The Proportionality Principle in Operation: Methodological Limitations of Empirical Research and the Need for Transparency
Aaron Xavier Fellmeth
Arizona State University (ASU) - Sandra Day O'Connor College of Law
February 28, 2012
Israel Law Review, Vol. 45, 2012
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 carefully designed methodology, suggest that the debilities of the proportionality principle may not be conceptual so much as a byproduct of military secrecy. This article concludes that greater transparency in state compliance with the rule of discrimination and the principle of proportionality could create systemic effects that would significantly decrease the dangers to civilians in armed conflicts. The article suggests some ways that a transparency regime could be developed and proposes some alterations to the ius in bello to remove certain pathological disincentives to transparency.
Keywords: law of war, jus in bello, ius in bello, international law, armed conflict, international law of armed conflict, proportionality, targeting, transparency, empiricism, empirical research
Date posted: February 28, 2012