The Concept of Proportionality: Old Questions and New Ambiguities

Abstract

In November 2001, in the first few months of the war on terrorism, US and UK forces in Afghanistan, together with the Northern Alliance, rounded up more than 400 Taliban and suspected al-Qaeda fighters and brought them to the Qala-i-Jangi fortress outside of Mazar-i-Sharif. They neglected to disarm the prisoners completely, and in the midst of some initial interrogation procedures, some of the detainees detonated some grenades, seized weaponry and rioted. In response, airstrikes were called in, and over the next twelve hours they proceeded to bomb the prison relentlessly, eventually killing all 400 prisoners. A few days later, US Secretary of Defense Donald Rumsfeld was asked, during his daily press briefing, whether the response might have been ‘disproportionate’. He replied: Now, the word ‘proportion’ — ‘proportionate’ is interesting. And I don’t know that it’s appropriate. And I don’t know that I could define it. But it might be said — and I wouldn’t say it — (laughter) — but it might be said by some that to quickly and aggressively repress a prison riot in one location might help dissuade people in other locations from engaging in prison riots and breaking out of prison and killing more people. I don’t know if that’s true. It might also persuade the people who are still in there with weapons,

The main problem with the principle of proportionality is not whether or not it exists but what it means and how it is to be applied.¹