To see the other types of publications on this topic, follow the link: The principle of distinction and the principle proportionality.
Journal articles on the topic 'The principle of distinction and the principle proportionality'
Create a spot-on reference in APA, MLA, Chicago, Harvard, and other styles
Consult the top 50 journal articles for your research on the topic 'The principle of distinction and the principle proportionality.'
Next to every source in the list of references, there is an 'Add to bibliography' button. Press on it, and we will generate automatically the bibliographic reference to the chosen work in the citation style you need: APA, MLA, Harvard, Chicago, Vancouver, etc.
You can also download the full text of the academic publication as pdf and read online its abstract whenever available in the metadata.
Browse journal articles on a wide variety of disciplines and organise your bibliography correctly.
1
Dill, Janina. "Distinction, Necessity, and Proportionality: Afghan Civilians’ Attitudes toward Wartime Harm." Ethics & International Affairs 33, no. 3 (2019): 315–42. http://dx.doi.org/10.1017/s0892679419000376.
Full textAbstract:
AbstractHow do civilians react to being harmed in war? Existing studies argue that civilian casualties are strategically costly because civilian populations punish a belligerent who kills civilians and support the latter's opponent. Relying on eighty-seven semi-structured interviews with victims of coalition attacks in Afghanistan, this article shows that moral principles inform civilians’ attitudes toward their own harming. Their attitudes may therefore vary with the perceived circumstances of an attack. Civilians’ perception of harm as unintended and necessary, in accordance with the moral principles of distinction and necessity, was associated with narratives that cast an attack as relatively more legitimate and with a partial or full release of the coalition from blame. The principle of proportionality, which requires that civilian casualties are caused in pursuit of a legitimate war aim, informed their abstract attitudes toward civilian casualties in Afghanistan. Two rules of international law, which accord with the moral principles of distinction and necessity, were reflected in the civilians’ attitudes. The legal rule of proportionality, which diverges from the namesake moral principle, failed to resonate with the civilians. The article explores whether compliance with the legal rules of distinction and necessity can contribute to mitigating the strategic costs of civilian casualties.
2
Vezmar Barlek, Inga. "Primjena načela razmjernosti u praksi Suda Europske unije." Zbornik Pravnog fakulteta Sveučilišta u Rijeci 38, no. 1 (2017): 673–85. http://dx.doi.org/10.30925/zpfsr.38.1.25.
Full textAbstract:
The article emphasizes the principle of proportionality as a general principle of law. Analysis of some CJEU case law is introduced, regarding interpretative role of the principle of proportionality and its legal basis for annulment of individual and general acts. The distinction between the infringement of margin of appreciation and the principle of proportionality is given. The specificity of the Croatian administrative dispute law regarding the control of legality of the acts issued within margin of appreciation is emphasized. The principle of proportionality role as a legal basis for annulment of general acts in Croatian administrative dispute law is opened for discussion.
3
Sagan, Scott D., and Allen S. Weiner. "The Rule of Law and the Role of Strategy in U.S. Nuclear Doctrine." International Security 45, no. 4 (2021): 126–66. http://dx.doi.org/10.1162/isec_a_00407.
Full textAbstract:
Abstract In 2013, the U.S. government announced that its nuclear war plans would be “consistent with the fundamental principles of the Law of Armed Conflict” and would “apply the principles of distinction and proportionality and seek to minimize collateral damage to civilian populations and civilian objects.” If properly applied, these legal principles can have a profound impact on U.S. nuclear doctrine. The prohibition against targeting civilians means that “countervalue” targeting and “minimum deterrence” strategies are illegal. The principle of distinction and the impermissibility of reprisal against civilians make it illegal for the United States, contrary to what is implied in the 2018 Nuclear Posture Review, to intentionally target civilians even in reprisal for a strike against U.S. or allied civilians. The principle of proportionality permits some, but not all, potential U.S. counterforce nuclear attacks against military targets. The precautionary principle means that the United States must use conventional weapons or the lowest-yield nuclear weapons that would be effective against legitimate military targets. The law of armed conflict also restricts targeting of an enemy's leadership to officials in the military chain of command or directly participating in hostilities, meaning that broad targeting to destroy an enemy's entire political leadership is unlawful.
4
Nolte, Georg. "Thin or Thick? The Principle of Proportionality and International Humanitarian Law." Law & Ethics of Human Rights 4, no. 2 (September 30, 2010): 245–55. http://dx.doi.org/10.2202/1938-2545.1050.
Full textAbstract:
Proportionality, as a concept, does not contain any inherent standards, but rather refers to a proper balance between all relevant factors. It is nevertheless necessary to make analytical distinctions that help identify the premises of its application within different contexts. This is particularly true for an area like international humanitarian law in which a proper focusing of the principle of proportionality is crucial. This article suggests that the distinction between a thin and a thick approach is a helpful analytical tool depending on the number and the character of factors to be taken into account in the application of the principle of proportionality. The judgment of the Supreme Court of Israel on the permissibility of targeted killings is used to exemplify the drawbacks and advantages of both approaches.
5
Clarke, Ben. "Proportionality in Armed Conflicts: A Principle in Need of Clarification?" Journal of International Humanitarian Legal Studies 3, no. 1 (2012): 73–123. http://dx.doi.org/10.1163/18781527-00301003.
Full textAbstract:
In their quest to find ways to reduce civilian casualties during armed conflict, States often emphasise the importance of compliance with fundamental rules of international humanitarian law that apply during the conduct of hostilities. Chief among them are the rules of distinction, proportionality and precaution. This contribution focuses on the proportionality principle. It examines whether there is a need for clarification or development of this rule. After highlighting reasons why clarification of the law on proportionality is necessary, the author proposes a guidance document on proportionality decision-making in armed conflict. To lay the foundation for such a document, the author identifies a range of issues that could be addressed in the document.
