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

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