A Development of Modest Proportions: The Application of the Principle of Proportionality in the Targeted Killings Case

Cohen, Amichai; Shany, Yuval

doi:10.1093/jicj/mqm016

Cited by 58 publications

(10 citation statements)

References 0 publications

Supporting

Mentioning

Contrasting

Order By: Relevance

“…As commentators have noted, this requirement was not based on the existing laws of war, either with regard to civilians or combatants (Cohen & Shany 2007). Rather, it was introduced under a domestic constitutional principle of proportionality.…”

Section: From Shoot-to-kill To Kill-when-necessary: Rereading "Militamentioning

confidence: 99%

The Dispensable Lives of Soldiers

Blum¹

2017

Oxford Scholarship Online

View full text Add to dashboard Cite

Why are all soldiers fair game in war? This paper challenges the status-based distinction of the laws of war, calling instead for revised targeting doctrines that would place further limits on the killing of enemy soldiers. I argue that the changing nature of wars and militaries casts doubts on the necessity of killing all enemy combatants indiscriminately.I offer two amendments: The fi rst is a reinterpretation of the principle of distinction, suggesting that the status-based classifi cation be complemented by a test of threat. Consequently, combatants who pose no real threat would be spared from direct attack. The second is a reinterpretation of the principle of military necessity, introducing a least-harmful-means test, under which an alternative of capture or disabling of the enemy would be preferred to killing whenever feasible.I discuss the practical and normative implications of adopting these amendments, suggesting possible legal strategies of bringing them about.

show abstract

Section: From Shoot-to-kill To Kill-when-necessary: Rereading "Militamentioning

confidence: 99%

The Dispensable Lives of Soldiers

Blum¹

2017

Oxford Scholarship Online

View full text Add to dashboard Cite

show abstract

“…Proportionality analysis has been shown to vary across countries (Cohen‐Eliya and Porat ; Petersen ; Stone Sweet and Mathews ) and legal domains (e.g., domestic law vs. IHL, see: Cohen and Shany ; May ). This doctrinal variation pertains mainly to the set of decision stages the analysis takes into account.…”

Section: A Behavioural Analysis Of Proportionality Judgmentsmentioning

confidence: 99%

“…This research assesses the effects of different doctrinal versions on the judgment outcome, with regard to its receptivity to normatively factual considerations and susceptibility to the adjudicator's legally irrelevant preferences. To this end, it capitalizes on the Israeli Court of Justice's application of a comprehensive version of the proportionality doctrine in the cases of targeted killings (Cohen and Shany ). The following section reviews this policy and the application of proportionality in cases of targeted killings.…”

Section: A Behavioural Analysis Of Proportionality Judgmentsmentioning

confidence: 99%

“…Although Barak contended that, under IHL, the third, “strict‐sense” PA stage appears to be the most relevant to assessing the lawfulness of targeting, he did not rule out the relevance of other proportionality decision stages. Barak specified that a military action must conform to all three proportionality requirements (suitability, necessity and balancing), effectively harmonizing the application of PA in both IHL and Israeli domestic Law (Cohen and Shany )…”

Section: Proportionality and Targeted Killings Of Terrorist Operativesmentioning

confidence: 99%

“…We assess the validity of these effects and distinguish among two potential mechanisms that govern them. Third, some doctrinal variation in proportionality analysis has been identified across countries (Cohen‐Eliya and Porat ; Petersen ; Stone Sweet and Mathews ) and across legal domains (e.g., domestic law vs. international humanitarian law (IHL), see: Cohen and Shany ; May ). The questions that are addressed in this regard are (1) whether some doctrine versions of the judgment‐formation process elicit greater receptivity to factual considerations than others; and (2) whether such versions provide a better guard against normatively unwarranted effects of legally irrelevant preferences.…”

mentioning

confidence: 99%

See 2 more Smart Citations

Facts, Preferences, and Doctrine: An Empirical Analysis of Proportionality Judgment

Sulitzeanu‐Kenan¹,

Kremnitzer²,

Alon³

2016

Law Soc Rev

View full text Add to dashboard Cite

Legal proportionality is one of the most important principles for adjudicating among conflicting values. However, rather little is known about the factors that play a role in the formation of proportionality judgments. This research presents the first empirical analysis in this regard, relying on a sample of 331 legal experts (lawyers and legal academics). The policy domain addressed by the experiment is the antiterrorist military practice of targeted killings, which has been the subject of a legal debate. Our experimental findings suggest that proportionality judgments are receptive to normatively relevant facts. We also find strong correlational evidence for the effect of ideological preferences on such judgments. These results are consistent for two proportionality doctrines. We suggest that proportionality judgment is anchored jointly in the experts' policy preferences and the facts of the case. We outline the implications of the findings for the psychological and legal literature.

show abstract

Surveillance, Targeted Killing and the Fight Against Terrorism: A Fair-Played Game?

Λεκεα

2017

Surveillance in Action

View full text Add to dashboard Cite

A Development of Modest Proportions: The Application of the Principle of Proportionality in the Targeted Killings Case

Cited by 58 publications

References 0 publications

The Dispensable Lives of Soldiers

The Dispensable Lives of Soldiers

Facts, Preferences, and Doctrine: An Empirical Analysis of Proportionality Judgment

Surveillance, Targeted Killing and the Fight Against Terrorism: A Fair-Played Game?

Contact Info

Product

Resources

About