6
Ponti, Christian. "The Crime of Indiscriminate Attack and Unlawful Conventional Weapons: The Legacy of the icty Jurisprudence." Journal of International Humanitarian Legal Studies 6, no. 1 (May 4, 2015): 118–46. http://dx.doi.org/10.1163/18781527-00601007.
Full textAbstract:
The prohibition of indiscriminate attacks, which encompasses either ‘indiscriminate attacks’ stricto sensu and the so-called ‘disproportionate attacks’, is at the heart of the law governing the conduct of hostilities, as it aims to implement two cardinal principles of international humanitarian law (ihl), distinction and proportionality. This contribution examines the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (icty) establishing the individual criminal responsibility for indiscriminate attack. The author considers the possible rationale to illustrate why the icty has never adjudicated neither indiscriminate attacks nor disproportionate attacks per se, as separate, autonomous offences under customary international law. It is submitted that a possible reason to explain the prudency of the icty judges when dealing with the crime of indiscriminate attack is that from an international criminal law perspective it is more than a challenge to apply these ihl principles of distinction and proportionality. The author contends that the icty jurisprudence that practically examined the principle of prohibiting indiscriminate attacks by means of unlawful conventional weapons confirm such difficulties. In particular, because the icty failed to fully clarify to what extent an attack by means of indiscriminate and/or inaccurate weapons violating fundamental principles of the conduct of hostilities, such as distinction and proportionality, may amount to the crime of indiscriminate attack.
7
Gisel, Laurent. "Can the incidental killing of military doctors never be excessive?" International Review of the Red Cross 95, no. 889 (March 2013): 215–30. http://dx.doi.org/10.1017/s1816383114000174.
Full textAbstract:
AbstractMilitary medical personnel and objects, as well as wounded and sick combatants, are protected against direct attack under the principle of distinction in international humanitarian law. However, some authors argue that they are not covered by the principles of proportionality and precautions. This opinion note explains that military medical objects constitute civilian objects under the rules governing the conduct of hostilities. It also demonstrates that, in view of the object and purpose of the First Additional Protocol to the Geneva Conventions, expected incidental casualties of military medical personnel and wounded and sick combatants must be included among the relevant incidental casualties under the principles of proportionality and precautions. This stems in particular from the interpretation of the obligation ‘to respect and protect’ as the overarching obligation of the special protection afforded to all medical personnel and wounded and sick. Support for this conclusion can be found in a number of military manuals and in the Additional Protocol's preparatory work and Commentaries. This conclusion also reflects customary law.
8
Geiß, Robin, and Henning Lahmann. "Cyber Warfare: Applying the Principle of Distinction in an Interconnected Space." Israel Law Review 45, no. 3 (October 30, 2012): 381–99. http://dx.doi.org/10.1017/s0021223712000179.
Full textAbstract:
While the rules of the jus in bello are generally operative in cyberspace, it appears to be problematic to apply the fundamental principle of distinction because of the systemic interconnection of military and civilian infrastructure in the cyber realm. In this regard, the application of the accepted legal definition of military objectives will make various components of the civilian cyber infrastructure a legitimate military objective. In order to avoid serious repercussions for the civilian population that might follow from this inherent interconnectedness, different concepts are analysed that could provide potential solutions for a clearer separation of legitimate military targets and protected civilian installations and networks. The approaches discussed range from the exemption of central cyber infrastructure components that serve important civilian functions, to the creation of ‘digital safe havens’ and possible precautionary obligations regarding the segregation of military and civilian networks. As a solution, the authors propose a dynamic interpretation of the wording ‘damage to civilian objects’ within the principle of proportionality of Article 51(5)(b) of Additional Protocol I, an interpretation that would comprise the degradation of the functionality of systems that serve important civilian functions.
9
Lewis, Jeffrey G., and Scott D. Sagan. "The Nuclear Necessity Principle: Making U.S. Targeting Policy Conform with Ethics & the Laws of War." Daedalus 145, no. 4 (September 2016): 62–74. http://dx.doi.org/10.1162/daed_a_00412.
Full textAbstract:
In 2013, Obama administration spokesmen stated that all U.S. nuclear war plans “apply the principles of distinction and proportionality and seek to minimize collateral damage to civilian populations and civilian objects.” We analyze U.S. nuclear policy documents and argue that major changes must be made if U.S. nuclear war plans are to conform to these principles of just war doctrine and the law of armed conflict. We propose that the U.S. president announce a commitment to a “principle of necessity,” committing the United States not to use nuclear weapons against any military target that can be destroyed with reasonable probability of success by a conventional weapon. Such a doctrinal change would reduce collateral damage from any nuclear strike or retaliation by the United States and would, we argue, make our deterrent threats more credible and thus more effective.
10
Maskun, Maskun, and Rafika Nurul Hamdani Ramli. "A New Treaty for Fully Autonomous Weapons: A Need or a Want?" Hasanuddin Law Review 4, no. 1 (April 9, 2018): 54. http://dx.doi.org/10.20956/halrev.v4i1.1300.
Full textAbstract:
Autonomous Weapon System (AWS) is still discussed and is considered to the principle of International Humanitarian Law (IHL) particular the principle of distinction and proportionality. In line with moral and ethical issues, some experts and global citizens agree that AWS will likely to distract moral and ethical on a battlefield and are never able to replace human’s feeling. Human beings are responsible over AWS because there is no such a fully autonomous weapons exist. It is always a human commander behind the actions. To bridge the situation on discussion of AWS, a new treaty should be created in order to anticipate further violation.
11
Koppe, Erik V. "The Principle of Ambituity and the Prohibition against Excessive Collateral Damage to the Environment during Armed Conflict." Nordic Journal of International Law 82, no. 1 (2013): 53–82. http://dx.doi.org/10.1163/15718107-08201004.
