The principle of proportionality in International Humanitarian Law - In Light of the Just War Tradition and Proportionality in Constitutional Law
Author
Summary, in English
The principle of proportionality in International Humanitarian Law prohibits attacks where civilian casualties and damage to civilian property are expected to be excessive in relation to the military advantage anticipated. This rule is exposed to critique and whether it is even applied to practical situations can be questioned. The premise of the thesis is that the principle of proportionality in humanitarian law is a difficult provision to apply, and the purpose of the thesis is to investigate and highlight what this difficulty may consist in. Two different, but interrelated, questions can be posed with regard to the application of the principle of proportionality in humanitarian law; what are the values that should be assigned to each side of the scale and how should the proportionality assessment be conducted? In order to shed light on the principle of proportionality it is analyzed in light of two different perspectives: one is the Just War tradition and the other the structure of proportionality in constitutional law.
The Just War tradition, often considered the origin of the principle of proportionality in humanitarian law, provides a moral understanding of the principle in general and the concept of military advantage in particular. The other perspective, proportionality tests in constitutional law, provides a structure for how a proportionality assessment could be conducted. Applying the structured analysis of proportionality in constitutional law onto proportionality in humanitarian law reveals a need to detect and evaluate the underlying interests protected by the rule; namely the interest of the civilian population not to be exposed to the dangers of attack and the interest of belligerent parties’ gaining military superiority. This goes to the very core of International Humanitarian Law; the balance between military necessities and humanitarian considerations. It indicates that the principle of proportionality in Additional Protocol I is difficult to apply since one fundamental question in humanitarian law still needs to be resolved; how much suffering should the civilian population have to endure in the course of war?
The Just War tradition, often considered the origin of the principle of proportionality in humanitarian law, provides a moral understanding of the principle in general and the concept of military advantage in particular. The other perspective, proportionality tests in constitutional law, provides a structure for how a proportionality assessment could be conducted. Applying the structured analysis of proportionality in constitutional law onto proportionality in humanitarian law reveals a need to detect and evaluate the underlying interests protected by the rule; namely the interest of the civilian population not to be exposed to the dangers of attack and the interest of belligerent parties’ gaining military superiority. This goes to the very core of International Humanitarian Law; the balance between military necessities and humanitarian considerations. It indicates that the principle of proportionality in Additional Protocol I is difficult to apply since one fundamental question in humanitarian law still needs to be resolved; how much suffering should the civilian population have to endure in the course of war?
Department/s
Publishing year
2013
Language
English
Document type
Student publication for professional degree (Master's level)
Topic
- Law and Political Science
Keywords
- Public International Law
- International Humanitarian Law
- Principle of proportionality
- Just War Theory
Supervisor
- Ulf Linderfalk (Professor)