Practice Relating to Rule 14. Proportionality in Attack
Spain’s LOAC Manual (1996) states:
The principle of proportionality seeks to limit the damage caused by military operations. It is based on a recognition of the fact that it is difficult to limit the effects of modern means and methods of warfare exclusively to military objectives and that it is likely that they will cause collateral damage to civilians and civilian objects.
The manual specifies, however:
An attack is prohibited if, during the planning phase, the available information makes it foreseeable that the damage to the civilian population and/or to civilian objects which the attack will cause is excessive in relation to the military advantage anticipated from the attack as a whole.
The manual further states that “launching an indiscriminate attack affecting the civilian population or civilian objects which would be excessive in relation to the military advantage anticipated” constitutes a grave breach.
Spain’s LOAC Manual (2007) states:
2.5. PRINCIPLE OF PROPORTIONALITY
While the principle of military necessity alters the normal conduct of combatants, the principle of proportionality seeks to limit the harm and damage caused by military operations, acknowledging that, with the use of modern methods and means of warfare, it is unlikely that the impact will be confined to military objectives and there is likely to be incidental loss of civilian life, injury to civilians and collateral damage to civilian objects. The principle of proportionality obliges military commanders to weigh the anticipated military advantage that it expects to gain with the attack against the incidental harm and collateral damage that it could cause. The principle of proportionality is established, in general terms, in the prohibition on using means and methods of warfare capable of causing superfluous injury or unnecessary suffering and, in specific terms, in the provisions listed below.
2.5.a. PRINCIPLE OF PROPORTIONALITY IN PLANNING
It is prohibited to launch an attack on a military objective when, based on information available in the planning phase, it could be expected to lead to casualties among the civilian population or cause damage to civilian property which would be excessive in relation to the military advantage anticipated from the attack considered as a whole.
Spain’s Penal Code (1995) punishes “anyone who, during an armed conflict, … carries out or orders an … excessive attack”.
Spain’s Law on the Rights and Duties of Members of the Armed Forces (2011) states:
Article 2. Scope of application
1. This law applies to all members of the Armed Forces who acquire the status of military personnel in accordance with Law 39/2007, of 19 November, on Military Career. Accordingly, it applies to official members of the armed forces, except for those persons in administrative roles whose status as military personnel is suspended and students undergoing military training.
2. This status applies to members of the reserves and aspirants when they are incorporated into the armed forces …
Article 6. Rules of conduct of military personnel
1. The essential rules governing the conduct of military personnel are the following:
To be prepared to face with courage, self-denial and a spirit of service, situations of combat, in all missions of the Armed Forces and situations of crisis, conflict or war in which they carry out or exercise their functions.
To use force in a gradual and proportionate way in the legitimate use of force, in accordance with the rules of engagement established for the operation participated in.
In 2010, in the Couso case, which concerned the killing of a Spanish journalist in Baghdad on 8 April 2003 by troops of the United States of America, the Criminal Chamber of Spain’s Supreme Court held:
As alleged [by the appellants], the appealed order [presently under review] seems to place an emphasis, in order to terminate the proceedings, on the second section of Article 611(1) of the PC [Penal Code (1995)] … when it is clear that on the last occasion the examining magistrate also based his proceedings on the first section referring to those who carry out or order an … excessive attack … [T]he latter should be evaluated by the Court, as was expressed in the dissenting opinion, according to the principles of International Humanitarian and customary law, and not in an anticipated manner. As a result the appealed order lacks the necessary reasoning, as it ignores the substantial grounds [raised] in the second indictment order …
In addition, the appealed order … reaches a conclusion concerning the termination of the proceedings in accordance with Article 637(2) LECr [Law on Criminal Prosecution of 1881] (as the facts did not constitute an offence) solely based on the allegation that there was a mistake by the acting [US] armed forces.
In this way, the order insists …
“[the event] is an isolated attack, characterized as a military operation in the context of the armed conflict in Iraq in 2003, … and not seeking to result in an extreme physical or psychological disturbance aimed at punishing the presence of authorized members of the media”.
[emphasis in original]
On the issue concerning breach of the law due to the failure to apply Article 611 of the Penal Code, the Court noted:
2. Article 611 of the PC effectively punishes
“anyone who in the event of an armed conflict commits [any of the following acts], without prejudice to the penalty for the results of such acts, shall be punished with ten to fifteen years’ imprisonment:
1. Carries out or orders an excessive
[emphasis in original]
The Court also referred to norms of IHL relevant to the case under review, including Article 57(2)(a)(iii) of the 1977 Additional Protocol I.
On the breach of the law, the Court held:
The appealed decision declared the termination of the proceedings … as it considered that the “facts [of] the case did not constitute an offence
” … [H]owever, the proceedings carried out do not permit sharing the conclusions of the first instance tribunal; rather, the facts [denounced] merit being subsumed under the cited penal provisions and the aforementioned norms of International Humanitarian Law.
[emphasis in original]
In deciding upon the failure to apply the national and international provisions on the principle of proportionality, the Court held:
1. … [T]here is no indication that the hotel was being used as a “shield” to commit an action against the accused, as was claimed by the Prosecution Service at one point and accepted by the appealed order. There is no trace – as opposed to what is stated in the order – that there was a visual mistake concerning the presence of a sniper … in the hotel. … [There is also no evidence] that the [US] tank was fired upon in the 35 minutes prior [to the attack on the hotel] or that there was anti-vehicle artillery capable of reaching it from the hotel, taking into account that the tank was more than 1500 metres away and that an RPG grenade launcher does not reach more than 650 metres. …
2. Due to their similarity with this matter, we must refer to what has been said in relation to the fifth and sixth issues raised by the previous appellants concerning the existence of rational indications of the commission of an offence which violate the ius in bello
, namely the norms of International Humanitarian Law that must be observed by belligerents.
[emphasis in original]
The Court upheld the appeal against the order of 23 October 2009 by the Third Section of the Criminal Chamber of the Spanish National Court, which declared the termination of the proceedings, and held that “the proceedings must continue, and the outstanding preparatory enquiries must be undertaken, as well as any others arising from the clarification of the events under investigation.”
On the basis of statements by the Spanish Minister of Foreign Affairs and Minister of Defence, the Report on the Practice of Spain states: “The Spanish government has, in general, advocated respect for the principle of proportionality during the conflict in Chechnya, the Turkish attacks on the Kurds in northern Iraq and the conflict in Bosnia and Herzegovina.”