Robert Kolb, Margaux Germanier
The International Criminal Tribunal for the former Yugoslavia’s Prosecutor v. Prlić et al. Appeals Chamber judgment, as well as the Eritrea-Ethiopia Claims Commission’s Western Front arbitral award found that a bridge and an electrical power station, respectively, were military objectives in their entirety, although they simultaneously served both military and civilian purposes. In a similar manner, several States consider that objects composed of both military and civilian parts are military objectives in their entirety, meaning that they can be made the object of an attack. This is evident, for example, in the military manuals of the United States (p. 217, 1034), United Kingdom (p. 54), Australia (p. 5-7), New Zealand (p. 8-10), and Denmark (p. 300).
According to this view, when assessing proportionality, commanders confronted with a military objective that also serves a civilian purpose must consider the expected incidental harm to civilians and civilian infrastructure occurring outside the target. However, there is no requirement for the commander to assess the incidental harm resulting from curtailing the civilian use of the targeted object itself.
The experts who drafted an International Committee of the Red Cross (ICRC) report on proportionality defined “external proportionality” as “harm to civilians or objects other than the dual-use object targeted … whether or not the targeted object was a dual-use object or an object used solely for military purposes” (p. 39). Conversely, “internal proportionality” is a balance between the potential military advantage gained and the expected civilian harm obtained by the “destruction of the civilian part of the object” or by the “ending [of] its civilian use or function.” In short, external proportionality goes only to the loss of life, injury, or destruction of objects outside the targeted objective, whereas internal proportionality concerns the impairment of the civilian functions of the attacked object itself. The first is assessed according to one or more steps of causation (the destruction of object X also impacts object Y in the surroundings; or reverberating effects), the second requires zero steps of causation (object X alone).
More precisely, there are two types of “internal” proportionality, one in the narrower and one in the larger sense. First, regarding the narrow category, the civilian activities take place inside the attacked object, and its impairment renders these activities more difficult or impossible. Thus, if a hospital is targeted because it is a military objective, its destruction will impede the use of the place to take care of the wounded and sick civilians, who in turn may die. Second, from a broader perspective, the civilian activities take place outside the attacked object, but they are based on the contribution this object makes to their functioning.
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