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Do Soldiers' Lives Matter? A View from Proportionality

  • Reuven (Ruvi) Ziegler (a1) and Shai Otzari (a2)

A military operation is about to take place during an ongoing international armed conflict; it can be carried out either by aerial attack, which is expected to cause the deaths of enemy civilians, or by using ground troops, which is expected to cause the deaths of fewer enemy civilians but is expected to result in more deaths of compatriot soldiers. Does the principle of proportionality in international humanitarian law impose a duty on an attacker to expose its soldiers to life-threatening risks in order to minimise or avert risks of incidental damage to enemy civilians? If such a duty exists, is it absolute or qualified? And if it is a qualified duty, what considerations may be taken into account in determining its character and scope?

This article presents an analytic framework under the current international humanitarian law (IHL) legal structure, following a proportionality analysis. The proposed framework identifies five main positions for addressing the above queries. The five positions are arranged along two ‘axes’: a value ‘axis’, which identifies the value assigned to the lives of compatriot soldiers in relation to lives of enemy civilians; and a justification ‘axis’, which outlines the justificatory bases for assigning certain values to lives of compatriot soldiers and enemy civilians: intrinsic, instrumental or a combination thereof. The article critically assesses these positions, and favours a position which attributes a value to compatriot soldiers' lives, premised on a justificatory basis which marries intrinsic considerations with circumscribed instrumental considerations, avoiding the indeterminacy and normative questionability entailed by more expansive instrumental considerations.

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George Fletcher , ‘Reclaiming Fundamental Principles of Criminal Law in the Darfur Case’ (2005) 3 Journal of International Criminal Justice 539, 561

Jeff McMahan , ‘The Ethics of Killing in War’ (2004) 114 Ethics 693

Thomas Hurka , ‘Proportionality in the Morality of War’ (2005) 33 Philosophy and Public Affairs, 34, 44

Gabriella Blum , ‘The Dispensable Lives of Soldiers’ (2010) 2 Journal of Legal Analysis 69, 7174

Thomas Smith , ‘Protecting Civilians … or Soldiers? Humanitarian Law and the Economy of Risk in Iraq’ (2008) 9 International Studies Perspectives 144, 146–7

Asa Kasher , ‘The Principle of Distinction’ (2007) 6 Journal of Military Ethics 152, 166

Frances Kamm , ‘Failures of Just War Theory: Terror, Harm, and Justice’ (2004) 114 Ethics 650, 674;

David Lefkowitz , ‘Partiality and Weighing Harm to Non-Combatants’ (2009) 6 6 Journal of Moral Philosophy 298

Michael S Moore , Act and Crime: The Philosophy of Action and its Implications for Criminal Law (OUP2010) 34

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Israel Law Review
  • ISSN: 0021-2237
  • EISSN: 2047-9336
  • URL: /core/journals/israel-law-review
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