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measure has already been found a suitable and necessary means of achieving a legitimate aim.545

The mainstream “proportionality test” can be pictured as follows (Chart 5):

Chart 5. “Proportionality test”: The mainstream view.

The idea of “proportionality test” faces two difficulties. The first one relates to the fact that it is purely procedural in nature: as such, the test only provides a list of issues to be considered but offers no substantive answers. I have already discussed this objection above.546 Yet, those who like the idea would respond that such a test is better than nothing: at least it makes the decision-making process transparent, all the while reducing indeterminacy as much as possible, since a decision-maker is bound by the content and order of questions. However, the second, and more fundamental, problem is that the “proportionality test” is logically flawed. The

“proportionality test” as a linear sequence of distinct elements is impossible, since the mutual dependence of the balancing and the categorical approaches shows up within the test’s structure.

In order to be able to weigh interests under the balancing approach, we would need to know what to put on the scale. In other words, we would need to define the substance and importance of compared interests, but this must be a definition based on legal criteria, since otherwise we would be unable to explain why our proposed

545See Alexy R. A Theory of Constitutional Rights (Op. cit.), p. 397-401; Barak A. Op. cit., p. 344; Jackson V.C. Constitutional Law in an Age of Proportionality // Yale Law Journal. 2015. P. 3094-3196, 3100, 3157; Rivers J. Op. cit., p. 195-201; Varlamova N.V. Op. cit., s. 9, 17; Schlink B. Op. cit., s. 63-64 [p. 725-726 in original]; Khosla M. Op. cit., s. 59 [p. 299 in original].

546See above, p. 44-46, 130-132 of this study.

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balance is any better than anyone else’s balance. This brings us to the categorical approach – to rights and to aims behind their limitations.

But in order to define the substance and scope of rights and opposing social aims under the categorical approach, we would have to assess and weigh various considerations that are invoked in support of one or another interpretation of these rights and aims. What interests deserve to be included in the ambit of a right (as a matter of a balance between social values)? And to what extent considerations invoked to limit a right are compatible with its nature? Were we to avoid the explicit and reasoned articulation of these issues, we would still be unable to avoid a choice between competing interpretations of rights and aims. But then such a choice would lack explanation and would seem to be based on something other than legal criteria. Thus, we return to the balancing approach.

The mutual dependence of the balancing and the categorical approaches turns application of the principle of proportionality in human rights law into circular legal argument. It progresses as parties to a case alternately challenge each other’s versions of proportionality – a particular balance of interests and a particular interpretation of rights and aims – as either “irrelevant” or “non-autonomous”. This

“deep structure” of proportionality argument about human rights limitations at once reveals the incoherence of the surface structure (“proportionality test”), as we see (i) circularity instead of linear analysis and (ii) the collapsing distinction between “balancing” and “categorical” steps of the test.

I will now show how these argumentative features manifest themselves in judicial reasoning. I will use two cases as examples – Beit Sourik Village Council v. The Government of Israel, decided by the Supreme Court of Israel, and Murat Vural v. Turkey, decided by the European Court of Human Rights.

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Beit Sourik Village Council v. The Government of Israel

The judgment by the Supreme Court of Israel in the case of Beit Sourik Village Council v. The Government of Israel547 (“Beit Sourik case”) is regarded as a paradigmatic example of analysis under the “proportionality test” in human rights law.548 Aharon Barak, the author of the judgment, apparently sought to demonstrate how an ideal mainstream doctrinal model would work in practice. In the Beit Sourik case, the Court decided whether the construction of a separation fence by the Israeli government in the West Bank amounted to a disproportionate interference with the rights of local Palestinian residents under international law. The issue of proportionality was central to the whole judgment. The Court readily assumed the legal authority of an Israeli military commander to erect a security obstacle in the occupied area,549 but this determination was only the beginning of the inquiry because what mattered was how that authority was exercised: “The military commander is not at liberty to pursue, in the area held by him in belligerent occupation, every activity which is primarily motivated by security considerations”

(emphasis added. – G.V.).550 Rather, in choosing where to build the fence the commander was limited in his discretion by the need to reconcile interests affected by the construction. He “must consider, on one hand, security considerations and, on the other hand, the interests of the civilian population [and] must attain a balance between these different considerations”.551 For the Court, this balance was expressed in the principle of proportionality – a general principle of international law and a principle inherent in the law of belligerent occupation.552 Along with both parties to

547Supreme Court of Israel. HCJ 2056/04, Beit Sourik Village Council v. The Government of Israel [2004]. Judgment. URL: http://elyon1.court.gov.il/Files_ENG/04/560/020/A28/04020560.A28.pdf.

