Australia

Practice Relating to Rule 14. Proportionality in Attack

Section A. General
III. Military Manuals
Australias Defence Force Manual (1994) states:
Collateral damage may be the result of military attacks. This fact is recognised by LOAC and, accordingly, it is
not unlawful to cause such injury and damage. The principle of proportionality dictates that the results of such
action must not be excessive in light of the military advantage anticipated from the attack.

Australias LOAC Manual (2006) states:

5.1 Due regard must be paid to the principle of proportionality

5.9 Proportionality requires a commander to weigh the military value arising from the success of the operation
against the possible harmful effects to protected persons and objects. There must be an acceptable
relationship between the legitimate destruction of military targets and the possibility of consequent collateral
damage.

5.30 Attacks on military objectives that cause incidental loss or damage to civilians are not prohibited as long
as the proportionality rule is complied with

5.38 Collateral damage may be the result of military attacks. This fact is recognised by the LOAC and,
accordingly, it is not unlawful to cause such injury and damage. The principle of proportionality dictates that the
results of such action must not be excessive in light of the military advantage anticipated from the attack.

5.61 [Duties of Australian Defence Force commanders include] refraining from launching any attack which may
be expected to cause collateral injury, or collateral damage, which would be excessive in relation to the
concrete and direct military advantage anticipated.

[The 1977 Additional Protocol I] extends the definition of grave breaches to include the following acts when
committed wilfully, in violation of the relevant provisions of the protocol, and causing death or serious injury to
body or health:

- launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that
such attack will cause excessive loss of life, injury to civilians or damage to civilian objects.

IV. National Legislation

Australias Geneva Conventions Act (1957), as amended in 2002, provides: A person who, in Australia or
elsewhere, commits a grave breach of [the 1977 Additional Protocol I] is guilty of an indictable offence.

The grave breaches provisions in this Act were removed in 2002 and incorporated into the Criminal Code
Act (1995).
Australias Criminal Code Act (1995), as amended to 2007, states with respect to serious war crimes that
are committed in the course of an international armed conflict:
268.38 War crime excessive incidental death, injury or damage
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator launches an attack; and
(b) the perpetrator knows that the attack will cause incidental death or injury to civilians; and
(c) the perpetrator knows that the death or injury will be of such an extent as to be excessive in relation to
the concrete and direct military advantage anticipated; and
(d) the perpetrators conduct takes place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator launches an attack; and
(b) the perpetrator knows that the attack will cause:
(c) the perpetrator knows that the damage will be of such an extent as to be excessive in relation to the
concrete and direct military advantage anticipated; and
(d) the perpetrators conduct takes place in the context of, and is associated with, an international armed
conflict.
Penalty for a contravention of this subsection: Imprisonment for 20 years.

Australias ICC (Consequential Amendments) Act (2002) incorporates in the Criminal Code the war crimes
defined in the 1998 ICC Statute, including launching an attack which causes excessive incidental death,
injury or damage in international armed conflicts.

VI. Other National Practice

During the Second Reading Speech of the Geneva Conventions Amendment Bill 1990 in the House of
Representatives, the purpose of which was to amend the Geneva Conventions Act of 1957 so as to enable
Australia to ratify the 1977 Additional Protocol I, Australias Attorney-General stated:
Additionally, the protocols do not require no civilian casualties. That is not in the game at all. The protocols do
not say that in any clause. The protocols require the military leadership to assess whether or not civilian losses
would be in proportion to the military objectives to be achieved by the attack in question. We all know that it is
not always easy to get the right balance in these areas that is accepted but I think that it is just about being
obtained here. It is certainly being done as well as it can be.

In a press release issued in 1991, an Australian Senator asserted that Article 51(5)(b) of the 1977
Additional Protocol I would bar Australian ships from providing naval gunfire support (NGS) to an
amphibian landing in Kuwait and from engaging batteries located in a heavily populated port. According to
the Senator, it would prove very difficult for an Australian naval commander to determine whether a shore
bombardment would or would not injure civilians or damage civilian property to an extent that would be
excessive in relation to the direct military advantage.

In 2008, in response to a question without notice on Georgia in the House of Representatives, Australias
Minister for Foreign Affairs stated:
[E]arlier this month, following the incursion of Georgian forces into South Ossetia, the Russian Federation
deployed a large-scale military offensive in Georgia, not restricted to South Ossetia. That large-scale military
offensive implemented and effected large-scale devastation upon parts of Georgia, including military and
economic points.
The actions of the Russian Federation in this respect were clearly disproportionate.
We urge the Russian Federation to engage fully in international affairs through the relevant regional
multilateral forums through discussion, not through the disproportionate use of military force of arms.

Section B. Determination of the anticipated military advantage

III. Military Manuals
Australias Defence Force Manual (1994) refers to the declaration made by Australia upon ratification of the
1977 Additional Protocol I to the effect that references to military advantage in Articles 51(5)(b) and 57 of
the Protocol mean the advantage anticipated from the attack as a whole and not only from isolated or
particular parts of the attack and that military advantage involves a number of considerations, including
the security of the attacking forces.

Australias LOAC Manual (2006) states:

5.10 In relation to G. P. I [1977 Additional Protocol I], Australia has made a declaration to the effect that the
Australian Governments understanding is that references to military advantage in Articles 51(5)(b) and 57
mean:
the advantage anticipated from the attack as a whole and not only from isolated or particular parts of the
attack.
5.11 In addition, the declaration makes it clear that military advantage involves a number of considerations,
including the security of attacking forces

VI. Other National Practice

Upon ratification of the 1977 Additional Protocol I, Australia stated that references to military advantage
were intended to mean the advantage anticipated from the attack considered as a whole and not only from
isolated or particular parts of that attack and maintained that the term military advantage involved a
number of considerations, including the security of the attacking forces. Australia also stated that the
expression concrete and direct military advantage anticipated meant a bona fide expectation that the
attack will make a relevant and proportional contribution to the objective of the military attack involved.

Section C. Information required for judging proportionality in

attack
III. Military Manuals
Australias Defence Force Manual (1994) refers to the declaration made by Australia upon ratification of the
1977 Additional Protocol I to the effect that ADF [Australian Defence Force] commanders will, by necessity,
have to reach decisions on the basis of their assessment of the information available to them at the
relevant time.

Australias LOAC Manual (2006) refers to the declaration made by Australia upon ratification of the 1977
Additional Protocol I to the effect that ADF [Australian Defence Force] commanders will, by necessity, have
to reach decisions on the basis of their assessment of the information available to them at the relevant
time.

VI. Other National Practice

Upon ratification of the 1977 Additional Protocol I, Australia stated:
In relation to Articles 51 to 58 inclusive it is the understanding of Australia that military commanders and others
responsible for planning, deciding upon, or executing attacks, necessarily have to reach their decisions on the
basis of their assessment of the information from all sources, which is available to them at the relevant time.