Proportionality And Terror, Ctd.

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06 Jan 2009 05:03 pm

Law blogger Kevin Heller considers proportionality as defined by the UN charter:

Proportionality is not measured by comparing the number of Israeli civilians killed by Hamas attacks to the number of Hamas “terrorists” killed by Israeli attacks; it is determined by comparing the number of Palestinian civilians killed by a specific Israeli attack relative to the military advantage gained by that attack. As Article 51(5) of the First Additional Protocol says, an attack is indiscriminate — and thus prohibited by IHL — 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 and direct military advantage anticipated.” Article 8(2)(b)(iv) of the Rome Statute is worded similarly, although it requires the incidental damage be “clearly excessive,” not just “excessive.”

Whether an Israeli attack is disproportionate, therefore, is completely independent of the lethality of Hamas’s attacks. The proportionality analysis is the same if Hamas’s attacks kill one Israeli civilian or 1,000. In either case, IHL obligates Israel to respond only with attacks that, on their own merits, are proportionate.

Noah Pollak takes this to the following conclusion:

This is where Andrew’s critique conspicuously runs aground, and for a very simple reason: Hamas is still firing rockets; ipso facto, Israel is not using excessive force.

Heller helps and makes an important point about the core relationship between means and ends. Noah, I think, goes too far in suggesting that a single Hamas rocket in what would now be self-defense justifies anything further the Israelis want to do. I agree with Ross that seeing no just war distinction between unintended but still unavoidable civilian casualties and the wanton terrorism of Hamas makes just war theory untenable in the modern world.

The just war question here might therefore be better honed in the following way: does the massively one-sided violence of the past 11 days offer a chance for a real peace that could justify the death and trauma we are watching? As Ross and others have pointed out, this is, at this present moment, unknowable. But from a moral perspective, I think I should adjust my take a little and concede that you could make a weak but real case for the morality of the Israeli attack if it really changed the situation into one that made peace possible.

I guess that's my problem. I don't see, frankly, how another ever-more brutal crushing will achieve the goal Israel seeks. The familiar points about who would inherit Gaza from Hamas still operate. But the deeper point, made very well by Bob Kaplan, is that Hamas' real advantage is not military; it's ideological. Sometimes, in these asymmetric cases, clearly excessive military action can strengthen the ideological power of the enemy and actually make peace more, rather than less, distant.

To put it bluntly: dead Palestinian children, we can all agree, do not help Israel, even if you were to ascribe moral responsibility for every single one to Hamas.

And in the regional context, the way in which these deaths are understood and portrayed can ultimately outweigh any short-term advantage Israel may get. That's why, I suspect, the Israelis and the Egyptians are taking this to new heights of violence every day. As the toll grows, the more necessary it is to achieve a more complete military victory in order to compensate for what is shaping up to be a defeat in the global war of ideology. So more violence from Israel and Egypt (all funded in large part by American tax-payers) directed at Hamas is to be expected to make the attack more morally justified. This can become a game of one-upmanship over a pile of corpses if you are not very careful.

So objectively, I think a case for the morality of this assault can be made, and not without reason. It's a stretch, though, and only possible by allowing for the unique circumstances of an apocalyptic, tribal and religious conflict in an era long after just war theory emerged. Subjectively, of course, we cannot know the deepest motives of the Israeli leaders (and we can safely dismiss the subjective moral consciences of Hamas leaders). If the Israeli pols are doing this to win an election, or to demonstrate a "don't fuck with the Jews" bravado, it's clearly unjust. If they're doing it because they honestly think it is the best way to advance peace, their consciences, while troubled, may be clear.

I hope and suspect the latter is paramount (although these are politicians in muddy, bloody terrain). And I pray that peace will be advanced by this horror. But that's a prayer, not a prediction.

(Photo: Israeli mourners comfort each others during the funeral procession of 32-year-old Israeli army Major Dagan Vertman at the Mt. Hertzel Military cemetery in Jerusalem on January 6, 2009. Seven Israeli soldiers have now been killed since the December 27 launch of Operation Cast Lead which aims to halt Hamas rocket attacks from Gaza. Eighty-three have been wounded. By Tali Gibbon/Getty.)

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