Collateral Damage and Individual Rights in Armed Conflict
Abstract:
The tragic war in Gaza has focused the world’s attention on the humanitarian consequences of armed conflict. Residential buildings, schools, places of worship, and hospitals have been destroyed. Tens of thousands of civilians, including children, have been killed and much of the Palestinian population has been displaced.
Although the principle of proportionality was developed in the specific context of IACs, it has more recently been applied to a different type of conflict: non-international armed conflicts (NIACs). These conflicts, which involve states fighting terrorist groups or non-state armed groups (NSAGs), were historically regulated in a different manner than IACs. The concern that states fighting such transnational conflicts might be unencumbered by international legal restraints precipitated an effort to treat the fundamental rules of IAC (including the principle of proportionality) as rules of customary international law applicable in NIACs. The harmonization of the IHL rules applicable in both types of conflict has generally been viewed as a positive development, and the idea that the principle of proportionality now applies in all conflicts is largely unquestioned.
This Article tells a different, and more critical, story about the emergence of the principle of proportionality in NIACs. I argue that the concerted effort to extend this principle to NIACs—which was championed by different actors with different motivations—was misguided as a matter of law and morality. Rather than protecting civilians in NIACs, the application of the principle of proportionality to these conflicts set back the significant advancements in human rights law over the past decades, and particularly the idea that the protection of individual rights is a proper function of international law.
Recommended Citation: Charles P. Trumbull IV, Collateral Damage and Individual Rights in Armed Conflict, 48 Fordham Int'l L.J. 521 (2025).