The Principle of Proportionality Under International Humanitarian Law and Operation Cast Lead

Abstract:     
This chapter critically examines the principle of proportionality under international humanitarian law and contextualizes its vulnerabilities by looking at Israel’s actions during Operation Cast Lead in the Gaza Strip between December 27, 2008, and January 18, 2009. It begins by providing a black letter law overview of the principle. Although widely accepted, the proportionality principle suffers from significant shortcomings that impact its usefulness as a predictable tool for distinguishing between the lawful and the unlawful, particularly in the context of asymmetrical warfare. These shortcomings exist at both a theoretical level, in the abstract, and at a practical level. To focus these discussions, the second half of this chapter looks at the largely negative international reaction to Israel’s actions during Operation Cast Lead. This reaction, which was, and has been, typically couched with a feigned certainty that belies and leaves unanswered the theoretical shortcomings of the principle of proportionality, suggests that, more often than not, proportionality acts as the ultimate exemplar of law used instrumentally, as a tool to further a particular politics and paradigm of power.

Number of Pages in PDF File: 38

Accepted Paper Series