Noel Maurer Trew

Department: Strategy & Security Institute
Discipline: Politics

Project Summary

My research focuses on the jus in bello proportionality rule in the law of armed conflict (LOAC) and in international criminal law (ICL). From classical times to today, one can trace the trajectory of a debate between the proponents of restraint in warfare and those who believe that military necessity trumps any other consideration in war (kriegsraison). In the modern era, states have categorically rejected kriegsraison in favour of an equilibrium between the competing requirements of humanity and military necessity. However, there exists an uneasy tension between these two demands throughout the corpus of LOAC and in ICL. Nowhere is this more apparent than with the rule on proportionality in attack which, in its strictest sense, requires combatants to weigh the expected military advantage of an attack against the possibility of causing excessive damage to individual civilians or civilian objects.

The effectiveness of the proportionality rule as a legal concept depends upon the law’s ability to prevent disproportionate attacks ex ante and to determine proportionate from disproportionate attacks ex post. In the abstract, this principle appeals to an utilitarian logic that many would find intuitive; however, it is difficult to operationalise in such a way that protects non-combatants whilst allowing attackers to plan and execute operations under the proverbial ‘fog of war’. There is no cold calculus that one can perform to ensure that an attack has not caused excessive collateral damage because the law does not define the allowable proportion between military advantage and civilian losses with any specificity. Furthermore, in the ever-changing conditions of combat, a commander might not have the right information to even know for certain what the expected military advantage or collateral damage of an attack might be. The application of the rule is therefore left to the good faith judgement of those who plan and execute the attack. As a regulatory norm, this may be an effective way to prescribe what should constitute lawful behaviour before an attack takes place, since the ambiguity of the provision will tend to encourage conservative decision making. However, that same ambiguity makes it difficult for prosecutors to pursue accountability for allegations of disproportionate attack after the fact.

Therefore, the purpose of my project is to uncover the substantive, legal, and political barriers that make the crime of disproportionate attack a difficult one to prosecute.

Supervisory Team

My project is supervised by Dr Catarina P. Thomson from SSI and
Dr Aurel Sari from the Law School.