Proportionality is a general principle in law which covers several separate (although related) concepts: A concept of proportionality that was testable in law was first developed in the German administrative courts in the late 19th century, notably the Prussian Oberverwaltungsgericht (appeals court of general administrative jurisdiction), to reign in the discretion to act granted to the police by statute.
Unlike Europe, the proportionality test as a means to characterize whether Commonwealth legislation falls under a head of power under section 51 of the Constitution of Australia,[6] has attracted divergent viewpoints, in which Kirby J has remarked that the 'test has not enjoyed universal favour'.
The principle of guilt is an absolute standard from 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.
[13][14] Luis Moreno-Ocampo was the Chief Prosecutor at the International Criminal Court who investigated allegations of war crimes during the 2003 invasion of Iraq.
International humanitarian law and the Rome Statute permit belligerents to carry out proportionate attacks against military objectives,[13] even when it is known that some civilian deaths or injuries will occur.
A crime occurs if there is an intentional attack directed against civilians (principle of distinction) (Article 8(2)(b)(i)) or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality) (Article 8(2)(b)(iv)).
Article 8(2)(b)(iv) criminalizes: Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated; Article 8(2)(b)(iv) draws on the principles in Article 51(5)(b) of the 1977 Additional Protocol I to the 1949 Geneva Conventions, but restricts the criminal prohibition to cases that are "clearly" excessive.