FROM PROTECTION TO JUSTIFICATION: THE CRISIS OF THE PROPORTIONALITY PRINCIPLE IN INTERNATIONAL HUMANITARIAN LAW

The ongoing humanitarian crisis during times of war has long been established, as civilians are often the main victims of armed conflict despite having laws intended to protect them. Although the principle of proportionality was established in IHL to protect civilians from undue suffering, it is being increasingly misused by state actors as a justification for mobilising rather than providing civilian protection. This paper uses a comparative case study of the wars in Gaza and Ukraine. The analysis of data about state justifications, state discourse, and civilian casualty numbers will be conducted through qualitative discourse analysis. The states are able to use IHL to justify their military actions through the vagueness of the principle of proportionality and the lack of effective mechanisms for accountability. The study findings identify two different strategies employed by states, either absolute denial or justification for IHL, as well as the fact that the subjective interpretation of "military advantage" allows disproportionate attacks to be viewed as lawful. Hence, the integrity of IHL is decreasing due to the lack of accountability and political barriers to prosecution.