This chapter formulates guidance for applying the IHL proportionality rule by looking at its objectivity; the standard of the reasonable commander and the interpretation of the term ’excessive’.

This chapter contains an analysis of the practical application of the IHL proportionality rule by looking at a number of examples of factual situations.

This chapter contains an overview of the development of the IHL rule on proportionality in treaty law and a discussion of its existence as a customary IHL rule.

In addition to the IHL proportionality rule, IHL contains a number of other rules that fulfil a similar role as a standard of moderation and with a broader scope, including effects on enemy forces.

This chapter provides insight into the practical and legal context in which the proportionality rule must be applied: the targeting process; indiscriminate attacks and precautionary measures.

The aim of this chapter is to assess the different factors which comprise the IHL proportionality rule.

Introduction to the study of proportionality rule in international humanitarian law.

IHL proportionality as a principle of IHL and the manifestations of proportionality in other legal frameworks relating to the use of force.

This chapter pleads for a refocussed application of the IHL proportionality rule, tilting the balance more towards humanity; and analyses whether it needs to be clarified or changed.

Chapter 4 shows how the October 2019 killing of ISIS leader Abu Bakr al-Baghdadi became a platform for President Trump’s visual and verbal consolidations of necropolitical law. Announcing the killing at a press conference held at the White House Diplomatic Reception Room, Trump positioned himself in front of a portrait of America’s first president, George Washington, visually asserting Trump’s lineage in an always already necropolitical state, built, as it is, on the racialized pillars of territorial appropriation, genocide, and slavery. With the many flags of the US armed forces flanking Trump like an honor guard, the visuals of Trump’s announcement encode the two bodies of president/commander-in-chief, foregrounding the military as a key actor in the state’s implementation of necropolitical law. Chapter 4 shows how Trump used the occasion, first, to deepen the necropolitical separations animating necropolitical law and, second, to stage himself as the White, male, militarized hero central to spectacles of imperialism. Chapter 4 demonstrates how normalizing the necropolitics of imperialism past and present fosters the discounting of life legitimized by necropolitical law.

Chapter 4 explains the relevant rules of armed conflict that provide for the protection against the effects of hostilities. To the extent that humanitarian law protects civilians and civilian objects, it also protects foreign investors and their investments, as far as natural persons and tangible assets are concerned. The chapter shows how the law of armed conflict balances military and humanitarian concerns and illuminates the operation of the principles of distinction, proportionality, and precaution. In analysing the limitations of this protection, the chapter further identifies circumstances in which harm to foreign investors and their investments may be lawful under international humanitarian law. In particular, the chapter shows how foreign investments can easily become military targets and under which circumstances inflicted damage can be an acceptable side effect of military operations. The chapter thus forms the basis for the subsequent examination of international humanitarian law’s impact on individual investment treaty standards.

The chapter examines the legal and extra-legal difficulties in eliminating military objectives. It also attempts to verify the claim,often made in literature on the subject, that civilians account for the majority of victims of armed conflict. The review of legal complexities begins with the examination of the principle of proportionality, the requirement to take appropriate cautionary measures, and the prohibition of reprisals. Extra-legal difficulties include the following issues: the shift in the nature of contemporary armed conflict; the tendency to protect one’s own troops at the expense of other goals; the trend to deliberately attack populations perceived as vulnerable; using gender as a potential cause for targeting; insufficient precision of weapons used in action; and difficulty in obtaining reliable information on the status of a person or object.

Since the end of the Cold War there has been an age of primacy marked by a series of conflicts for which powerful states have chosen to go to war over nonvital interests against much weaker state or nonstate actors. In these asymmetric conflicts, the powerful have coerced concessions, imposed regime change, and suppressed the spread of violence through counterterrorism or counterinsurgency operations. Powerful nations have largely succeeded in achieving both their military and political objectives by taking advantage of asymmetries in technology to wage war from afar, at low risk to their own forces. War outcomes have not, however, always translated into broader foreign policy objectives of long-term peace and stability. This introductory chapter provides an overview of the evolution of air power theory, presents characteristics of contemporary air warfare and measures of military and political effectiveness, and then briefly assesses the ten air wars examined in subsequent chapters.

Chapter 14 describes lawful human targets, the first being enemy combatants. Their required characteristics, activities, and locations are covered, followed by exceptions to their lawful targeting: prisoners, those showing intent to surrender, and those incapacitated by wounds. Wrongful use of force investigations are detailed, to impress the fact that violations of an exempt targeting status have consequences within our own armed forces. What legal standard is applied to the shooter when investigating possible unlawful use of force? Lawful civilian targets are considered, as well: when one is targeted he may return fire on civilians in self-defense; and when civilians are directly participating in hostilities (DPH), as is often the case in recent conflicts. Significant space is devoted to explaining what constitutes DPH, as well as to continuous combat function, the higher form of DPH. Targeting of heads of state (e.g., Saddam Hussein, Adolf Hitler, the US president) is covered. Then, is there a duty to capture, rather than wound? To wound, rather than kill? Finally, the politically fraught killings of Iranian General Suliemoni and Anwar al-Aulaqi are examined for LOAC compliance.

Chapter 15 involves much of what has gone before; targeting both objects and human beings, core principles, individual status, and more. Artificial intelligence is described as applied to autonomous weapons, then as applied to LOAC’s core principles – difficult values for autonomous weapons to meet. To whom does criminal liability attach, should such weapons go awry? Designers? Builders? Users? These remain difficult LOAC issues that this chapter examines. Drones and their military use are discussed, including the American CIA’s use. Since CIA personnel are civilians, their involvement in targeting in armed conflict is unlawful, an issue discussed in this chapter. Targeted killing and its lawfulness are examined at length, as well as their relationship to assassination, an illegal act in US law. Targeted killing’s weak link, who decides which individuals should be killed, is also discussed. In the Cases and Materials section, the wrongful shooting down of an Iranian civilian airliner in 1988, that killed 290, is examined – a case study of autonomous weapons gone bad.

Chapter 13 covers LOAC that permits or restricts the targeting of enemy objects: “military objectives.” Lawful military objectives are defined. Economic targets and war-sustaining targets, contentious issues, are described, with the US minority position noted. World War II’s area bombing by all parties to the conflict is shown to be unlawful, unproductive and, today, unlawful. The widely used targeting criteria, lawful by virtue of nature, location, purpose or use, is expanded upon, with examples of each qualifier. That is followed by relating the six-step targeting process employed by US units in combat. Collateral damage and its avoidance efforts are discussed at length, with emphasis on Chapter 7’s core principles of distinction and proportionality. Unique targeting issues such as “dangerous forces” and dual-use targets are covered, with examples. Precautions in the attack do not sound particularly significant but they are essential LOAC constants. Two recent trial records are included in the Cases and Materials section to illustrate real-world legal consequences of disregarding the illegalities of targeting human beings, even ones’ enemies.

This chapter covers targeting law, which governs the ways in which weapons may be used in armed conflict. As integration of autonomous control into weapon systems necessarily affects the procedures to be followed in operating those weapons, it must be assessed with respect to the rules of targeting law. Specifically, autonomy in weapons relates to the ‘procedural’ side of targeting: questions of how the legal status of a potential target is to be assessed, what precautions must be taken in planning and conducting an attack, who is responsible for those tasks, and so forth. Accordingly, the first part of the chapter discusses the necessity for and general form of human involvement in planning and conducting autonomous attacks. It refutes the view that human involvement would or could be entirely missing from operations involving autonomous weapons. The second part steps through a model 6-step targeting process to explain the respective contributions of humans and autonomous systems at each stage.