Full textAbstract:
This article aims to clarify the legal basis of the protection of the environment during armed conflict in general, and of the prohibition against excessive collateral damage to the environment in particular. It is submitted that the legal basis for the conventional and customary rules which protect the (intrinsic value of the) environment during armed conflict cannot be deduced from the four fundamental principles of the law of armed conflict: the principles of military necessity, distinction, proportionality and humanity. Rather, the specific obligations relating to environmental protection in times of armed conflict flow from the fundamental principle of ambituity. Similar to the principle of humanity, the principle of ambituity, which qualifies as a general principle of law in the sense of Article 38(1)(c) ICJ Statute, provides for an absolute limitation to the necessities of war. As such the principle of ambituity may be used to interpret existing conventional or customary rules of international law during armed conflict, to supplement, or under exceptional circumstances to modify or set aside these rules. With regard to the prohibition against excessive collateral damage to the environment during armed conflict, it is submitted that this prohibition flows from a customary rule which emerged in the 1990s, rather than from Articles 51 and 52 of Additional Protocol I, and which complements Articles 35 and 55 AP I (i.e. for States Parties to AP I). This article argues that any military action which causes collateral damage to the environment must first be assessed under this relatively new customary prohibition; and subsequently, if no breach can be established and if applicable, by reference to Articles 35(3) and 55 AP I. In order to enhance the scope of this prohibition and provide better protection for the environment against collateral damage it is suggested that further investigations should be conducted into the consequences of warfare on the environment.
12
Marchant, Emma J. "Insufficient Knowledge in Kunduz: The Precautionary Principle and International Humanitarian Law." Journal of Conflict and Security Law 25, no. 1 (2020): 53–79. http://dx.doi.org/10.1093/jcsl/krz033.
Full textAbstract:
Abstract The targeting protocols applied by forces during armed conflict are some of the most secretive documents held by any military. However, their role in applying principles of international humanitarian law (IHL) means that they are key to understanding their development. This piece is primarily concerned with practical and operational application of the precautionary principle under IHL; how much knowledge is sufficient to carry out an attack lawfully during modern armed conflict. In order to establish if a standard has developed with the increase in intelligence, surveillance and reconnaissance technology, this piece uses the framework of an investigation into an incident in Kunduz, Afghanistan in 2009. I explore the difficulties of obtaining information post-incident, the differential standards expected by North Atlantic Treaty Organization (NATO) and the Bundesgerichtshof (German Federal Court of Justice), and the manner in which these can be evaluated through the principles of proportionality, distinction and precautions in attack. The piece looks at the interrelated issues raised by the Rules of Engagement and Tactical Directives, as well as the problems surrounding the clarity of intelligence available. I argue that this case is demonstrative of the failings inherent in the application and practical use of the precautionary principle outlined by IHL. The lack of transparency afforded in, and after, incidents of this nature prevents objective analysis and so the development of IHL can be obfuscated. I conclude that the lack of information following incidents of this kind confuses any intelligence standard that exists under IHL.
13
Gumboh, Esther. "Examining the Application of Deterrence in Sentencing in Malawi." Potchefstroom Electronic Law Journal / Potchefstroomse Elektroniese Regsblad 20 (December 14, 2017): 1–33. http://dx.doi.org/10.17159/1727-3781/2017/v20i0a4187.
Full textAbstract:
This article is an exposition of the application of deterrence in Malawian sentencing jurisprudence. Drawing from case law, it explores how courts employed deterrence before 1994 and the role deterrence continues to play in the constitutional era. The paper looks at how it is reflected in the treatment of sentencing factors and influences sentencing policy. It also considers how courts have conceptualised the distinction between specific and general deterrence regarding the principle of proportionality and repeat offenders. The paper concludes with a discussion of an emerging attempt to go beyond deterrence towards giving rehabilitation a greater role in sentencing.
14
Gumboh, Esther. "Examining the Application of Deterrence in Sentencing in Malawi." Potchefstroom Electronic Law Journal 20 (December 14, 2017): 1–33. http://dx.doi.org/10.17159/1727-3781/2017/v20i0a1167.
Full textAbstract:
This article is an exposition of the application of deterrence in Malawian sentencing jurisprudence. Drawing from case law, it explores how courts employed deterrence before 1994 and the role deterrence continues to play in the constitutional era. The paper looks at how it is reflected in the treatment of sentencing factors and influences sentencing policy. It also considers how courts have conceptualised the distinction between specific and general deterrence regarding the principle of proportionality and repeat offenders. The paper concludes with a discussion of an emerging attempt to go beyond deterrence towards giving rehabilitation a greater role in sentencing.
15
KOLOTOVA, NATALIA V. "PRINCIPLE OF DIRECT FORCE OF HUMAN RIGHTS AND PECULIARITIES OF SOCIAL RIGHTS." Proceedings of the Institute of State and Law of the RAS 14, no. 5 (December 12, 2019): 114–40. http://dx.doi.org/10.35427/2073-4522-2019-14-5-kolotova.
Full textAbstract:
International standards on human rights and Constitution of the Russian Federation put social rights on a par with civil and political rights what is interpreted as a necessity to provide them with equitable and efficient remedy, extension to them of the general principles of effect of human rights and the related remedial procedures. However, the specifics of the nature of social rights introduces its adjustments, at times, fairly significant ones. Thus, although Article 18 of RF Constitution proclaims the principle of direct force for all human rights, social rights primarily produce effect indirectly. Irrespective of the distinctions in the content of two principles — more generalized principle of direct effect of constitutional provisions and direct force of human rights; it is majorly recognized in the national doctrine of the constitutional right that the indirect force of social rights does not contradict to the general principle of direct effect of constitutional provisions. The indirect force of constitutional social rights is conditioned by the necessity of their specification and detalization in the laws; this can be stated in the rule itself or stem from a high degree of abstractness of social provisions formulated in the norms-standards and norms-principles. The indirect force manifests itself in the fact that courts when hearing cases related to challenging the provisions of social legislation apply the norms of the Constitution only in relationship with the specifying rules of branches of law referring to the fundamental constitutional principles.RF Constitutional Court distinguishes the rights "directly recognized by the Constitution" and "acquired by virtue of law" and pursues different policies in respect of their interpretation. The Court proceeds from the fact that the direct force of social rights is primarily aimed at the legislator who may not adopt laws unreasonably narrowing the scope of legal regulation of such rights thus interprets constitutional social rights in aggregate with other constitutional principles — support of citizens’ confidence in law and acts of the government, legal certainty and reasonable stability of legal regulation, proportionality etc.The highlighted specifics requires doctrinal comprehension and development of theoretical approaches to the content of a constitutional principle of direct force of human rights in the area of social rights, determination of legal tools and me cha-nisms of their remedy including via a proper judicial procedure.
