论武装冲突中比例原则的适用

On the Application of the Principle of Propotionality in Armed Conflict

武装冲突中,比例原则旨在寻求军事利益与平民保护两种价值之间的平衡,在不脱离现实的同时,给予平民居民和民用物体最大限度的保护。由于在概念的理解上缺乏明确指南,比例原则在实践中的适用并不乐观:比例原则强调攻击必须具备"具体和直接的军事利益",对它的理解与评估是适用比例原则的关键;附带损害的范围界定在实践中最具代表性的挑战则是如何认定军民两用物体在攻击中受损害以及攻击所带来的衍生影响;而合比例性评估的问题上,主要是一种价值判断。

In the case of armed conflict, the principle of proportionality aims to balance two values, namely military advantage and civilian protection. Without going beyond the reality, those rules on proportionality will facilitate to protect, to the fullest extent practicable, civilian population and objects. In the absence of clarifications on the interpretation of its concept, the principle of proportionality is frequently abused for its application inpractice. Under the modem formulation of proportionality, on the hand, an attack shall offer a concrete and direct military advantage, the interpretation and assessment of which will be of the great importance ; on the other hand , incidental harm to civilians and civilian objects would not be excessive in relation to the military advantage anticipates. The most significate challenge is to the scope of collateral damages, especially the identification of the harm to dual - use objects and the reverberating effects caused by an attack, it is widely acknowledged that assessment of the principle of proportionality is mainly a value judgement.