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2.4.1 Proportionality as a Limit on the Exercise of a Right.2.4.1.1 Justification in Acting. Proportionality addresses cases in which one isjustified in acting. In jus in bello, the justification at issue generally is military necessity. So, forexample, an attack on enemy soldiers that incidentally damages civilian property would triggerproportionality considerations. On the other hand, where there is no justification for acting, suchas unlawful attacks directed against the civilian population, proportionality concerns would notbe reached.2.4.1.2 Unreasonable or Excessive. Proportionality generally weighs thejustification for acting against the expected harms to determine whether the latter aredisproportionate in comparison to the former. In war, incidental damage to the civilianpopulation and civilian objects is unfortunate and tragic, but inevitable. 69 Thus, applying theproportionality rule in conducting attacks does not require that no incidental damage result fromattacks. Rather, this rule obliges persons to refrain from attacking where the expected harmincidental to such attacks would be excessive in relation to the military advantage anticipated tobe gained. 70Under the law of war, judgments of proportionality often involve difficult and subjectivecomparisons. 71 Recognizing these difficulties, States have declined to use the term“proportionality” in law of war treaties because it could incorrectly imply an equilibriumbetween considerations or suggest that a precise comparison between them is possible. 722.4.2 Proportionality and the Law of War. The principle of proportionality is reflected inmany areas in the law of war.Proportionality most often refers to the jus in bello standard applicable to personsconducting attacks. 73 Proportionality considerations, however, may also be understood to applyto the party subject to attack, which must take feasible precautions to reduce the risk of68 General George S. Brown, Chairman of the Joint Chiefs of Staff, Address: Duke University School of Law, Oct.10, 1974, reprinted in ADDRESSES AND STATEMENTS BY GENERAL GEORGE S. BROWN, USAF, CHAIRMAN, JOINTCHIEF OF STAFF 1974-1978 (1978) (“We recognize that wanton destruction and unnecessary suffering are bothviolations of these military developed legal principles and counterproductive to the political military goals of theNation. The law of ‘proportionality’ is simply a legal restatement of the time honored military concept of ‘economyof force.’”).69 Refer to § 1.4.2 (Nature of War).70 Refer to § 5.12 (Proportionality in Conducting Attacks).71 Refer to § 5.12.4 (“Excessive”). Compare § 2.2.3 (Applying Military Necessity).72 See, e.g., BOTHE, PARTSCH, & SOLF, NEW RULES 309-10 (AP I art. 51, 2.6.2) (describing how some governmentdelegations in the 1974-1977 Diplomatic Conference opposed incorporation of the term “proportionality” oracknowledgement of a law of war “rule” of proportionality in AP I and AP II).73 Refer to § 5.12 (Proportionality in Conducting Attacks).61