Puzzles of proportion and the "reasonable military commander" : reflections on the law, ethics, and geopolitics of proportionality
Robert D. Sloane
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Harvard national security journal, Vol. 6, issue 2, 2015, p. 299-343
This article offers modest reflections on jus in bello proportionality. It suggests that the law of armed conflict (LOAC) build on the only consensus legal standard that exists: that of the good-faith reasonable military commander. The difficulty — here, as with any reasonableness standard — is to identify factors that realistically can, and legally should, guide adherence to it and to consider the objective and subjective dimensions of judgments under the standard. Part II scrutinizes the content and status of Additional Protocol I’s (API) canonical definition of proportionality. It analyzes its text and context to bring out the extent to which API compels more, and more diverse, subjectivities and indeterminacies than commonly recognized. This is not a problem to be solved; it is an inexorable feature of the principle. Part III therefore critiques perhaps the most popular effort to invest proportionality with more precise substantive content: the idea that it requires elites to conduct hostilities "as if" their own noncombatants were the ones at risk. Part IV considers the prospects for promoting proportionality within the spectrum of lawfulness authorized by the current standard. Those prospects depend on dynamics exogenous to the letter of positive international law but not, for that reason, beyond the influence of international lawyers.
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