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Counterinsurgency LawNew Directions in Asymmetric Warfare$
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William Banks

Print publication date: 2013

Print ISBN-13: 9780199941445

Published to Oxford Scholarship Online: April 2015

DOI: 10.1093/acprof:osobl/9780199941445.001.0001

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Proportionality in Counterinsurgency

Proportionality in Counterinsurgency

Reconciling Human Rights and Humanitarian Law

(p.24) 2 Proportionality in Counterinsurgency
Counterinsurgency Law

Evan J. Criddle

Oxford University Press

This chapter examines the potential for convergence of human rights law (HRL) and international humanitarian law (IHL) in counterinsurgency (COIN), with particular emphasis on the traditional IHL principle of proportionality. Drawing on a relational theory of lex specialis in place of operational theory, it considers when IHL or HRL doctrines should apply to set the parameters for what is proportionate in COIN. The chapter begins with an overview of the fissures along the “fault line” where IHL and HRL overlap with potentially destabilizing consequences for international law as a normative system. It then describes current approaches for reconciling IHL and HRL before turning to a discussion of the relational theory of the use of force. It also explores the fiduciary character of human rights and of IHL, along with the efforts by international tribunals and publicists to resolve tensions between IHL proportionality and HRL proportionality in COIN. To illustrate the relational theory's application to contemporary COIN operations, the chapter presents a case study from the Israeli-Palestinian conflict: the controversial decision of the Supreme Court of Israel in the Targeted Killings case.

Keywords:   human rights law, international humanitarian law, counterinsurgency, proportionality, relational theory, lex specialis, operational theory, use of force, human rights, Israel

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