Reframing the Proportionality Principle

By Newton, Michael A. | Vanderbilt Journal of Transnational Law, May 2018 | Go to article overview

Reframing the Proportionality Principle


Newton, Michael A., Vanderbilt Journal of Transnational Law


TABLE OF CONTENTS    I.    INTRODUCTION                                         868  II.    CORRECTING CICERO                                    869 III.    COMMONALITIES AMONG DIFFERENT USES OF                873         PROPORTIONALITY         A. The Pervasive Use of Negative Phraseology         873         B. Breadth of Permissible Discretion                 875  IV.    NORMATIVE CONTENT OF THE PROPORTIONALITY             878         PRINCIPLE         A. Additional Protocol I Formulations                880         B. The ICC Crime of Disproportionate                 882            Attacks   V.    CONCLUSION                                           885 

I. INTRODUCTION

Ours is the "era of proportionality" in the sense that proportionality is an integral aspect of legal and moral discourse in every effective legal system. (2) Within the law of war, termed jus in hello, proportionality is centrally important to achieving military efficiency and moral fairness. Combatants have affirmative rights under interconnected jus in bello principles, yet these rights carry correlative duties requiring that the loss of lives must be offset by equally serious matters if the conduct of war is to be justified. Military commanders see proportionality as an essential element of professional ethos that provides the necessary latitude to accomplish their strategic and tactical mandates. Proportionality simultaneously imposes concrete restraints over the conduct of armed conflicts when properly applied.

Proportionality may well be the most controversial imperative in waging modern conflicts from the legal, moral, and political perspectives. This is particularly problematic for war-fighters given the emergence of a globalized system of international accountability. The adversary's ability to broadcast (or perhaps fabricate) allegations of inappropriate conduct worldwide adds an unprecedented level of difficulty to modern proportionality determinations. The demonstrable gap between internationally accepted articulations of proportionality and its perceived application is not inevitable. The mere invocation of proportionality cannot become an effective extension of asymmetric combat power by artificially crippling combatant capabilities.

Rather than serving as a necessary basis for a positive articulation of lawful force as an exception to the norm, jus in bello proportionality delineates the outer boundaries of the commander's appropriate discretion. The difficulty in practice is that its parameters remain bounded by contextual challenges in every instance. Aharon Barak, of the Israeli Supreme Court, summarized this aspect of proportionality and its interrelationship with appropriate oversight as follows:

The court will ask itself only if a reasonable military commander could have made the decision which was made. If the answer is yes, the court will not exchange the military commander's security discretion with the security discretion of the court. Judicial review regarding military means to be taken is within the regular review of reasonableness.... [T]he question is not what I would decide in a given circumstance, but rather whether the decision that the military commander made is a decision that a reasonable military commander was permitted to make. In that subject, special weight is to be granted to the military opinion of the officials who bear responsibility for security.... Who decides about proportionality? Is it a military decision to be left to the reasonable application of the military, or a legal decision within the discretion of the judges? Our answer is that the proportionality of military means used in the fight against terror is a legal question left to the judges.... Proportionality is not a standard of precision; at times there are a number of ways to fulfill its conditions... a zone of proportionality is created; it is the borders of that zone that the court guards. (3) 

The precise parameters of this zone of proportionality are very much in dispute amidst the complexity of modern armed conflicts and the rise of a globalized media. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

Reframing the Proportionality Principle
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.