548See, e.g.: Jackson V.C. Op. cit., p. 3118.

549Beit Sourik Village Council v. The Government of Israel, §§ 26-31.

550Ibid., § 33.

551Ibid., § 34.

552Ibid., §§ 36-37.

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the dispute,553 the Court thus framed the key issue in the case as follows: “[I]s the route of the separation fence proportionate?”554

The Court defined the principle of proportionality through a characteristic combination of categorical and balancing elements. On the one hand, proportionality was a means-ends inquiry. It “focuse[d] … on the relationship between the objective whose achievement is being attempted, and the means used to achieve it”.555 On the other hand, proportionality was a cost-benefit inquiry. It meant, in that case,

“balancing between security and liberty”556 and “comparing the advantage of the administrative act with the damage that results from it”.557 As we will see in greater detail below, this duality of proportionality was expressed in the threefold test – the step-by-step analysis of suitability of the government action (“appropriate means”),558 its necessity (“least injurious means”)559 and its proportionality stricto sensu (“weigh[ing] the costs against the benefits”).560 Using this test, the Court struck down almost all of the construction and seizure orders of the military commander, with the exception of one that had already been amended. The reasoning of the Court in relation to all of the orders was typical, so I will therefore use the section of the judgment concerning the Jebel Muktam mountain segment of the fence.561

Starting with categorization …

The Court began with the sub-tests of suitability and necessity. The military commander proposed the route of the fence that surrounded the mountain range of

553Ibid., § 11 (petitioners), § 15 (government).

554Ibid., § 44.

555Ibid., § 40.

556Ibid., § 36.

557Ibid., § 41.

558Ibid.

559Ibid.

560Ibid., § 59.

561Ibid., §§ 51-62.

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Jebel Muktam and for this reason cut off the villages at the foot the mountain from agricultural lands on the sides of the mountain. According to the military commander, that route was required to ensure topographic control of this area and decrease the probability of terrorist attacks, including “flat-trajectory” fire on military patrols as well as on the highway passing next to the mountain.562 The Court deferred to the opinion of the commander to the extent that, first, the route “passe[d] the test of military rationality [and] realize[d] the military objective of the separation fence”563 (suitability) and, second, “there [was] no alternate route that fulfill[ed], to a similar extent, the security needs while causing lesser injury to the local inhabitants”564 (necessity). Thus, with regard to both these sub-tests, the Court applied categorical criteria: it only had to answer either in the affirmative or in the negative, no balancing.

This categorical approach to proportionality was, however, both “irrelevant” and “non-autonomous”. On the one hand, it was mechanical because obviously under-inclusive. If all what was required from the military commander was to find the rational and least restrictive means of action solely from the standpoint of a particular legitimate purpose, then such a proportionality assessment left no room for consideration of the extent of harm caused by this action. To put it differently, if control over Jebel Muktam was the only way to protect security, then under the categorical approach the route of the fence was proportionate even if its consequences for the local villagers were catastrophic.

On the other hand, that approach was subjective because it could not explain why the views of the commander regarding military rationality and necessity of the proposed route should have been preferred to the views of the petitioners on the same issue. The latter were expressed through the affidavit of the Council for Peace and Security, a non-partisan organization, that argued, in support of the petitioners, that

562Ibid., §§ 51, 55.

563Ibid., § 57.

564Ibid., § 58.

