31 December 2008

31 December 2008 - Misunderstanding the proportionality doctrine

The Gaza War, like the Lebanon War of 2006, has provoked a controversy about whether Israel's response to Hamas rockets has been "proportional." French president Nicholas Sarkozy condemned Israel's "disproportionate" use of force, and a few journalists and bloggers, such as Michael Totten, have responded with appropriate contempt:

So what do they have in mind? What would a legitimate and "proportionate" response actually look like? Surely they don't believe Israel should scrap its sophisticated weapons systems, build Qassam rockets, and launch those at Gaza instead.

While I sympathize with Totten's point of view, the word "proportional" actually has a meaning in international law, and it is not what either side in this debate seems to think it is. (UPDATE: Totten revisits the proportionality idea in an excellent post here.)

"Proportionality" does not refer to the number of deaths on either side. Rather, it refers to the military objective to be achieved. A "disproportionate" response is one that causes death in substantial excess of what might be necessary to attain a particular (legitimate) military goal. 

So the question is not how the number of Palestinian deaths compares to the number of Israeli deaths, but whether the number of Palestinian deaths is excessive given the legitimate and legal military goals Israel is trying to achieve, namely, to stop rocket attacks against its population.

Let's look at the relevant international law. Israel is not party to the 1977 First Protocol Additional to the Geneva Conventions, but Israel's High Court of Justice has held that certain provisions of that protocol have been incorporated into Israeli law because they are customary international law. The relevant provision here is Article 51, which describes an attack as "indiscriminate" if it 

may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete an direct military advantage anticipated. (emphasis added)

Similarly, the Rome Statute of the International Criminal Court includes a long list of war crimes and violations, which includes intentionally targeting civilians (as Hamas has done and continues to do) and launching an attack in the knowledge that the damage will cause death and destruction 

"which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated" (Article 8(b)(iv); emphasis mine).

So, as Dore Gold points out in the Jerusalem Post, to consider whether Israel's responses to Hamas have been "disproportionate," we have to consider its military goals, how its targets correspond to those goals, and the intent of the military commanders in carrying out the attacks. Sheer numbers are not the primary factor, though they can offer clues to intent. 

Given that the worst casualty estimates put civilian deaths in Gaza at about one-sixth of the total, Israel is obviously not targeting civilians, and its commanders have clearly attempted to minimize civilian casualties. Israel's response hardly  qualifies as disproportionate, even if only a small number Israelis have died. Indeed, given the fact that Hamas continues to fire rockets at Israel, more fighting may be necessary to achieve Israel's legitimate military objectives. 

As long as Israel continues to target combatants, and does so with due regard for civilian lives and infrastructure, it will have international law on its side. Proportionality is not, primarily, a numbers game. It is, firstly, about distinguishing between legitimate military objectives and illegitimate ones. And by that standard, Israel is acting with legitimate and proportionate force.

3 Comments:

At 3:46 PM, OpenID h3li said...

Israel intentionally targeting civilians by bombing Hospital and Mosque. Israeli use the same lie Bush use to attack Iraq who said their attack it because of Weapon of Mass Destruction.

Give prove there is rocket in those hospital and mosque, nothing you find nothing except death civilian children and women, so don't say Israel not intentionally targeting civilians.

This is a crime and must be stop.

 
At 12:10 PM, Anonymous Anonymous said...

Israel isn't attacking Hamas because they think there are weapons of mass destruction in Gaza, but because Hamas is firing thousands of rockets on Israeli cities:

http://www.youtube.com/watch?v=oSQ1YXRYINM&NR=1

You can see the video of the bombings of the mosque along with the very large secondary explosions caused by the weapons stored there by Hamas:

http://www.youtube.com/watch?v=jwP_LusgPAw&feature=related

Finally, a very small proportion of women and children have been killed by Israel's careful targetting of Hamas fighters, who hide cowardly among civilians.

 
At 12:16 AM, Anonymous Anonymous said...

"A very small proportion of women and children have been killed by Israel's careful targetting of Hamas fighters". What rubbish. collective punishment is Israel's modus operandi and again in 2008 its is on display for all to see. In the last 8 years 15 Israeli's have been killed in rocks attacks in contrast with 250 civilian deaths in one day of fighting since Israel's most recent invasion in Dec 2008. Israel is not a democratic state and never has been. Its flagrant contempt for international law and the rights of Palestinians must be condemned. This history of the Arab Israeli conflict demonstrates the moral vacuity of Israel's position. The ruling elite in Israeli with the support of Israeli fundamentalists have made Israel the disgrace of the International community.

 

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