Proportionality is a general principle in law which covers several special (although related) concepts. The concept of proportionality is used as a criterion of fairness and justice in statutory interpretation processes, especially in constitutional law, as a logical method intended to assist in discerning the correct balance between the restriction imposed by a corrective measure and the severity of the nature of the prohibited act. Within municipal (domestic) law it is used to convey the idea that the punishment of an offender should fit the crime. Under international humanitarian law governing the legal use of force in an armed conflict, proportionality and distinction are important factors in assessing military necessity. As such it has …show more content…
Proportionality plays a prominent role in limiting the power of taking counter measures in response to the internationally wrongful acts. The requirement of proportionality, which is universally affirmed in the international practice and literature and also provides an important theoretical function. In a legal system in which the response to the wrongful conduct is exercised on a decentralised basis, proportionality secures a certain predictability of response and predetermines, roughly the social sanction against the wrongdoer. The concept of proportionality, while protecting the subjective interest of the wrongdoer against over-reaction, also expresses the need of the international legal order to establish a legal process regulating the nature and intensity of the response to the wrongful conduct.
There are certain conventions in the International Law that enunciate the concept of proportionality. Some of them are as follows: The principle of proportionality (article 51(5)(b) – Protection of civilian Population) is one of the basic principle. It states that even if there is a clear military target it is not possible to attack it if the harm to civilians or civilian property is excessive to the expected military
...it balances constitutional guarantees and fairness with the needs for proper order and discipline. She then said that those subject to military law did not have the same constitutional guarantees given under civilian law where justice is the objective. Critics observed that the military system of justice is broken down and that it is ironic and tragic that those who are sworn to protect the Constitution were often deprived of basic Constitutional rights. She also felt that court-martials are out of control. There are approximately 10,000 or more of these each year. This situation, the 98% conviction rate, the reality of untrained and understaffed defense attorneys and blatant command influence altogether were serious problems confronted by military personnel who confront the military rule of law (O’Meara).#
Drumbl, M. B. (2007). International Decisions. American Society of International Law , 101 (4), 841-848.
The governance of our present day public and social order co-exist within the present day individual. Attempts to recognize the essentiality of equality in hopes of achieving an imaginable notion of structure and order, has led evidence based practitioners such as Herbert Packer to approach crime and the criminal justice system through due process and crime control. A system where packer believed in which ones rights are not to be infringed defrauded or abused was to be considered to be the ideal for procedural fairness. “I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it.” Thomas Jefferson pg 9 cjt To convict an individual because proper consideration was not taken will stir up social unrest rather then it’s initial intent, when he or she who has committed the crime is not punished for their doings can cause for a repetition and even collaboration with other’s for a similar or greater crime.
Vinjamuri, Leslie. “Deterrence, Democracy, and the Pursuit of International Justice.” In Ethics and International Affairs 24:2 (2010): 191-211.
This paper considers the desert arguments raised to support retributivism, or retribution. Retributivism is "the application of the Principle of Desert to the special case of criminal punishment." Russ Shafer-Landau and James Rachels offer very different perspectives on moral desert which ground their differing views on the appropriate response to wrongdoing. In "The Failure of Retributivism," Shafer-Landau contends that retributivism fails to function as a comprehensive theoretical foundation for the legal use of punishment. In contrast, in his article "Punishment and Desert," Rachels uses the four principles of guilt, equal treatment, proportionality and excuses to illustrate the superiority of retribution as the basis for the justice system over two alternatives: deterrence and rehabilitation. Their philosophical treatment of the term leads to divergence on the justification of legal punishment. Ultimately, Rachels offers a more compelling view of desert than Shafer-Landau and, subsequently, better justifies his endorsement of a retributive justice system.