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the topographic control over Jebel Muktam was not only unnecessary from a military standpoint565 but also, in fact, detrimental to security since a far-reaching fence would “create superfluous and dangerous friction with the local population, embittered by the damage inflicted upon them”.566 The Court said that, out of the two conflicting opinions, it must choose the military opinion of the official who is responsible for security.567 But this criterion itself appeared mechanical and subjective. Why is official status of a person as such a sufficient reason to accept his/her view on suitability and necessity? And why would it not be more reasonable to accord more weight to the opinion of an independent expert rather than an interested party? These puzzling questions merely illustrate the more general idea that, looking at a particular legitimate objective and a means to fulfill it, a court acting under the categorical approach, first, is unable to compare the benefit of achieving the objective against its negative consequences for affected interests, and second, has no legal criterion at its disposal that would prioritize between the conflicting visions of the objective and of the means to fulfill it.

…Moving to balancing…

This is why resort to balancing was needed. Moving to the next criterion, proportionality stricto sensu, the Court introduced the interests of the other party into the picture and inquired into whether the gravity of the harm caused to local residents outweighed the security benefit. According to the Court, the proportionality stricto sensu sub-test was not satisfied:

The route undermines the delicate balance between the obligation of the military commander to preserve security and his obligation to provide for the needs of the local inhabitants. …[T]he route which the military commander established for the security fence … injures the local inhabitants in a severe and acute way… [M]ore than 13,000

565Ibid., § 54. See also the general summary of the Council’s affidavit: Ibid., § 18 (“Distancing the planned route from Israeli towns in order to seize distant hilltops with topographical control is unnecessary, and has serious consequences for the length of the separation fence, its functionality, and for attacks on it”).

566Ibid., § 54. See also: Ibid., § 18 (“In general, the fence must be far from the houses of the Palestinian villages, not close to them. If the fence is close to villages, it is easier to attack forces patrolling it”).

567Ibid., § 47.

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farmers … are cut off from thousands of dunams of their land and from tens of thousands of trees which are their livelihood, and which are located on the other side of the separation fence. … [T]he life of the farmer will change completely in comparison to his previous life. … These injuries are not proportionate.568

This reasoning, even if intuitively plausible, was, however, deeply problematic from the standpoint of proportionality’s constitutive assumptions. For the Court essentially avoided a direct comparison between the potential harm to Palestinian villagers and the actual harm already caused to Israeli citizens by terrorist attacks. It was all the more striking given that the Court had started with a powerful description of “a campaign of terror against Israel and Israelis”,569 the dramatic death toll and the “bereavement and pain [that] wash over [Israelis]”.570 But when it came to the balancing stage, the Court portrayed the matter as if a grave injury on the one side was sufficient for a finding of disproportionality, irrespective of an injury on the other.

However, one is left puzzled over whether the Court would have been able to weigh those injuries at all. How was it supposed to balance the ruined lives of Israeli civilians against the ruined lives of Palestinian farmers, or weigh destroyed houses on the Israeli side against uprooted olive trees on the Palestinian side? On the one hand, would not any such comparison look utterly inadequate, unable to capture the complexity of the whole political crisis of which the fence project was part? On the other hand, would not the results of any such comparison be politically charged and therefore arbitrary from a legal standpoint? As we can see, any balancing in the Beit Sourik case would have looked both “irrelevant” and “non-autonomous”.

568Ibid., §§ 60-61. See also: International Court of Justice. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. Advisory Opinion of 9 July 2004 // I.C.J. Reports 2004. P. 229. Separate Opinion of Judge Kooijmans. § 34.

569Beit Sourik Village Council v. The Government of Israel, § 1.

570Ibid.

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…And back to categorization…

The balancing approach turned out to be legally empty: it could not provide a legal – as opposed to a harshly disputed political – definition of what was to be put on the scale. As a result, the outcome of the balancing exercise looked like mere preference of the petitioners’ vision of harm over that of the Israeli government. Therefore, the Court felt the need to return to the categorical approach in order to substantiate the balancing outcome. It did so by invoking the notion of rights. The balance, according to the Court, tilted in favor of Palestinian villagers because the proposed route of the fence “violat[ed] their rights under humanitarian international law”,571 including their right to property and freedom of movement. Moreover, according to the Court, “family honour and rights” of local inhabitants were the cornerstone of the international legal regime applicable in the occupied area.572

