Practice Relating to Rule 14. Proportionality in Attack
Norway’s Military Penal Code (1902), as amended in 1981, provides:
Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the two additional protocols to [the 1949 Geneva] Conventions … is liable to imprisonment.
Norway’s Penal Code (1902), as amended in 2008, states:
Any person is liable to punishment for a war crime who in connection with an armed conflict … launches an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects … which would be excessive in relation to the concrete and direct overall military advantage anticipated.
In 2006, during a debate in the UN Security Council, the permanent representative of Norway stated regarding the situation in Gaza: “The current operations raise a number of issues of international law, whether they are police operations or military operations. According to international law any use of violence shall be necessary and proportionate.”
In 2006, during a UN Security Council meeting, the Norwegian Minister for Foreign Affairs stated with regard to the situation in Lebanon and Gaza: “While recognizing Israel’s inherent right to self-defence, all use of armed force must satisfy [the] requirements of … proportionality. … Indiscriminate and excessive use of force [is] prohibited. Norway urges Israel not to resort to disproportionate action.”
In 2009, in a statement at the Second Review Conference of the Ottawa Convention on Anti-Personnel Mines, the Minister of Foreign Affairs of Norway stated: “In armed conflicts, international humanitarian law accepts the need to strike a balance between military necessity and humanitarian concerns.”
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.
The annual report of the Secretary-General paints a gloomy picture of the situation around the world for children in armed conflict. ISIL has been listed as violating all triggers of violence against children, a result of their appalling atrocities. In Syria, the systematic use of indiscriminate aerial weapons, such as barrel bombs, account for the overwhelming majority of civilian casualties, including children. This cannot be allowed to continue. And during hostilities in Gaza last summer, civilians, including children, bore the brunt of the suffering. At least 540 Palestinian children were killed and hospitals and schools were severely damaged or destroyed, including UN facilities. The scale of the impact on children was unprecedented and unacceptable.
These facts and all other incidents listed in the report are utterly disturbing and raise serious concern about the observance of the rules of international humanitarian law, including the [principle] of … proportionality.