Placing Things in Proportion

"Proportionality" has become a common term, widely used by human rights organizations, politicians, soldiers and laypersons. But its precise legal meaning is little understood. NGOs allege that a certain attack was disproportionate because civilians were killed; military officers retort that the action was proportional because the enemy fired first. From a legal standpoint, both claims are inaccurate, and based on irrelevant conceptions of proportionality. The goal of this paper is not to justify or discredit the use of proportionality, but rather to clarify its parameters, and identify the problems confronting attempts to apply it, especially in the context of military operations. The main claim in this paper is the following: Proportionality cannot be analyzed as a legal term disconnected from the institutions that apply it. Proportionality may be understood only in the context of its application by the courts. This paper was presented at the conference Sixty Years Since the Adoption of the Universal Declaration of Human Rights and Genocide Convention: Evaluating the Record, at Bar Ilan University on December 10, 2008.