16
Herlin-Karnell, Ester. "The Power of Comparative Constitutional Law Reasoning in European Criminal Law Procedure." ICL Journal 13, no. 1 (May 27, 2019): 1–27. http://dx.doi.org/10.1515/icl-2018-0047.
Full textAbstract:
Abstract This paper explores the constitutional dimension of comparative criminal law procedure in a European context. It does so by focusing on the European civil law traditions and by explaining how the impact of constitutional law reasoning has changed the criminal law landscape. The paper argues that the influence of European Union law and the European Convention on Human Rights regime together with other comparative law effects have led to an adapted version of the comparative law project, where the orthodox distinction between civil law and common law is largely erased. Specifically, the paper focuses on the question of fairness and justification in the criminal law process, the principle of proportionality and the notion of dignity in a comparative perspective. The paper draws on both doctrinal and theoretical examples.
17
Bogatyńska-Kucharska, Anna. "The Doctrine of Double Effect." Forum Philosophicum 25, no. 2 (December 4, 2020): 273–92. http://dx.doi.org/10.35765/forphil.2020.2502.18.
Full textAbstract:
The aim of the article is to present some of the differences and similari- ties in various versions of the double effect principle (DDE or PDE). The following formulations will be analyzed: that of Thomas Aquinas and two contemporary ap- proaches, namely those of Mangan and Boyle. It will be shown that the presented modern versions vary significantly and the distinction between their intended and only predicted effects is far from clear. As a result, the different contemporary for- mulations of DDE lead to contradictory conclusions, with some justifying what the others condemn. Moreover, it will be demonstrated that, unlike Aquinas, contem- porary authors mostly concentrate on unintentionality condition while neglecting the proportionality requirement. So, unlike Aquinas, they only take into account a narrow scope of cases, where the evil effect occurs with certainty, which leads to a complicated and intricate hypothetical intention test like Donagan’s. It will be shown that, besides its theoretical indistinctness, DDE lead to serious pragmatic risks. It can be quite easily misused as a kind of psychological mechanism to protect self-esteem from a sense of guilt since wrong-doing is treated as merely a predicted unintended effect.
18
Blank, Laurie R. "THE APPLICATION OF IHL IN THE GOLDSTONE REPORT: A CRITICAL COMMENTARY." Yearbook of International Humanitarian Law 12 (December 2009): 347–402. http://dx.doi.org/10.1017/s1389135909000130.
Full textAbstract:
AbstractOperation Cast Lead, the Israeli military operation in Gaza that began on December 27, 2008, demonstrated anew the challenges international humanitarian law faces in contemporary conflict. The Goldstone Report presented an opportunity to examine critically how the law applies in complicated modern warfare and how the law might be used to solve difficult problems such conflict poses.This article analyzes the Goldstone Report's application of the law to the conduct of both parties in the conflict to examine how it applies and interprets the legal standards within the framework of the Gaza conflict. In particular, the article focuses on two main shortcomings in the Goldstone Report's application of IHL: areas in which the report could have benefitted from a greater sensitivity to the complexities of modern warfare, and areas in which its approach is questionable as a matter of law.First, the article highlights the report's flawed examination of the challenges posed by contemporary conflicts in two fundamental areas of IHL: distinction and military objectives. Both require that military commanders and soldiers understand who is a civilian and who is a fighter or combatant, and which targets are military targets and which are civilian objects. Without a thorough and sophisticated understanding of how to make these determinations, military commanders, soldiers and policy makers will face grave difficulty in planning and carrying out military operations within the bounds of the law. The challenges presented in Operation Cast Lead are emblematic of some of the most difficult dilemmas modern warfare poses.Second, the article highlights several areas in which the Goldstone Report's application of IHL is questionable, either because it uses the incorrect legal standard or because it applies the wrong law when more than one body of law applies. The report errs twice in its treatment of the principle of proportionality, first by approaching jus in bello proportionality retrospectively rather than prospectively, and second by conflating jus ad bellum proportionality with jus in bello proportionality. Additional problems arise in its analysis of the law governing precautions in attack and the treatment of prisoners of war, and its assessment of responsibility for specific crimes, including attacks on civilians, destruction of property and hostage taking.
19
Ratuiste, Kyle. "The Limits of “Actively Dying” as a Moral Concept." Ethics & Medics 43, no. 5 (2018): 1–2. http://dx.doi.org/10.5840/em20184358.
Full textAbstract:
For the term “actively dying” to contribute to ethical decision making, it must communicate morally relevant information. For instance, concerning the principle of proportionality, the phrase must indicate a physiological condition of the patient that obviates the benefits of intervention, exacerbates existing burdens, or introduces new ones. Furthermore, it must relate this information accurately and in a timely fashion. The initial challenge is that terms like “actively dying” appear to be loosely defined and equivocally employed. While many people may presume that the final phase of one’s life prior to death is distinctive and therefore distinguishable from preceding phases, people employ a variety of terms to signify what they intuitively recognize. Further complicating the matter, there is an apparent divergence in what precisely people are trying to describe.
20
Gunawan, Yordan, Mohammad Haris Aulawi, and Andi Rizal Ramadhan. "Command Responsibility of Autonomous Weapons Systems under International Humanitarian Law." Jurnal Cita Hukum 7, no. 3 (December 18, 2019): 351–68. http://dx.doi.org/10.15408/jch.v7i3.11725.
