Proportionality in Perspective: Historical Light on the Law of Armed Conflict

San Diego International Law Journal, Vol. 16, No. 2, pp. 263-340, 2015

George Mason Legal Studies Research Paper No. LS 15-01

79 Pages Posted: 30 Jun 2015 Last revised: 25 Aug 2015

See all articles by Jeremy Rabkin

Jeremy Rabkin

George Mason University School of Law

Date Written: June 29, 2015

Abstract

“Proportionality” – the doctrine that military attacks must not cause “excessive” harm to civilian life and property – was not mentioned in any international convention on the law of armed conflict until Additional Protocol I (1977). Commentaries by the Red Cross depict AP I’s rule as a return to traditional understandings, implicitly repudiating their abandonment by the western Allies in the Second World War. The historical record is quite different. Leading commentators before the Second World War endorsed food blockades and massive destruction of infrastructure. American military commentators, down to the 1970s, assessed World War II practice as broadly consistent with international law. At the time it was negotiated, AP-I was not seen as a radical departure from Twentieth Century practice. It should not be interpreted to impose disabling constraints on contemporary military action. Different military challenges justify different levels of harm to civilians. The context of military action must matter as much as any abstract formula like “proportionality.”

Keywords: Additional Protocol I, AP-I, armed conflict, civilians, Geneva Conference, Hague Regulations, humanitarian protection, international law, Lieber Code, military necessity, proportionality, Red Cross, World War II

JEL Classification: K33, N40

Suggested Citation

Rabkin, Jeremy, Proportionality in Perspective: Historical Light on the Law of Armed Conflict (June 29, 2015). San Diego International Law Journal, Vol. 16, No. 2, pp. 263-340, 2015, George Mason Legal Studies Research Paper No. LS 15-01, Available at SSRN: https://ssrn.com/abstract=2624777

Jeremy Rabkin (Contact Author)

George Mason University School of Law ( email )

3301 Fairfax Dr
Arlington, VA 22201
United States

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