Practice Relating to Rule 14. Proportionality in Attack
Peru’s IHL Manual (2004) states: “The Principle of Proportionality establishes that the use of methods and means of warfare must not be excessive in relation to the concrete and direct military advantage anticipated.”
The manual further states: “The rule of proportionality must be respected. According to this rule, all unnecessary suffering and damage must be avoided. It also prohibits all forms of violence that are not absolutely necessary to make the enemy submit.”
The manual also states: “Attacks are considered to be indiscriminate … if they violate the rule of proportionality.”
The manual further states:
In the immediate vicinity of the operations of the land forces, the bombardment of cities, towns, villages, habitations and buildings is legitimate, provided there is a reasonable presumption that the military concentration is important enough to justify the bombardment, taking into account the danger to which the civil population will be exposed.
Peru’s IHL and Human Rights Manual (2010) states: “The Principle of Proportionality establishes that the use of methods and means of warfare must not be excessive in relation to the concrete and direct military advantage anticipated.”
The manual also states: “The rule of proportionality must be respected, according to which unnecessary suffering and damage must be avoided. It also prohibits all forms of violence that are not absolutely necessary to make the enemy submit.”
In its Glossary of Terms, the manual also states: “Proportionality
. The term defines the principle designed to limit the harm caused by military operations. Proportionality requires that the effect of the means and methods of warfare employed not be disproportionate in relation to the military advantage sought.”
In a section entitled “Armed conflicts and the right to legitimate defence”, the manual further states:
The principles of Military Necessity and Proportionality apply to all armed conflicts and require that the use of force by the State, if not prohibited in any other way by International Humanitarian Law, does not exceed in terms of intensity or in terms of the means employed what is necessary to repel an armed attack against the State and to re-establish its security.
Peru’s Code of Military and Police Justice (2006) states:
A member of the military or police shall be imprisoned for a period of no less than eight and no more than 15 years if he or she in the context of an international or non-international armed conflict:
3. Directs an attack by any means in the knowledge that such an 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 military advantage anticipated.
This article is no longer in force. Along with certain other articles in this legislation, it was declared unconstitutional by the Constitutional Court (en banc decision for case file No. 0012-2006-PI-TC, 8 January 2007) because it does not stipulate a crime committed in the line of duty that would fall under the jurisdiction of a military court pursuant to Article 173 of Peru’s Constitution.
Peru’s Decree on the Use of Force by the Armed Forces (2010) states:
For the purposes of the present decree, the following terms are defined as:
b. Incidental (collateral) damage
: Unintentional consequence of military operations which may result in harming civilians or damaging civilian objects and whose qualification as excessive can be determined by assessing military necessity and proportionality in relation to the concrete and direct military advantage anticipated.
The Decree also states:
The following principles are recognized by the norms of international humanitarian law as applying before, during and after the use of force:
… authorizes a military operation when it is foreseeable that it will not cause incidental injury to the civilian population or incidental damage to civilian objects that would be excessive in relation to the anticipated concrete military advantage.
Peru’s Military and Police Criminal Code (2010), in a chapter titled “Crimes involving the use of prohibited methods in the conduct of hostilities”, states:
A member of the military or the police shall be punished with deprivation of liberty of not less than six years and not more than twenty-five years if, in a state of emergency and when the Armed Forces assume control of the internal order, he or she:
3. Carries out an attack by any means and in a way which may surely be expected to cause incidental loss of life or injury to civilians or damage to civilian objects that is disproportionate to the concrete military advantage anticipated.