Full textAbstract:
AbstractWar and Technological development have been linked for centuries. States and military leaders have been searching for weapon systems that will minimize the risk for the soldier, as technology-enabled the destruction of combatants and non-combatants at levels not seen previously in human history. Autonomous Weapon Systems are not specifically regulated by IHL treaties. On the use of Autonomous Weapons Systems, there are three main principles that must be considered, namely principle of Distinction, Proportionality and Unnecessary Suffering. Autonomous weapon systems may provide a military advantage because those systems are able to operate free of human emotions and bias which cloud judgement. In addition, these weapon systems can operate free from the needs for self-preservation and are able to make decisions a lot quicker. Therefore, it is important to examine who, in this case, the commander can be held responsible when an Autonomous Weapon System will commit a crime.Keywords: Command Responsibility, Autonomous Weapons Systems, International Humanitarian Law AbstrakPerang dan perkembangan Teknologi telah dikaitkan selama berabad-abad. Para pemimpin negara dan militer telah mencari sistem senjata yang akan meminimalkan risiko bagi prajurit itu, karena teknologi memungkinkan penghancuran para pejuang dan non-pejuang pada tingkat yang tidak terlihat sebelumnya dalam sejarah manusia. Sistem Senjata Otonom tidak secara spesifik diatur oleh perjanjian IHL. Pada penggunaan Sistem Senjata Otonom, ada tiga prinsip utama yang harus diperhatikan, yaitu prinsip Perbedaan, Proportionalitas, dan Penderitaan yang Tidak Perlu. Sistem senjata otonom dapat memberikan keuntungan militer karena sistem tersebut dapat beroperasi bebas dari emosi manusia dan bias yang menghakimi. Selain itu, sistem senjata ini dapat beroperasi bebas dari kebutuhan untuk pelestarian diri dan mampu membuat keputusan lebih cepat. Oleh karena itu, penting untuk memeriksa siapa, dalam hal ini, komandan dapat bertanggung jawab ketika Sistem Senjata Otonom akan melakukan kejahatan.Kata kunci: Tanggung Jawab Komando, Sistem Senjata Otonom, Hukum Humaniter Internasional АннотацияВойна и развитие технологий были связаны на протяжении веков. Государственные и военные лидеры искали системы вооружений, которые минимизируют риски для солдат, потому что технология позволяет уничтожать боевиков и не боeвиков на уровне, невиданном ранее в истории человечества. Автономный Комплекс Вооружения конкретно не регулируется соглашением о МГП (Международное Гуманитарное Право). При использовании Автономного Комплекса Вооружения необходимо учитывать три основных принципа, а именно: принцип различия, пропорциональность и потери среди мирного населения. Автономный Комплекс Вооружения может обеспечить военные преимущества, поскольку он может функционировать без человеческих эмоций и субъективных предубеждений. Кроме того, эта система вооружения может работать без необходимости самосохранения и может принимать решения быстрее. Поэтому важно выяснить, кто, в этом случае, командир, может нести ответственность, когда Автономный Комплекс Вооружения совершит преступление. Ключевые слова: Командная ответственность, Автономный Комплекс Вооружения, Международное Гуманитарное Право
21
Boespflug, Mark. "Locke’s Principle of Proportionality." Archiv für Geschichte der Philosophie 101, no. 2 (June 28, 2019): 237–57. http://dx.doi.org/10.1515/agph-2019-2001.
Full textAbstract:
Abstract Locke’s principle of proportionality – among his most important contributions to philosophy – states that we ought to apportion our assent to a given proposition in accord with the probability of that proposition on an adequate body of evidence. I argue that treatments of Locke’s principle fail to avoid interpreting it as a fundamentally doxastic prescription – a precept concerning how we ought to voluntarily control our assent. These interpretations are problematic on account of their implications concerning the degree of control that agents have over the doxastic process, and on account of how they cohere with numerous texts in the Essay. I suggest that the principle, instead, commends that we engage in certain activities, or practices, that tend to produce true beliefs.
22
Zhou, Yan. "The principle of proportionality." Chinese Language and Discourse 11, no. 1 (June 3, 2020): 107–33. http://dx.doi.org/10.1075/cld.20004.zho.
Full textAbstract:
Abstract In Mandarin conversation, utterances about future actions with severe consequences are observed to correlate with bigger promises, marked by devices indicating greater illocutionary force, as compared with those about actions with less serious consequences. Applying the principle of proportionality proposed by Goffman (1971), I argue that participants’ design of promise is proportional to the severity of the action consequences, which is evaluated by the participants on a moment-by-moment basis. The ad hoc construction of promises shows that promising is a dynamic process, rather than a one-time action. The proportionality principle may also account for the differences between promises in institutional discourse and ordinary conversation.
23
Budic, Marina. "Kant's retributivism and the death penalty." Theoria, Beograd 60, no. 3 (2017): 130–54. http://dx.doi.org/10.2298/theo1703130b.
Full textAbstract:
The paper deals with Kant's notion of punishment in general, as well as one specific form of punishment, namely, the death penalty. In the first part of the article we will exmine, Kant's views on punishment as well as an extent to which it is retributive. According to Kant's view, offenders should be punished exclusively for having committed an offense (retribution), and proportionally to the crime commited (ius talionis). In recent literature, there are interpretations that indicate Kant's criminal theory is not completely retributive, but rather combined, so that it contains elements of retribution and intimation. If we clearly outline the goal, justification and extent of punishment, the purpose and justification of forming the state (time and punishment), we will make sure that these interpretations are incorrect. The paper shows that Kant retribution determines the goal and justification of punishment, that the reason and justification of the state (and punishment) is the achievement of justice, that is, the preservation of individual freedoms of citizens on an equal footing, while the control of crime should be understood as the achievement of this goal. Also, one needs to bear in mind the distinction between the factual and the normative level - Kant claims that a person should be punished exclusively for having committed the offense, although her punishment simultaneously intimidates or deters the offense of another citizens, which is a factual claim. The theory of punishment prescribes the goal and justification of punishment, which falls within the normative domain, and in Kant?s opinion, it is fundamentally retributive. It is also necessary to take into account another distinction that Kant introduces, which is the distinction between the noumenal and phenomenal spheres of existence. Justice is a noumen or an idea, that the state pursues to achieve, while it is realized or made into a phenomenon when the state applies laws and penalties in a particular community. Intimidation or control of crime is part of the realization of justice in the empirical world. The second part deals with Kant's affirmation of the death penalty, objections to this affirmation, and ultimately, an alternative to this punishment is proposed. The alternative to the death penalty stems from incoherence in the application of the ius talionis principle. That could be one Kantian approach to punishment. A lifetime imprisonment argument avoids the objection of irreversibility of punishment (the argument from the irrevocability of the death penalty) and is in line with the basic principles of Kant's ethics.
