Reflections on Proportionality, Military Necessity, and the Clausewitzian War

Israel Law Review, Vol. 45(2) 323 (2012), Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem

Posted: 29 May 2012 Last revised: 15 Apr 2015

See all articles by Rotem Giladi

Rotem Giladi

University of Helsinki, Erik Castrén Institute of International Law and Human Rights, Faculty of Law

Date Written: June 1, 2012

Abstract

This article explores the significance of the reference, in proportionality analyses, to proper purpose and legitimate ends, given the traditional aversion of international humanitarian law (IHL) to questions of (political) legitimacy. It demonstrates the centrality of that aversion in doctrinal assertions concerning the goals, characteristics and operational strategy of IHL yet argues that, at its historical and conceptual foundations, the law draws on a construction of war that presupposes legitimacy of the political type. That construction remains embedded, though implicit, in contemporary proportionality analyses.

Thus, the instrumental understanding of war by Carl von Clausewitz poses several challenges to entrenched contemporary doctrinal claims about the law, how it operates and the effects it produces. This provides an impetus for critical reassessment of the aversion to politics and the interaction between the humanitarian, military and political spheres in the operation of IHL norms. Such critique helps to identify novel strategies of humanitarian protection in war outside the confines demarcated by orthodox doctrine.

Keywords: international humanitarian law, military necessity, proportionality, history of the law of war, Clausewitz

Suggested Citation

Giladi, Rotem, Reflections on Proportionality, Military Necessity, and the Clausewitzian War (June 1, 2012). Israel Law Review, Vol. 45(2) 323 (2012), Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem , Available at SSRN: https://ssrn.com/abstract=2069777

Rotem Giladi (Contact Author)

University of Helsinki, Erik Castrén Institute of International Law and Human Rights, Faculty of Law ( email )

Finland

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