Abstract
Perhaps no other word in the international humanitarian law lexicon evokes more interest and emotion than proportionality. How States implement the rule of proportionality is perhaps the most hotly debated aspect of international humanitarian law. The indeterminate nature of the rule allows for its meaning to conform to whatever its reader wants it to mean. This is a consequence of the variables related to key provisions of the rule: How do we assess military advantage? What makes an anticipated military advantage “concrete and direct”? And most problematic of all, what is the meaning of the term “excessive”? All of these concerns raise troubling questions. Can the proportionality rule truly matter without consensus on what amounts to non-compliance? Does the rule’s indeterminacy undermine its value as a legal tool? This essay will consider several aspects of the proportionality rule: first, why it still reflects a critically important principle of military operations despite its indeterminacy; second, its limited operational efficacy as a civilian risk mitigation measure; and third, why shifting the focus to the principle of constant care and the subordinate rule of precautions in the attack will advance the humanitarian interests of the law.
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