24
Portuese, Aurelien. "Principle of Proportionality as Principle of Economic Efficiency." European Law Journal 19, no. 5 (April 15, 2013): 612–35. http://dx.doi.org/10.1111/j.1468-0386.2012.00611.x.
Full text
25
Borriello, Filippo. "Principle of Proportionality and The Principle of Reasonableness." Review of European Administrative Law 13, no. 2 (July 24, 2020): 155–74. http://dx.doi.org/10.7590/187479820x15930701852292.
Full textAbstract:
This paper examines a principle of particular relevance for administrative action and the concept of good administration, namely the principle of reasonableness, at the EU level, from the point of view of the Italian administrative doctrine, and jurisprudence of the Council of State. Specific attention will be paid to the many faces and functions of reasonableness, in administrative proceeding as well as in judicial review of discretion, and its connection with the idea of proportionality. Moreover, this article will discuss the influence and effects of the application of general principles of EU law on the Italian legal order. Finally, it will describe the EU principle of reasonableness has influenced the Italian administrative (case) law. This article aims to show that on the one hand the European principles of reasonableness and proportionality seem to be smoothly absorbed in the Italian administrative case law; on the other, the Europeanisation process still encounters resistance from a part of the Italian doctrine that persists in categorizing reasonableness as a principle different from proportionality.
26
Andersson, Anna-Karin Margareta. "Challenging the principle of proportionality." Journal of Medical Ethics 42, no. 4 (February 2, 2016): 242–45. http://dx.doi.org/10.1136/medethics-2015-103008.
Full text
27
Chan, H. C. M. "The Principle of Asymptotic Proportionality." Journal of Applied Mechanics 57, no. 1 (March 1, 1990): 225–31. http://dx.doi.org/10.1115/1.2888308.
Full textAbstract:
The Principle of Asymptotic Proportionality, which is based on the Green’s function method for equilibrium problems, is proposed. Using this principle, the induced far-field variable due to any distribution of applied physical quantities can be approximated. This principle has been verified by considering the induced stresses due to applied tractions and dislocations in two-dimensional linear elastic media, and has been shown to be applicable to other physical phenomena such as electrostatics, gravitation, and electromagnetism.
28
Turner, Derek. "Proportionality and the Precautionary Principle." Ethics, Policy & Environment 16, no. 3 (October 2013): 341–43. http://dx.doi.org/10.1080/21550085.2013.844571.
Full text
29
Cappelen, Alexander W., and Bertil Tungodden. "Fairness and the proportionality principle." Social Choice and Welfare 49, no. 3-4 (January 9, 2017): 709–19. http://dx.doi.org/10.1007/s00355-016-1016-6.
Full text
30
Egorov, A. A. "Moral Foundations of Law in the A. N. Radishchev’s Works." Lex Russica, no. 11 (November 15, 2020): 106–17. http://dx.doi.org/10.17803/1729-5920.2020.168.11.106-117.
Full textAbstract:
The paper is devoted to the study of the moral principles of law in the works of the outstanding educator, philosopher, lawyer and founder of revolutionary ideas in Russian science Aleksandr Nikolaevich Radishchev. Investigating the question of the relationship between morality and law in general, the author considers four conceptual models: a single regulatory and protective system (mononorms); the absence of common origins and features; understanding of law as a minimum of morality; complementary, but independent social regulators. The author concludes that the problem of the relationship between morality and law, despite the interest the representatives of the humanities have in it, needs further conceptual certainty by referring to the political and legal views of specific scientists. In the context of the A. N. Radishchev’s general legal views, the author examines the moral nature of the national state, the inviolability of natural law, the legal status of a person and procedural guarantees of the rights of the accused (defendant). The civil-legal views of A. N. Radishchev are considered separately. The author examines some questions of legal capacity through the prism of class distinctions denial, and analyzes the possibility of a person to use the services of a representative. The paper considers the proper moral aspect of A. N. Radishchev’s views in relation to the institution of property and concludes that the educator’s desire to recognize things as objects of property law and any person a subject of law. In terms of contract law, the author concludes that A. N. Radishchev reasonably believed that the subject of the contract must not contradict the law, and in the case of deliberate non-compliance with this principle by the parties, recognized the contract as invalid. As for the educator’s outlook on family law, it is focused on their value component: the voluntary nature of marriage; equality of spouses; proportionality of persons’ age when entering into marriage; the inadmissibility of understanding marriage as a simple civil transaction; the duty of parents to take care of children; the duty of children to selflessly and cordially honor their parents; freedom of inheritance by will with mandatory consideration of the interests of "illegitimate" children and "cohabitees".
31
Haque, Adil Ahmad. "Protecting and Respecting Civilians." New Criminal Law Review 14, no. 4 (2011): 519–75. http://dx.doi.org/10.1525/nclr.2011.14.4.519.