Fairness Doctrine - Wikipedia, the free encyclopedia. (2011, January 15). Wikipedia, the free encyclopedia. Retrieved February 4, 2011, from http://en.wikipedia.org/wiki/Fairness_Doctrine
Humanitarian law requires that parties to an armed conflict must differentiate between the civilian population and combatants. Civilians and civilian property are required to be constantly protected from harm. Attacks may be directed solely against military
Fairness in International Criminal Trials is an essential reading for students of international criminal law as well as practitioners before international criminal tribunals. With an excellent balance between general analysis and a more technical study, this book speaks to the specialists of the field, and to all those who seek to understand how international criminal justice works, what the limits of this system are, and how the judges of international criminal tribunals can guarantee the prosecution of heinous crimes maintaining
...minga, M. T. (2013). International Law. In J. Hage, & B. Akkermans, Introduction to Law (pp. 349-360). Maastricht: Maastricht University Faculty of Law.
Introduction The current paper identifies the particular issues of substantive and procedural law in cases of use of force against states. Submitted for assessment are all the legal issues related to the United Nations (UN) and the International Court of Justice (ICJ), with reference to four specific cases: the United Kingdom of Great Britain and Northern Ireland vs. Albania, Nicaragua vs. the United States of America, the Democratic Republic of Congo vs. Uganda and lastly, the Republic of Guyana vs. the Republic of Suriname. The essay is divided into six sections, each of them related to a different legal topic. The first two sections will briefly discuss the characteristics of procedural and substantive law. The following section will outline the differences existing between the two kinds of law mentioned previously.
Set of conditions under which war is morally justified (jus ad bellum); and also ethical rules of war (jus in bello). As conditions of fair war the following was offered: its reasons have to be fair (e.g., self-defense at attack or at threat of inevitable attack), the authorities resorting to a war, precisely know that all peace alternatives and that there are reasonable hopes for success of war are settled. Two major conditions for conducting fair war are that use of force has to be "proportional" to that fair reason for which war (in the sense that the evil generated by war is begun, shouldn't exceed the benefit represented by the fair reason) and that it is necessary to carry out distinction between military and innocent (citizens not participating in operations) which shouldn't be killed. The concept of fair war was developed in early Christian church; in the 4th century over it St. Augustine reflected; in the 17th century it was divided by Gugo Grotsy. In the subsequent time interest to this concept decreased. It again increased in the 20th eyelid in connection with development of the nuclear weapon (which use, according to some researchers, could violate proportionality and differentiation conditions), and also in connection with emergence of "humanitarian interventions", directed on putting an end to genocide and other crimes committed in borders of the certain state.
1.The strict supremacy of statute over judicial decisions and a tradition of literalism in statutory interpretation, 2. Where no legislation exists, the courts are bound by the doctrine of precedent in accordance with a strict hierarchy of judicial authority, 3. In the absence of a relevant precedent, the judges will be guided by legal principle and reasoning by analogy, and 4. There is clear way of distinguishing the ratio of a case…
International legal personality may entitle a subject of international law in order to have the power to make international agreements, enjoy various privileges and immunities, bring legal claims to enforce international legal rights and be under certain international legal obligations. ‘Subjects’ of international law are defined in Reparation for Injuries Suffered in the Service of the United Nations [1949] ICJ Rep. 174, where the ICJ stated that “subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community..” Under the long-established rule, subjects of international law are considered to be sovereign states, however, numerous International Governmental Organisations possess international legal personality for specific purposes, also individuals have been given delimited forms of of international legal personality.
Many controversies have arisen nowadays as to whether international law is “natural law”, international law now faces considerable criticism as to its effectiveness as law and doubts as to its actual existence, and its power to bind countries .
Rawl’s principles were found justified by visualizing real people forming a system of laws including the ramifications of a “justified complaint”. A justified complaint is an accusation by a member of society against another member of society. To have a system of justice the society must have means of answering the beckoning of the populace. If a society does not attend to the offense of its own people then it is not a true society. Society is based on the principle of a consensus unanimously choosing their governing rules and laws. However the limitations of a “justified complaint” are unclear depending on what the consensus agrees to. Though the one rule that must apply is the fact that a complaint must be made by a law abider to be a “justified complaint”.