While much of the world engages in hand-wringing, placard-waving, teeth-gnashing, and rocket-launching over Israel’s “disproportionate” response to Hamas attacks from Gaza, it’s worth looking at what the doctrines of “proportionality” actually say.
Making the rounds is a two-year old quote from Lionel Beehner’s paper for the Council on Foreign Relations in which he summarizes the principle of proportionality as laid out by the 1907 Hague Conventions. “According to the doctrine, a state is legally allowed to unilaterally defend itself and right a wrong provided the response is proportional to the injury suffered. The response must also be immediate and necessary, refrain from targeting civilians, and require only enough force to reinstate the status quo ante.”
The precise wording of the doctrine can be found in Article 51, not Article 49 as Beehner writes, of the Draft Articles of the Responsibility of States for Internationally Wrongful Acts. “Countermeasures must be commensurate with the injury suffered, taking into account the gravity of the internationally wrongful act and the rights in question.”
This is vague and open to interpretation, as Beehner admits. And it’s further complicated by the fact that the doctrine was laid out at a time when war was fought between sovereign states with standing armies rather than asymmetrically between a sovereign state and a terrorist gang.
Proportion, as defined by Beehner and the Hague Conventions, is impossible between Israel and Hamas. The Israel Defense Forces are more professional, competent and technologically advanced than Hamas and will inflict greater damage as a matter of course. And Hamas’s war aim is entirely out of proportion to Israel’s. Israel wants to halt the incoming rocket fire, while Hamas seeks the destruction or evacuation of Israel.
Beehner’s proportionality doctrine is therefore unhelpful. Each side’s ends and means are disproportionate to the other. And nowhere in that doctrine are casualty figures or the intent of the warring parties factored in.
In any case, no war has ever been fought tit for tat, and the Hague Conventions doesn’t say any war should be. The American response to Japan’s attack on Pearl Harbor went well beyond sinking an equal number of ships in a Japanese harbor, for instance. And European Jews certainly were not entitled to execute six million German civilians after the Holocaust.
The proportionality doctrine spelled out here is really only useful up to a point. “It’s always a subjective test,” Beehner correctly quotes Vanderbilt University Professor Michael Newton as saying. “But if someone punches you in the nose, you don’t burn their house down.” That much most of us can agree on. Israel should not – and will not – implement a Dresden-style fire-bombing of Gaza City in response to Qassam and Grad rocket attacks.
So aside from the obvious, we’re wading into murky territory that could be debated forever. Another doctrine of proportionality, though, clearly applies to this war, and it’s found in the Law of Armed Conflict.
The Law of Armed Conflict “arises from a desire among civilized nations to prevent unnecessary suffering and destruction while not impeding the effective waging of war. A part of public international law, LOAC regulates the conduct of armed hostilities. It also aims to protect civilians, prisoners of war, the wounded, sick, and shipwrecked.”
Proportionality, in short and according to the law, “prohibits the use of any kind or degree of force that exceeds that needed to accomplish the military objective.”
In other words, if a surgical strike is all that is needed to take out a Grad rocket launcher, carpet bombing the entire city or even the neighborhood isn’t allowed.
Hamas is still firing rockets; therefore, the IDF is not using more force than necessary to disrupt the firing of rockets. Israel, arguably, is using less force than necessary. And the IDF, unlike Hamas, does what it can to minimize injury to civilians. “Militants often operate against Israel from civilian areas,” the Associated Press reported last week. “Late Saturday, thousands of Gazans received Arabic-language cell-phone messages from the Israeli military, urging them to leave homes where militants might have stashed weapons.” Israeli commanders are even warning individual Hamas leaders that their homes are on the target list so they can vacate the premises in advance.
I think the primary problem with the discussions of proportionality remains the intermingling of two different conceps: Proportionality as it relates to the decision whether to go to war and Proporionality as it relates to how the war is conducted. By blurring the two different issues, Israel's critics are able to cherry-pick their arguments.
I think there is no question that a series of rocket launches from a neighboring country constitutes Bellum iustum.
Once war is decided, its conduct must be proportionate as well. The amount of force, and in particular the threat of civilian casualties, must be no greater than that necessary to achive the war's objectives.
The two concepts are blurred by complaining that the conduct of the war is disporoportionate to the cause of the war. The result is to give superficial sympathy to Israeli civilians subject to rocket attacks, while giving the Israeli government no permission to do anything about it.