Full textAbstract:
There is a gap between the international humanitarian law of Geneva and the international criminal law of Rome, a gap between the law we have and the law we need if we are to “ensure respect for and protection of the civilian population” caught in the midst of armed conflict. The Rome Statute of the International Criminal Court fails to fully enforce four core principles of humanitarian law designed to protect civilians: distinction, discrimination, necessity, and proportionality. As a result, it is possible for a combatant with a culpable mental state, without justification or excuse, and in violation of humanitarian law, to kill civilians, yet escape criminal liability under the Rome Statute. The Rome Statute also ignores or misapplies three fundamental criminal law distinctions: between conduct offenses and result offenses, between material elements and mental elements, as well as between offenses and defenses. These distinctions are not empty formalisms but rather are the means by which any system of criminal law gives expression to its underlying moral values. The purpose of this article is to expose these defects and propose a way to overcome them. Drawing on contemporary criminal law theory, it offers a new approach to war crimes against civilians, one that better protects and respects the value of civilian life. This article proposes a redefined offense of Willful Killing that fully incorporates the principles of distinction and discrimination as well as a new affirmative defense that fully incorporates the principles of necessity and proportionality. Only by adopting such an approach can international criminal law provide civilians the legal protection and moral recognition they deserve. The recent adoption of an operative definition of the crime of aggression during a Review Conference in June 2010 suggests that further reform of the Rome Statute is achievable.
32
Van Schaack, Beth. "Human Shields: Complementary Duties under IHL." AJIL Unbound 110 (2016): 317–22. http://dx.doi.org/10.1017/aju.2016.5.
Full textAbstract:
The phenomenon of human shields challenges core tenets of international humanitarian law (IHL), including its careful dialectic between the imperatives of humanity and military necessity. Although the principles of distinction, precaution, and proportionality are well established in the abstract, consensus remains elusive when these concepts are applied to situations involving human shields, who blur the boundary between civilians and combatants. And while the prohibition against using human shields is absolute, it is too often honored in its breach in today's asymmetrical conflicts. Indeed, resort to human shields has become attractive precisely because it exploits protective legal rules to the detriment of those principled armed actors who value—and thus strive for—IHL compliance. These parties, in turn, are struggling to adapt their operations to a practice that has become “endemic” in the modern battlefield.
33
Belianevych, O. A. "PRINCIPLE OF PROPORTIONALITY IN ECONOMIC LAW." Economics and Law, no. 1 (April 3, 2019): 3–10. http://dx.doi.org/10.15407/econlaw.2019.01.003.
Full text
34
MOON, Jaewan. "Excessive Expansion of the Proportionality Principle." Korean Association of International Association of Constitutional Law 24, no. 3 (December 31, 2018): 21–47. http://dx.doi.org/10.24324/kiacl.2018.24.3.21.
Full text
35
Hill, Theodore P. "A proportionality principle for partitioning problems." Proceedings of the American Mathematical Society 103, no. 1 (January 1, 1988): 288. http://dx.doi.org/10.1090/s0002-9939-1988-0938685-8.
Full text
36
Kasher, Asa. "The Principle of Distinction." Journal of Military Ethics 6, no. 2 (June 2007): 152–67. http://dx.doi.org/10.1080/15027570701436841.
Full text
37
Mudrecki, Artur. "Impact of the Principle of Proportionality in Tax Law on the Jurisprudence of the Court of Justice of the European Union and the Supreme Administrative Court in Poland." Public Governance, Administration and Finances Law Review 3, no. 1 (June 30, 2018): 46–56. http://dx.doi.org/10.53116/pgaflr.2018.1.5.
Full textAbstract:
The principle of proportionality in tax law as an EU and constitutional standard may play an important role in the interpretation of tax law. The principle of proportionality is associated with moderation of the activities of public authorities and minimization of their interference in the sphere of rights and freedoms. The principle of proportionality is also called the principle of commensurability, moderation, and adequacy. The article analyses the impact of the proportionality principle in tax law on the case law of the Court of Justice of the European Union. The case law of the Polish Supreme Administrative Court uses the principle of proportionality when interpreting tax law, and the judgments of the Court of Justice of the European Union and the Polish Constitutional Tribunal have a significant impact on the jurisprudence of administrative courts in Poland.
38
Troitskaya, Alexandra. "The Proportionality Principle in the Jurisprudence of the Russian Constitutional Court." Review of Central and East European Law 46, no. 2 (May 27, 2021): 203–33. http://dx.doi.org/10.1163/15730352-bja10049.
Full textAbstract:
Abstract This paper addresses the boundaries on restrictions of human rights imposed by the proportionality principle, examines the elements of the structure of this principle, and attempts to present the meaning of its elements consistently in terms of the potential for the protection of fundamental rights that are subject to restrictions. The main criticisms of some proportionality tests are considered, as well as ways to minimize the risks associated with the use of proportionality. These theoretical considerations are placed in the context of the jurisprudence of the Russian Constitutional Court, to demonstrate that the Court, instead of consistently applying proportionality tests, often draws generalized conclusions regarding the proportionality (or disproportionality) of restrictions and therefore tends to heighten some of the risks of applying the principle. One can observe some positive changes in the application of the principle, and in further requests for this. Conclusions are formulated concerning the improvement of the Court’s activities in terms of a more consistent and structured implementation of the principle of proportionality.
39
Jaroszyński, Tomasz. "National Parliaments’ Scrutiny of the Principle of Subsidiarity: Reasoned Opinions 2014–2019." European Constitutional Law Review 16, no. 1 (March 2020): 91–119. http://dx.doi.org/10.1017/s1574019620000048.
Full textAbstract:
Principle of subsidiarity – Early Warning Mechanism – Protocol No. 2 on Proportionality and Subsidiarity – The scope of the principle of subsidiarity – The role of national parliaments in the EU – National parliaments’ reasoned opinions – Principle of proportionality – Principle of conferral – National sovereignty in the EU – National identity in the EU – Justification of draft legislation acts
40
Rosenberg, Jonas Hultin. "Equality, Proportionality, and the All-Affected Principle." Democratic Theory 6, no. 1 (June 1, 2019): 73–96. http://dx.doi.org/10.3167/dt.2019.060105.