The problem with rights, however, was that they figured on the other side as well. The military commander argued in the pleadings that “at issue [were] the lives of the citizens and residents of Israel, who [were] threatened by terrorists who infiltrate[d] into the territory of Israel”.573 Where rights to life and to property of Israeli citizens were put against the right to property and freedom of profession of Palestinians, nothing in the notions of a right or a freedom indicated any way to resolve the conflict. Instead, the proper scope of affected rights was a matter of deep political controversy in the case at hand, not only between Israelis and Palestinians but also among Israelis themselves. For example, two different groups of residents of an Israeli town adjacent to the proposed fence made the opposite submissions in the proceedings: while one group argued that the construction of the fence should be moved further from the town closer to a Palestinian village to avoid danger to the

571Ibid., § 60. The Court referred to the following legal provisions: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907. Art. 46 // Deystvuyushcheye mezhdunarodnoye pravo. T. 2. M., 1997. S. 575-587; Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949. Art. 27 // Deystvuyushcheye mezhdunarodnoye pravo. T. 2. M., 1997. S. 681-731.

572Ibid., § 59.

573Ibid., § 12.

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town’s residents, the other thought that such a route would only antagonize Palestinian villagers and would thus be a true threat to peace.574

…And again to balancing…

Once again, the categorical approach led into a deadlock – a conflict between rights, complicated by reversibility (rights vs. rights, security vs. security). The Court could avoid it only by turning back to balancing. It had to make rights and public interests a matter of more-or-less, equally valid and applicable in the abstract, but realizable to various degrees in the circumstances of a particular case, and therefore reconcilable. The Court tried to reach this reconciliation through a key move in its reasoning – the formulation of a proportionate alternative:

The original administrative act is disproportionate in the narrow sense if a certain reduction in the advantage gained by the original act – by employing alternate means, for example – ensures a substantial reduction in the injury caused by the administrative act. … [T]he separation fence will be found disproportionate if an alternate route for the fence is suggested that has a smaller security advantage than the route chosen by respondent, but which will cause significantly less damage than that original route (emphasis added. – G.V.).575

The Court thus narrowed down its task to a comparison between the route proposed by the military commander and an alternative route proposed by the petitioners together with the Council for Peace and Security. Using this approach, the Court determined that, with regard to the Jebel Muktam segment of the route, the construction of the fence on the Israeli side of the mountain (a proposal of the Council) would indeed amount to a proportionate alternative. This was because, according to the Court, a great reduction in the level of harm caused to the villagers outweighed a small decrease in the benefit sought by the military commander:

The gap between the security provided by the military commander’s approach and the security provided by the alternate route is minute, as compared to the large difference

574Ibid., § 69.

575Ibid., §§ 41, 44.

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between a fence that separates the local inhabitants from their lands, and a fence which does not separate the two (emphasis added. – G.V.).576

This approach of the Court is remarkable for several reasons, yet all of them illustrate the logical interdependence of the two discussed approaches to proportionality analysis.

First, balancing between the original and the alternative routes using a comparison between the marginal reduction of the benefit (“minute”) and the marginal reduction of the harm (“large”) suffered from obvious incommensurability, since these calculations related to disparate interests. On the other hand, balancing here was based on contested assumptions about the value of competing interests.

What for the petitioners was a “minute” change, for the military commander was a radical blow to his military project, and vice versa.577 This is evident, for example, from the attitudes of the parties towards the construction of agricultural gates along the fence. According to the military commander, the gates would significantly mitigate the harm as they would allow farmers to use their lands, and would therefore ensure the right balance between liberty and security.578 For the petitioners (and the Court), however, the burdensome licensing regime at the gates, long lines and difficulties with the passage of vehicles would not mitigate the harm to the extent necessary to restore the balance.579 Moreover, the very need to use gates would be incompatible with the human dignity of local residents.580 The petitioners and the respondent proceeded from different assumptions about the respective value of the relevant interests (an interest in pursuing a defence policy, an interest in freely choosing a profession, etc.). And, to revert back to Alexy’s terminology, where parties disagree about the abstract value (weights) of their competing interests, it is

576Ibid., § 61.

577Ibid., § 55 (“Respondent … claims that [defence] forces’ control of Jebel Muktam is a matter of decisive military importance. … [T]he route proposed by petitioners is considerably topographically inferior, and will endanger the forces that will patrol along the fence”).

578Ibid., §§ 13, 55.

579Ibid., §§ 60, 82.

580Ibid., § 22.