Reframing the Proportionality Principle

Abstract

Proportionality functions as one of the most important legal constraints applicable to the conduct of hostilities. In that context, this short essay discusses the commonly encountered misapplications of Cicero's classic sentiment that "salus populwe supremus est lex ... silent enim leges inter armes." Rather than serving as a necessary basis for a positive articulation of lawful force as an exception to the norm, jus in bello proportionality delineates the outer boundaries of the commander's appropriate discretion. The mere invocation of jus in hello proportionality cannot become an effective extension of asymmetric combat power by artificially crippling combatant capabilities. This essay ends by framing the modern content of the proportionality principle that remains fully applicable as a matter of law even during in extremis situations.