Full textAbstract:
The question of who ought to be included in the demos is distinct from, and yet related to, the question of how to distribute decisionmaking power among those who are included. Political equality is the most common answer to the former question within democratic theory. In democratic practice, it is usually realized through one person one vote. Within democratic theory, there is not as much agreement as to what the answer to the latter question should be. The answer that has attracted most attention within the scholarly literature is that all those who are affected should be included. However, prominent scholars have argued that this all-affected principle is incompatible with political equality and therefore an unattractive answer to the question of inclusion. This article challenges this critique and argues that it is based on a misconception of political equality and a narrow reading of the all-affected principle.
41
정주백. "A Study on the Principle of Proportionality." Journal of Constitutional Justice 2, no. 2 (December 2015): 245–77. http://dx.doi.org/10.35215/jcj.2015.2.2.008.
Full text
42
김대홍. "The Principle of Proportionality in Hudud Theft." 법사학연구 ll, no. 41 (April 2010): 247–65. http://dx.doi.org/10.31778/lawhis..41.201004.247.
Full text
43
Poto, Margherita. "The Principle of Proportionality in Comparative Perspective." German Law Journal 8, no. 9 (September 1, 2007): 835–69. http://dx.doi.org/10.1017/s2071832200006003.
Full textAbstract:
This contribution will contain an analysis of important European dynamics, particularly at this moment when it seems to be necessary to restart the process of a unified European identity, which was, in a way, compromised after the failure of the EU Constitution and the difficulty of giving effectiveness to democracy:the EC professes democracy without being democratic. Thus the fragility of its political institutions, inherently perilous, necessarily reflects on the legitimacy of its legal order, while the constitutional balance intrinsic to the separation of powers ideal is dangerously absent. In other words, while in every Member State, the administrative law system forms part of a working system, this is not the case in the Community.
44
Allman, Thomas Y. "The Proportionality Principle after the 2015 Amendments." Defense Counsel Journal 83, no. 3 (July 2016): 241–56. http://dx.doi.org/10.12690/0895-0016-83.3.241.
Full text
45
Wright, Caroline F., Matthew E. Hurles, and Helen V. Firth. "Principle of proportionality in genomic data sharing." Nature Reviews Genetics 17, no. 1 (November 23, 2015): 1–2. http://dx.doi.org/10.1038/nrg.2015.5.
Full text
46
Frigerio, Roberto. "(Bounded) continuous cohomology and Gromov’s proportionality principle." Manuscripta Mathematica 134, no. 3-4 (October 11, 2010): 435–74. http://dx.doi.org/10.1007/s00229-010-0402-0.
Full text
47
Franceschini, Federico. "Proportionality Principle for the Lipschitz simplicial volume." Geometriae Dedicata 182, no. 1 (January 18, 2016): 287–306. http://dx.doi.org/10.1007/s10711-016-0139-3.
Full text
48
Groussot, Xavier. "Proportionality in Sweden: The Influence of European Law." Nordic Journal of International Law 75, no. 3-4 (2006): 451–72. http://dx.doi.org/10.1163/157181006779139410.
Full textAbstract:
AbstractThe principle of proportionality constitutes a complex principle that could be seen as the keystone of the general principles of Community law and ECHR. The aim of this article is to demonstrate the influence of European Community (EC) law and the European Convention of Human Rights (ECHR) on the definition and application of the principle of proportionality in Swedish public law from 1996 to 2006. The Supreme Administrative Court has given some indications as to the application of the principle of proportionality, notably as to the importance of the balancing of interests. Interestingly, this Court has also been proactive as to the application of the principle of proportionality in internal law, e.g. concerning environmental law, tax law, administrative licenses. Moreover, the principle has influenced national legislation in many fields. It is argued, finally, that these jurisprudential and legislative developments increase the judicial protection of the individual and also modifies the structure of traditional judicial review by attributing a new role to Swedish national courts.
49
Fellmeth, Aaron. "The Proportionality Principle in Operation: Methodological Limitations of Empirical Research and the Need for Transparency." Israel Law Review 45, no. 1 (March 2012): 125–50. http://dx.doi.org/10.1017/s0021223711000057.
Full textAbstract:
The principle of proportionality, notoriously obscure in application and subjective in interpretation, has been enforced so rarely as to call into question its potency as a meaningful international legal standard. Nonetheless, international criminal tribunals, academics, and the ICRC's monumental study on customary international humanitarian law all confidently proclaim the principle as embedded in the customary international law applicable to both international and non-international armed conflicts. To assess whether these claims are accurate, and to flesh out how states interpret the principle in practice, the author and a colleague have undertaken a long-term, multinational empirical study of state practice in interpreting and enforcing the proportionality principle. This article discusses the methodological options available and explains the one chosen for the proportionality study. The limitations of the study, in spite of its deliberate methodology, suggest that the debilities of the proportionality principle may not be conceptual as much as a byproduct of unnecessary military secrecy. This article concludes that greater transparency in state compliance with the rule of discrimination and the principle of proportionality would, at least, facilitate an understanding of how the hitherto obscure principle operates in practice and, at best, could create systemic effects that would decrease the dangers to civilians in armed conflicts.
50
Hofmann, Laura. "Strengthening the Principle of Distinction?" Journal of International Humanitarian Legal Studies 6, no. 2 (August 27, 2015): 377–413. http://dx.doi.org/10.1163/18781527-00602004.
Full textAbstract:
The primary impetus for the Interpretive Guidance on the Notion of Direct Participation in Hostilities by the International Committee of the Red Cross was the need for an accepted understanding of the notion of ‘direct participation in hostilities’. The Interpretive Guidance recommends that in non-international armed conflicts organised armed groups consist only of persons whose continuous function for the groups involves taking direct part in hostilities. The objective of this article is to assess to what extent the ‘continuous combat function’ category strengthens the protection of civilians under the principle of distinction.