Proportionality (international humanitarian law)

Proportionality is a general principle in law which covers several special (although related) concepts. The concept of proportionality is used as a criterion of fairness and justice in statutory interpretation processes, especially in constitutional law, as a logical method intended to assist in discerning the correct balance between the restriction imposed by a corrective measure and the severity of the nature of the prohibited act. Within criminal law, it is used to convey the idea that the punishment of an offender should fit the crime. Under international humanitarian law governing the legal use of force in an armed conflict, proportionality and distinction are important factors in assessing military necessity.

The principle of guilt is an absolute standard on which the 17th century Bloody Code of England emerged, which specified the death penalty even for minor crimes.

In the 18th century Cesare Beccaria published On Crimes and Punishments which was to form the basis of penology based on the relative standard of culpability. As a result Jeremy Bentham developed the idea of the panopticon in which prisoners would simply be watched, rather than subjected to corporal punishment. The idea in practice became a cruel and ineffective corrective.

A more sophisticated concept of proportionality that was testable in law was first developed in the High State Administrative Courts (Oberlandesgericht) in Germany in the late 19th century, to review actions by the police.

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