Norma relacionada
Canada
Practice Relating to Rule 14. Proportionality in Attack
Section A. General
Canada’s LOAC Manual (1999) states:
The fact that an attack on a legitimate target may cause civilian casualties or damage to civilian objects does not necessarily make the attack unlawful under the LOAC. However, such collateral civilian damage must not be disproportionate to the concrete and direct military advantage anticipated from the attack.
The proportionality test is as follows: Is the attack expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof (“collateral civilian damage”) which would be excessive in relation to the concrete and direct military advantage anticipated? If the answer is “yes”, the attack must be cancelled or suspended. The proportionality test must be used in the selection of any target. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, pp. 4-2 and 4-3, §§ 17 and 18; see also p. 2-2, § 15, p. 6-3, § 29, p. 7-5, § 47 and p. 8-6, § 40.
The manual also states that “launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive collateral civilian damage” constitutes a grave breach. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 16-3, § 16(b).
Canada’s Code of Conduct (2001) explains that the principle of proportionality “imposes a duty to ensure that the collateral civilian damage created is not excessive in relation to the concrete and direct military advantage anticipated”. 
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 4 June 2001, Rule 2, § 1.
Canada’s LOAC Manual (2001) states:
This concept of humanity results in a specific prohibition against unnecessary suffering, a requirement of proportionality, and a variety of more specific rules. The concept of humanity also confirms the basic immunity of civilian populations and civilians from being objects of attack during armed conflict. This immunity of the civilian population does not preclude unavoidable incidental civilian casualties that may occur during the course of attacks against legitimate targets and that are not excessive in relation to the concrete and direct military advantage anticipated. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 202.6.
The manual further states:
4. Proportionality. The principle of proportionality establishes a link between the concepts of military necessity and humanity. This principle implies that collateral civilian damage arising from military operations must not be excessive in relation to the direct and concrete military advantage anticipated from such operations.
5. In deciding whether the principle of proportionality is being respected, the standard of measurement is the anticipated contribution to the military purpose of an attack or operation considered as a whole. The anticipated military advantage must be balanced against other consequences of the action, such as the adverse effect upon civilians or civilian objects. It involves weighing the interests arising from the success of the operation on the one hand, against the possible harmful effects upon protected persons and objects on the other.
6. There must be a rational balance between the legitimate destructive effect and undesirable collateral effects. As an example, you are not allowed to bomb a refugee camp if its only military significance is that refugees in the camp are knitting socks for soldiers. As a converse example, you are not obliged to hold back an air strike on an ammunition dump simply because a farmer is ploughing a field beside it. Unfortunately, most applications of the principle of proportionality are not quite so clear cut. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 204.4–6.
In its chapter on targeting, the manual states:
1. The fact that an attack on a legitimate target may cause civilian casualties or damage to civilian objects does not necessarily make the attack unlawful under the LOAC. However, such collateral civilian damage must not be disproportionate to the concrete and direct military advantage anticipated from the attack.
2. The proportionality test is as follows: Is the attack expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof (“collateral civilian damage”), which would be excessive in relation to the concrete and direct military advantage anticipated? If the answer is “yes”, the attack must be cancelled or suspended. The proportionality test must be used in the selection of any target. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 413.1–2.
The manual also explains, in the context of indiscriminate attacks:
1. Indiscriminate attacks are those that may strike legitimate targets and civilians or civilian objects without distinction. They are prohibited …
2. The following are examples of indiscriminate attacks:
b. an attack which does not meet the requirements of proportionality. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 416.1 and 2.b.
In its chapters on land warfare and naval warfare, the manual further states: “An attack expected to cause collateral civilian damage that is excessive in relation to the concrete and direct military advantage anticipated is prohibited.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, §§ 613.2 (land warfare) and 827.3 (naval warfare).
In its chapter on air warfare, the manual also states:
Air to land operations must be conducted in accordance with the principle of proportionality. This implies that collateral civilian damage must never be excessive in relation to the concrete and direct military advantage anticipated. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 716.3.
In its chapter on “War crimes, individual criminal liability and command responsibility”, the manual provides that “launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive collateral civilian damage” constitutes a grave breach of the 1977 Additional Protocol I. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1608.2.b.
In its glossary, the manual defines “collateral civilian damage” as “incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, arising from the use of military force”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, Glossary, p. GL-3.
Rule 2 of Canada’s Code of Conduct (2005) instructs Canadian Forces (CF) personnel: “In accomplishing your mission, use only the necessary force that causes the least amount of collateral civilian damage.” 
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 2005, Rule 2.
