The Concept of Proportionality in the Context of International Humanitarian Law and Its Customary Basis
Description
This study decisively explores the principle of proportionality as an essential element of International Humanitarian Law (IHL), tracing its development from ancient moral codes to its formal codification in modern treaties and customary law. It effectively examines the critical balance between military necessity and humanitarian protection, illustrating how proportionality serves as both a legal standard and a moral guideline in armed conflict. By analyzing its historical trajectory from early civilizations and religious doctrines to medieval just war theory and contemporary international jurisprudence, this research asserts the enduring significance of proportionality. It underscores the principle's vital role in directing military decision-making to prevent excessive harm to civilians, its affirmation by international courts, and its integration into state practices and military manuals. The paper confidently advocates for a clearer and more explicit incorporation of proportionality in IHL instruments, calling for its prioritization by prominent international bodies such as the ICRC. Ultimately, this study positions proportionality not merely as a practical constraint on the conduct of hostilities, but as a profound embodiment of humanity within the laws of war.
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Steps to reproduce
To reproduce the analysis in this study, researchers should: Review the same primary sources of International Humanitarian Law, including the Geneva Conventions, Additional Protocol I (1977), and relevant customary IHL rules. Examine the historical and philosophical sources referenced in the study, tracing the evolution of the proportionality principle from ancient legal traditions to modern codification. Analyze relevant case law from international courts and tribunals, such as the International Court of Justice and the International Criminal Tribunal for the former Yugoslavia, as cited in the paper. Apply the same comparative legal analysis between treaty provisions, customary norms, and judicial interpretations, focusing on the balance between military necessity and humanitarian protection. Use the cited literature and scholarly commentary to cross-check interpretations and legal reasoning.
Institutions
- University of Kufa