Naftali & Michaeli, at p. 278; see also Gardam; as well as §51(2)(III) of The First Protocol [1977 Additional Protocol I], which constitutes customary law). When the damage to innocent civilians is not proportionate to the benefit of the attacking army, the attack is disproportionate and forbidden.
46. That aspect of proportionality is not required regarding harm to a combatant, or to a civilian taking a direct part in the hostilities at such time as the harm is caused. Indeed, a civilian taking part in hostilities is endangering his life, and he might – like a combatant – be the objective of a fatal attack. That killing is permitted. However, that proportionality is required in any case in which an innocent civilian is harmed. Thus, the requirements of proportionality stricto senso must be fulfilled in a case in which the harm to the terrorist carries with it collateral damage caused to nearby innocent civilians. The proportionality rule applies in regards to harm to those innocent civilians (see § 51(5)(b) of The First Protocol). The rule is that combatants and terrorists are not to be harmed if the damage expected to be caused to nearby innocent civilians is not proportionate to the military advantage in harming the combatants and terrorists (see HENCKAERTS & DOSWALD-BECK, at p. 49). Performing that balance is difficult. Here as well, one must proceed case by case, while narrowing the area of disagreement. Take the usual case of a combatant, or of a terrorist sniper shooting at soldiers or civilians from his porch. Shooting at him is proportionate even if as a result, an innocent civilian neighbor or passerby is harmed. That is not the case if the building is bombed from the air and scores of its residents and passersby are harmed (compare DINSTEIN, at p. 123; GROSS, at p. 621). The hard cases are those which are in the space between the extreme examples. There, a meticulous examination of every case is required; it is required that the military advantage be direct and anticipated (see §57(2)(iii) of The First Protocol). Indeed, in international law, as in internal law, the ends do not justify the means. The state’s power is not unlimited. Not all of the means are permitted. The Inter-American Court of Human Rights pointed that out, stating:
“[R]egardless of the seriousness of certain actions and the culpability of the perpetrators of certain crimes, the power of the state is not unlimited, nor may the state resort to any means to attain its ends” (Velasquez Rodriguez v. Honduras, I/A Court H.R. (Ser. C.), No 4, 1, para. 154 (1988)).
However, when hostilities occur, losses are caused. The state’s duty to protect the lives of its soldiers and civilians must be balanced against its duty to protect the lives of innocent civilians harmed during attacks on terrorists. That balancing is difficult when it regards human life. It raises moral and ethical problems (see Asa Kasher & Amos Yadlin, Assassination and Preventative Killing, 25 SAIS REVIEW 41 (2005). Despite the difficulty of that balancing, there’s no choice but to perform it. 
Israel, High Court of Justice, Public Committee against Torture in Israel case, Judgment, 14 December 2006, §§ 45–46.
In 2006, Israel’s Ministry of Foreign Affairs stated:
In practice, [the principle of proportionality] requires that the IDF [Israel Defense Forces] and the commander in the field assess both the expected military gain, and the potential of collateral injury to Lebanese civilians. With regard to the expected military gain, it should be noted that the relevant advantage is not that of that specific attack but of the military operation as a whole. As the German Military Manual points out:
The term “military advantage” refers to the advantage which can be expected of an attack as a whole and not only of isolated or specific parts of the attack.
It should also be recalled that, as noted above, the relevant consideration to gauge the legitimacy of a response to an act of aggression is not the attacks which have already been committed, but the “overall objective of ending the aggression”. In Israel’s case this means that its response has to be measured not only in respect of the initial Hizbullah cross-border attack, or even the missiles which have already been fired at Israel’s northern towns and villages (some 2,500 at time of writing), but also against the threat of the estimated 13,000 missiles which Hezbollah still has and threatens to use against Israel. 
Israel, Responding to Hizbullah Attacks from Lebanon: Issues of Proportionality, Legal Background, Ministry of Foreign Affairs of Israel, 25 July 2006, § 4.
In 2007, Israel’s Ministry of Foreign Affairs stated in a diplomatic note:
In practice, [the principle of proportionality] requires that the IDF [Israel Defense Forces] and the commander in the field assess both the expected military gain, and the potential of collateral injury to Lebanese civilians. With regard to the expected military gain, it should be noted that the relevant advantage is not that of that specific attack but of the military operation as a whole. As the German Military Manual points out:
The term “military advantage” refers to the advantage which can be expected of an attack as a whole and not only of isolated or specific parts of the attack. 
Israel, Israel’s War with Hizbullah. Preserving Humanitarian Principles While Combating Terrorism, Diplomatic Notes No. 1, Ministry of Foreign Affairs of Israel, April 2007, pp. 13–14.
In 2009, in a report on Israeli operations in Gaza between 27 December 2008 and 18 January 2009 (the “Gaza Operation”, also known as “Operation Cast Lead”), Israel’s Ministry of Foreign Affairs stated:
123. … [I]nternational law confirms the need to assess proportionality from the standpoint of a “reasonable military commander,” possessed of such information as was available at the time of the targeting decision and considering the military advantage of the attack as a whole. Moreover, the balancing may not be second-guessed in hindsight, based on new information that has come to light; it is a forward-looking test based on expectations and information at the time the decision was made. This perspective is confirmed by the use of the word “anticipated” within the text of the rule itself, as well as in the explanations provided by numerous States in ratifying [the 1977] Additional Protocol I.
126. The same criteria for assessing “military advantage” apply in the proportionality context, namely that the “military advantage anticipated” from a particular targeting decision must be considered from the standpoint of the overall objective of the mission. In addition, it may legitimately include not only the need to neutralise the adversary’s weapons and ammunition and dismantle military or terrorist infrastructure, but also – as a relevant but not overriding consideration – protecting the security of the commander’s own forces.
127. The standard does not penalise commanders for making close calls. Rather, it is intended to prohibit “manifestly disproportionate collateral damage inflicted in order to achieve operational objectives,” because this results in the action essentially being a “form of indiscriminate warfare.” 
Israel, Ministry of Foreign Affairs, The Operation in Gaza 27 December 2008–18 January 2009: Factual and Legal Aspects, 29 July 2009, §§ 123 and 126–127.
[emphasis in original; footnotes in original omitted]