The Code of Conduct further explains:
1. Rule #2 deals with the legal obligation to minimize harm to civilians and their property while carrying out your mission. It balances the needs of military necessity against the humanitarian principle that civilians should be spared the hardship of conflict. This is known as the principle of proportionality. This principle imposes a duty to ensure that the collateral civilian damage created is not excessive in relation to the concrete and direct military advantage anticipated.
4. Whenever military force is used, civilians who are not directly involved in the conflict may be hurt and their property may be damaged … CF operations must be conducted in such a way that damage to civilians and their property is minimized. …
5. The question whether collateral civilian damage is acceptable is often referred to in terms of proportionality. Unfortunately, there is no scientific scale of “proportionality” on which to measure the permissible amount of collateral civilian damage. International law states that force should only be used against “military objectives.” Your commanders (and in some cases you) must decide if the collateral civilian damage resulting from the use of force is excessive in light of the direct and concrete military advantage anticipated. In most cases the assessment of what is an acceptable level of damage boils down to common sense. For example, the complete destruction of a town in order to eliminate a small pocket of opposing forces would be seen as unacceptable. In that case, the collateral civilian damage (numerous civilian casualties and widespread destruction of civilian property) would be excessive in light of the military advantage anticipated. Depending upon the goal of the mission and the accuracy or destructiveness of certain weapons systems, commanders may limit the types of weapons subordinates may use, or restrict the circumstances under which those weapons can be employed. Such restrictions are often found in the ROE [rules of engagement]. These restrictions are put in place to ensure that decisions with respect to the use of force made at the local level do not interfere with the overall goals of the military mission. Achieving your own local objective by any means, regardless of the consequences, cannot be allowed to place the overall mission at risk. The actions of each individual CF member must fit within the overall plan and goals of the mission, including the commander’s direction on the use of force. 
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 2005, Rule 1, §§ 1, 4 and 5.
Canada’s Use of Force Manual (2008) states:
Section I – General
101. Introduction
1. … The Canadian government, military commanders and all members of the CF [Canadian Forces] are subject to national and international laws. Both national and international law require that any use of force by the CF must be controlled and limited to the extent that is proportional or reasonable and necessary to achieve legitimate military objectives.
Section II – Legal foundations
104. International law
5. LOAC. The LOAC [law of armed conflict] was designed primarily for international armed conflicts (i.e., conflicts between states), though it has more recently developed rules for non-international armed conflicts (i.e., civil wars). …
6. … The LOAC … permits attacks that will result in the unintended death or wounding of innocent civilians, provided that these individuals are not the object of the attack, if the casualties suffered by them are incidental to an attack against a legitimate military objective, and that such incidental injuries or loss of life are proportional to the military objective sought.
7. As a matter of law, the LOAC applies to the conduct of CF operations whenever Canada is a party to an armed conflict. Armed conflict could be generally defined as the resort to the use of armed force between states (international armed conflict) or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state (non-international armed conflict).
Section IV – Principles and rules governing the use of force
112. Principles and rules governing the use of force that directly relates to the conduct of an armed conflict
4. Proportionality. Planners and commanders must refrain from launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. 
Canada, Use of Force for CF Operations, Canadian Forces Joint Publication, Chief of the Defence Staff, B-GJ-005-501/FP-001, August 2008, §§ 101.1, 104.5–104.7 and 112.4.
In its Glossary, the manual defines “proportionality” as follows: “The use of no more force than is reasonable and necessary for the proposed military task so as to avoid incidental loss of life, injury, damage to property, or combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.” 
Canada, Use of Force for CF Operations, Canadian Forces Joint Publication, Chief of the Defence Staff, B-GJ-005-501/FP-001, August 2008, Glossary, p. GL-4.
Canada’s Geneva Conventions Act (1985), as amended in 2007, provides that “every person who, whether within or outside Canada, commits a grave breach [of the 1977 Additional Protocol I] … is guilty of an indictable offence”. 
Canada, Geneva Conventions Act, 1985, as amended in 2007, Section 3(1).
Canada’s Crimes against Humanity and War Crimes Act (2000) provides that the war crimes defined in Article 8(2) of the 1998 ICC Statute are “crimes according to customary international law” and, as such, indictable offences under the Act. 
Canada, Crimes against Humanity and War Crimes Act, 2000, Section 4(1) and (4).
In 2013, in the Sapkota case, Canada’s Federal Court dismissed a request for review of a decision denying refugee protection to the applicant on grounds of complicity in crimes against humanity in Nepal between 1991 and 2009. While reviewing the submissions of the respondent, Canada’s Minister of Citizenship and Immigration, the Court stated: “The Respondent notes that the Rome Statute of the International Criminal Court … is endorsed in Canada as a source of customary law.” 
Canada, Federal Court, Sapkota case, Reasons for Judgment and Judgment, 15 July 2013, § 28.