The Proportionality Principle in Operation: Methodological Limitations of Empirical Research and the Need for Transparency

Content Provider	Scilit
Author	Fellmeth, Aaron
Copyright Year	2012
Description	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 deliberate methodology, suggest that the debilities of the proportionality principle may not be conceptual as much as a byproduct of unnecessary military secrecy. This article concludes that greater transparency in state compliance with the rule of discrimination and the principle of proportionality would, at least, facilitate an understanding of how the hitherto obscure principle operates in practice and, at best, could create systemic effects that would decrease the dangers to civilians in armed conflicts.
Related Links	https://www.cambridge.org/core/services/aop-cambridge-core/content/view/D1175641B81EA942F83144DDC6A5BBDF/S0021223711000057a.pdf/div-class-title-the-proportionality-principle-in-operation-methodological-limitations-of-empirical-research-and-the-need-for-transparency-div.pdf
Ending Page	150
Page Count	26
Starting Page	125
ISSN	00212237
e-ISSN	20479336
DOI	10.1017/s0021223711000057
Journal	Israel law review
Issue Number	1
Volume Number	45
Language	English
Publisher	Cambridge University Press (CUP)
Publisher Date	2012-03-01
Access Restriction	Open
Subject Keyword	Israel law review International Relations International Humanitarian Law Empirical Research
Content Type	Text
Resource Type	Article
Subject	Law