Some of these arguments were made in the last Lebanon conflict. Professor Kenneth Anderson also complained about the blurring jus in bello and jus ad bellum. Also, the entirely different issue of retaliatory reprisals:
The example given is the relatively common exchanges of hostilities between India and Pakistan. This is the situation as imagined by Beehner above. As Professor Andersen explains:
[Contined; must have pressed return accidently]
Israel is not engaged in reprisal; it is at war. It's not signaling to Hamas that the rocket attacks or unacceptable and we'd like to go back to a situation in which there were no rocket attacks. That page has turned.
PD Shaw #3 --
You state that the cessation of rocket fire from Gaza into Israel would be an insufficient concession (or "concession") as seen by the Israeli government. Why do you think so; has the government itself presented the war in these terms?
"That page has turned." What do you (or the Israeli government) mean? Hamas desires the destruction of Israel; most Palestinians of Gaza desire the destruction of Israel. They don't show restraint in acting out this wish; their actions are limited by capability, not by intent.
What could Israeli war aims be, other than "stop firing rockets"? Cultural exchanges seem unlikely into the forseeable future...
On the surface, it seems silly and uniquely human to debate the finer points of war. If one accepts 'war' as a state in which the actors perceive themselves in a battle for survival; 'him or me', 'them or us', one might expect there to be NO rules. The concept of rules is a subtlety which arises only if one considers war as a means to preserve certain principles rather than the individuals who ascribe to them. Then the preservation of lives becomes subservient to the preservation of principles; and certain lofty ideas such as 'death before dishonour' manifest themselves. Ultimately, the conundrum becomes how to preserve your ideals without contravening them in the process.
"You state that the cessation of rocket fire from Gaza into Israel would be an insufficient concession (or "concession") as seen by the Israeli government."
If that is true, Olmert is living in a bigger fantasy land than we thought. Best case scenario is a truce where the rocket attacks stop, and that seems unlikely for any length of time.
The mistake Israel is making (again, I might add) is assuming that to Hamas, peace is a preferable state than kinetic war. Hamas cannot maintain its power by governing, they need Israel to come blow up the institutions they can't govern effectively. In other words, Hamas really has nothing to lose by Israeli occupation and much to gain, so why does Israel think Hamas fears occupation?
Olmert seems to have once again been seduced by the air force generals that assure him tens of thousands of terrorists can be divested of hundreds of thousands of rockets and bombs. When that fails the ground pounders have to go in and shift the rubble around. Inevitably some horrific mistake kills a number of civilians and the Israelis are forced to either withdraw or hunker down in a new occupation.
I'm really at a loss for what Olmert thought he would accomplish with this offensive. Even moreso than the Lebanon fiasco. Its ultimately Israel's own fault for holding on to a leader so clearly unqualified (indeed hopeless) to lead a nation in war.
AMAC:
Let me give an example of what I believe is the proper use of the law of reprisal.
In Kashmir, you have Indian and Pakistani troops faced off against each other along the line of control. Occasionally, one side might seek the advantage of higher ground. The other side observes this and figures out that if war broke out, they would get their @sses handed to them. So, the stationary forces fire shots at the enemy. In any other context, this is an act of war, but in reality neither side wants to go to war over this spot. The stationary forces are signaling that the movement is unacceptable and will be challenged, but signaling that a resumption of the ceasefire will occur if you remain in your prior position. As I understand it, the signaling aspect is important and may require verbal warnings as well.
For Israel to have engaged in belligerent reprisal, IMO it would have needed to fire missiles in close proximity in location and time to where the rockets were shot at the outset. It most likely would have needed to give verbal warnings to Hamas that the rocket attacks were unacceptable and invite Hamas to stop them. I don't know that Israel operated under these precepts. Israel seemed to tolerate a certain level of bombing and any threat of escalation does not appear to have been credible. Instead, Israel operated under basic self defense precepts to justify the use of war powers.
There is no obligation to use reprisals prior to war. In fact, the general historic view is that reprisals were rendered illegal under international law under the UN Charter. The early and mid 20th century view was that reprisals did not avoid war, they instigated it. Nations are expected to "signal" their dissatisfactions through the international community. The US air strikes against Libya in 1985 were condemned as illegal reprisals. The US/British air strikes in support of the sanction regime were reprisals, though less problematic as they were UN authorized.
There are also moral problems with an Israeli reprisal. If you thing the opposing country knows that the conduct is unacceptable, then signaling through violence might be seen as wanton. If the rockets are launched from civilian areas, it may be very difficult to engage in a violent response of a limited nature.
The general thrust of my point was that the international law experts are playing games with categories.