TY - JOUR
T1 - The Proportionality Principle in Operation
T2 - Methodological Limitations of Empirical Research and the Need for Transparency
AU - Fellmeth, Aaron
PY - 2012
Y1 - 2012
N2 - The principle of proportionality, notoriously obscure in application and subjective in interpretation, has been enforced so rarely as to call into question its potency as a meaningful international legal standard. Nonetheless, international criminal tribunals, academics, and the ICRC's monumental study on customary international humanitarian law all confidently proclaim the principle as embedded in the customary international law applicable to both international and non-international armed conflicts. To assess whether these claims are accurate, and to flesh out how states interpret the principle in practice, the author and a colleague have undertaken a long-term, multinational empirical study of state practice in interpreting and enforcing the proportionality principle. This article discusses the methodological options available and explains the one chosen for the proportionality study. The limitations of the study, in spite of its deliberate methodology, suggest that the debilities of the proportionality principle may not be conceptual as much as a byproduct of unnecessary military secrecy. This article concludes that greater transparency in state compliance with the rule of discrimination and the principle of proportionality would, at least, facilitate an understanding of how the hitherto obscure principle operates in practice and, at best, could create systemic effects that would decrease the dangers to civilians in armed conflicts.
AB - The principle of proportionality, notoriously obscure in application and subjective in interpretation, has been enforced so rarely as to call into question its potency as a meaningful international legal standard. Nonetheless, international criminal tribunals, academics, and the ICRC's monumental study on customary international humanitarian law all confidently proclaim the principle as embedded in the customary international law applicable to both international and non-international armed conflicts. To assess whether these claims are accurate, and to flesh out how states interpret the principle in practice, the author and a colleague have undertaken a long-term, multinational empirical study of state practice in interpreting and enforcing the proportionality principle. This article discusses the methodological options available and explains the one chosen for the proportionality study. The limitations of the study, in spite of its deliberate methodology, suggest that the debilities of the proportionality principle may not be conceptual as much as a byproduct of unnecessary military secrecy. This article concludes that greater transparency in state compliance with the rule of discrimination and the principle of proportionality would, at least, facilitate an understanding of how the hitherto obscure principle operates in practice and, at best, could create systemic effects that would decrease the dangers to civilians in armed conflicts.
KW - empirical research
KW - international humanitarian law
KW - law of war
KW - proportionality
KW - transparency
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U2 - 10.1017/S0021223711000057
DO - 10.1017/S0021223711000057
M3 - Article
AN - SCOPUS:84973401750
SN - 0021-2237
VL - 45
SP - 125
EP - 150
JO - Israel Law Review
JF - Israel Law Review
IS - 1
ER -