In this paper I present a holistic approach to identify how consistent interpretations of jus in bello proportionality regarding precision strikes in the context of counterinsurgency operations are by examining both consistency in substance and process. I hypothesize that there is high inconsistency in proportionality balancing, and will illustrate that it is both a theoretical and practical problem by using a mixed-methods design of empirical and theoretical analysis. Doing so, I will move beyond a positivist reading of the law to present my argument though a normative framework. I will argue that to fully comprehend this inconsistency one needs to understand the normative relationship between IHL and IHRL.
Structurally, I begin the thesis with an empirical analysis of case law and of the counterinsurgency policy of the US to demonstrate (in)consistency by rethinking it in four specific categories: scope, content, time, certainty. The purpose of this section is to evidence variance in interpretations of the proportionality variables and of the balancing act in ex-post (jurisprudence) and ex-ante (policy) assessments. Secondly, I will engage in a purposive analysis of the legal framework presenting theoretical approaches on the relationship of IHL with IHRL. This is to dismiss inconsistency in proportionality balancing as a ROL problem by showing that there is a higher (normative) purpose behind it. In the final chapter, I will apply the theoretical findings to the empirical discoveries to demonstrate that inconsistency is due to a “proportionality continuum”. This section will illustrate that inconsistency is not inherently bad as long as it serves the protective purpose intrinsic to both IHL and IHRL, which suggests changing policy rather than the law.
Table of Contents
1. Introduction
1.1 Structure and Argument
2. Literature Review
2.1 What to Balance?
2.2. How to Balance?
2.3. Precision Strikes
3. Methodology
3.1. Approaching the Study
3.2 Limitations
3.3. What I will add
Chapter I: Identifying Inconsistency – An Empirical Analysis
4.1. What to Balance?: A Matter of Distinction
4.2. What to Balance? Military Advantage
4.3. What to Balance?: A Matter of Precautions
4.4. How to Balance?: A Matter of Weighing
Chapter II: The Legal Framework – A Purposive Analysis
5.1 Two Sides of the Same Coin
5.2. Regulators of Norm Conflict
Chapter III: Proportionality Balancing – The Normative Way
6.1. Systemic Interpretation: The Purpose of Protection
6.2. The Crux With US COIN Policy
Research Objectives and Themes
The primary research objective of this paper is to investigate the consistency of interpretations regarding the principle of proportionality (PP) in the context of asymmetric conflicts, specifically focusing on drone strikes in counterinsurgency (COIN) operations. The study seeks to address whether there is a consistent legal and practical framework for proportionality balancing, or if the variance in interpretation points toward systemic challenges in international law.
- Empirical analysis of proportionality consistency in case law and US policy.
- Normative evaluation of the relationship between International Humanitarian Law (IHL) and International Human Rights Law (IHRL).
- Conceptualization of the "proportionality continuum" as a framework for understanding interpretation variance.
- Examination of the distinction between legal rule-of-law problems and broader policy dilemmas in modern combat operations.
Excerpt from the Book
1. Introduction
Much has been written on JBP in conventional AC. It is an IHL principle laid down in AP I, Art. 51/5(b) and Art. 57/2(iii), which necessitates the convergence of military interests with humanitarian values. It stipulates as disproportionate “[...] an(y) attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.” The principle aims to humanize warfare, while it also acknowledges that in cases of military necessity the killing of even civilians is warranted.
However, the changing nature of warfare and the rapidly evolving means and methods of combat since WW II have started to challenge its interpretation. Particularly, the emergence of NSA and the development of precision technology have produced a certain asymmetry that has become a feature of modern-day combat. It is in light of these realities that we need to rethink JBP and re-evaluate its fitness for keeping up with the spirits of our time.
Acknowledging this challenge I have begun this paper with the aim of addressing the following question: How consistent are interpretations of PP in situations of asymmetric conflicts? The focus of analysis is on the context of drone strikes in COIN operations. I want to highlight the following: First, I define consistency in terms of substance and process.
Summary of Chapters
1. Introduction: This chapter introduces the principle of proportionality, outlines the challenges posed by modern asymmetric warfare, and states the primary research question regarding interpretation consistency.
2. Literature Review: An overview of academic debates concerning the constituting elements of proportionality, the requirement for balancing, and implications for targeted killings via drone strikes.
3. Methodology: Describes the mixed-methods approach utilized in the study, combining theoretical and empirical analysis of court cases and US counterinsurgency policy.
Chapter I: Identifying Inconsistency – An Empirical Analysis: Examines case law and policy to identify variance in the balancing variables and processes used to determine proportionality.
Chapter II: The Legal Framework – A Purposive Analysis: Analyzes the theoretical relationship between International Humanitarian Law and International Human Rights Law to explain the normative purpose behind varying interpretations.
Chapter III: Proportionality Balancing – The Normative Way: Synthesizes empirical and theoretical findings to demonstrate that inconsistency is a result of a "proportionality continuum" and suggests a normative shift in interpretation.
Keywords
Arbitrary deprivation of life, asymmetric conflicts, balancing, civilians, collateral damage, combatants, counterinsurgency, distinction, international humanitarian law, international human rights law, jurisprudence, policy, precision strikes, proportionality, United States.
Frequently Asked Questions
What is the core focus of this research paper?
The paper examines how consistent interpretations of the principle of proportionality are, particularly within the context of drone strikes in asymmetric counterinsurgency operations.
What are the primary thematic fields covered?
The work covers International Humanitarian Law (IHL), International Human Rights Law (IHRL), the legal requirements for proportionality balancing, and the operational challenges posed by modern drone technology.
What is the central research question?
The research asks: "How consistent are interpretations of the principle of proportionality in situations of asymmetric conflicts?"
Which scientific methodology is applied?
A mixed-methods design is used, incorporating an empirical analysis of international and domestic jurisprudence alongside a purposive, theoretical evaluation of the legal framework.
What does the main body of the work address?
It addresses the substance and process of proportionality balancing, specifically comparing state policy (US COIN) with various court judgments to uncover systemic inconsistencies.
Which keywords best characterize this work?
Key concepts include proportionality, distinction, asymmetric conflicts, collateral damage, IHL/IHRL convergence, and counterinsurgency policy.
What is the "proportionality continuum" concept proposed by the author?
It is a framework suggesting that inconsistency in interpretation is not a result of legal relativism, but rather a reflection of the normative nature of law, where "hard cases" occupy the center of a spectrum.
How does the author evaluate US counterinsurgency policy?
The author argues that US policy often misuses IHL standards to justify lethal targeting, presenting a policy dilemma that prioritizes military effectiveness over the protective purpose common to IHL and IHRL.
What role does International Human Rights Law play in the author's analysis?
The author emphasizes that IHRL provides a necessary normative framework to interpret IHL, aiming to minimize civilian harm by treating "protection" as a common goal for both legal spheres.
Does the author conclude that inconsistency is inherently negative?
No, the author concludes that inconsistency is not inherently bad as long as it upholds the systemic coherence of international law and serves the intrinsic protective purpose of both IHL and IHRL.
- Arbeit zitieren
- Anna Scheithauer (Autor:in), 2015, How Consistent are Interpretations of the Principle of Proportionality in Situations of Asymmetric Conflicts?, München, GRIN Verlag, https://www.grin.com/document/350561
