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.