How Consistent are Interpretations of the Principle of Proportionality in Situations of Asymmetric Conflicts? (PDF)

Master's Thesis from the year 2015 in the subject Politics - International Politics - Topic: Peace and Conflict Studies, Security, grade: 69 (Merit) - UK System, University College London (School of Public Policy), course: Human Rights, language: English, abstract: 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.