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.
It’s also worth looking at the doctrine of distinction, which Israel follows while Hamas does not.
Distinction, according to the Law of Armed Conflict, “means discriminating between lawful combatant targets and noncombatant targets such as civilians, civilian property, POWs, and wounded personnel who are out of combat. The central idea of distinction is to only engage valid military targets. An indiscriminate attack is one that strikes military objectives and civilians or civilian objects without distinction. Distinction requires defenders to separate military objects from civilian objects to the maximum extent feasible. Therefore, it would be inappropriate to locate a hospital or POW camp next to an ammunition factory.”
Hamas violates this doctrine in two ways at once. Its fighters launch Qassam, Katyusha, and Grad rockets into Israeli civilian areas, and they fire those rockets from inside Palestinian civilian areas. Both are prohibited by the Law of Armed Conflict.
The law does not, however, prohibit Israel from striking legitimate military targets in civilian areas. “Although civilians may not be made the object of a direct attack, the LOAC recognizes that a military target need not be spared because its destruction may cause collateral damage that results in the unintended death or injury to civilians or damage to their property.”
Hamas, then, is legally to blame for all, or nearly all, injuries and deaths of both Israelis and Palestinians.
I shouldn’t even need to point out that Hamas is not allowed to target civilians with rockets, but I’ll cite the law anyway. “The LOAC protects civilian populations. Military attacks against cities, towns, or villages not justified by military necessity are forbidden. Attacking noncombatants (generally referred to as civilians) for the sole purpose of terrorizing them is also prohibited.”
Concern for the suffering innocents of Gaza – and all children of all nations are innocent – is well, good, and proper. And whether Israel’s operation in Gaza will turn out to be prudent, wise, and productive is yet to be seen. But either way, and at the end of the day, Israel’s rules of engagement comply with the laws of war forged by civilized nations, while nearly every one of Hamas’s military tactics are war crimes.
Gosh, the latest invasion of Gaza was a failure? Who would have guessed? If only neocons were capable of learning.
1: Huh? Who broke wind?
Meanwhile in SRi Lanka the government is demonstrating that decisive and persistent military action can in fact destroy a terrorist movement. Of course, one would have thought that Operation Defensive SHield which over a period of time put and end to the wave of terror from the West Bank (together with the border fence) had demonstrated that long ago. Of course no one cares about the Tamil tigers, while the feckless and often barbarous palestinians are the darlings of the Western World. Thus Israel is never permitted to see a war to its finish. Hence the lack of a decisive outcome.
William the problem was not the operation, it was that it ended too early
Oh, William, did you not notice that the full spectrum of Israeli society supported the operation?
And what do you recommend- or, more to the point, what would you like to be the approach of your government if Islamic fanatics lived a few miles from you and were firing rockets at your town?
As for those here who don’t Israel the right to defend itself, we can just hope that if Israel cannot, as Shmuel suggests, mount a serious response to the continued attacks at this moment, it will at least not sign onto to any ceasefire that serves to vindicate Hamas’ “resistance” and limit Israel scope for action in the future.
When will the Jews learn? You can’t achieve peace without victory. Half-measures in war guarantee more rockets. Whey Israel tiptoed away from a commitment to total victory, the return of rockets was utterly predictable.
William: I did not realize the “neocons” controlled Israel too. I was under the impression, they were 60s leftists mugged by reality who only controlled the Bush Presidency. Any other conspiracies we should know about?
more rockets from gaza = more lattitude for the new PM…
the question then becomes, if and when israel escalates, what will mitchell, clinton & obama do?
what will they say? what ‘intelligence’ will chas freeman bring before the president and nsc?
one thing arafat was ALWAYS good at was creating a sensie of ambiguity about the destruction he wrought; hamas has little time, tolerance or temperament for ambiguity….
if america condemns israeli response(s), what does escalation mean then?
Good point about Arafat. In a real sense, Israel benefits from Hamas being plain as day about its beliefs. One can only imagine how filled with hope Obama would be if Arafat were alive. He’d see an intrepid, wily veteran fighting against his own extremists and an impatient, arrogant Netanyahu.
Without lifting Bush higher in our esteem than he should, let’s not forget that it was Bush who smelled a rat when he saw Arafat.
6
“William: I did not realize the “neocons” controlled Israel too.” Gord
Show me where I wrote this. Maybe you should learn to read before you try to tackle writing. Obviously, my comment was directed at the neocons who run and read this blog, and who are always in favor of hawkish, self-defeating action. The pattern is sadly familiar now: War is tried, it fails and the lesson you learn is that the aggression wasn’t brutal enough, or was stopped too soon. Conservative policies are tried, they fail and it was never that you were too conservative (the truth), it was that you weren’t conservative enough (the delusion). Sadly, no matter how many lessons life hands you, you are doomed to repeat your failures endlessly, so long as the people let you. It seems America has learned its lesson for now and has banished you from power. Perhaps Israel will wise up soon as well. We’ll see if Obama can further that evolution.
William:
Oh, I get it now. Your switch almost in midsentence from the actions of Israel to the chatter on this blog threw me.
You consider the half-measures Israel took in Lebanon and Gaza to be “war” that “failed.” Well, I certainly agree that it failed in some important ways. But the lessons we draw are not the same. I guess you believe that Israel should go back to…what? Sitting with the likes of Arafat? Because that worked so well for Israel throughout the 90s and early 2000s? I suppose you think Jewish flesh spread across the walls of restaurants and buses is a necessary sacrifice for peace? Or do you think this time there will be no such mayhem? Faith in the Palestinians springs eternal with some. And you think I am delusional?
As I said when the Israeli ceasefire was announced, doing so was absurd. And wasn’t the ceasefire supposed to be called off if the rocket attacks resumed? As to the tiresome criticism that this proves that Israel should not have acted at all, go back and look at the threads during the fighting. I’ll only add that if anything it proves that Israel did not go far enough, not that it should not have acted at all. Nations have a right to defend themselves against attack. And force used coherently has been effective in combating terror, be it in the West Bank or Lebanon or Sri Lanka or Iraq. The failure to follow through properly (or at least to resume operations the moment the attacks restarted) is not a brief against having acted at all, but a reflection of the sorry state of Israel’s leadership. And as with any supposed lesson, if force was not the answer, what then? The critics never demonstrated any viable alternative nor the feasibility of peace with Hamas or its masters in Tehran. Unfortunately peace is difficult to achieve with those who are pledged to your destruction, as happy as the dream maybe.
I get it, protecting your home and family and using physical force against those trying to kill you is “conservative”. And a failed strategy. That must mean trusting assassins to spare your home and family and engaging them with non-violent diplomacy would be a “liberal” or “progressive” strategy that would be successful. The question must be, successful for whom?
The solution to the continuing Hamas rockets raining down on Israel is not so difficult.
The US has promised Gaza $900 million dollars. President Obama need merely declare that with every rocket fired, whether it causes damage or not, that US grant is diminished by $10 million. To make the sting smart even more, that money could be awarded to the village or city into which the rockets fall.
“failed to achieve deterrence.”
Deterrence, with an entity such as Hamas, is hardly achievable, whatever is
done. A mad dog is not deterrable; neither is a jihadist.
The goal ought to be to diminish their ability to attack, not their
willingness to attack. Obviously the IDF operation in Gaza did
reduce the Hamas cadre, its infrastructure, its stock of weapons:
ergo, it was not a failure.
Continued acts of aggression only prove that the operation was not the end
of the endless war; but that, too, was obvious.