January 3, 2009

Gaza and the Law of Armed Conflict

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.

Read the rest in Commentary Magazine.

Posted by Michael J. Totten at January 3, 2009 9:44 AM

I respect Michael's work but nit picking and even discussing this topic is another reflection of the madness we live with. Israel needs to defend itself, not defend defending itself. Hamas and all poisonous, irreconcilable, deadend fanaticism needs to die. As in Iraq, only an arab Awakening will bring children a future worth living.

Worth noting: I'm listening to Michael Medved talk to his brother in Jerusalem about how peaceful Bethlehem was at Christmas---and those who know the area know where Bethlehem is located.

Posted by: Paul S. Author Profile Page at January 3, 2009 2:43 PM

Infectious madness everywhere:

"Revealing Silence at the Gaza-Egypt Border
Why does Hamas victimize its own people? And why doesn't the media call them on it?"
Pajamas Media
January 2, 2009 - by Richard Landes


Posted by: Paul S. Author Profile Page at January 3, 2009 4:31 PM

Victory is the answer.

Post WW2, the west became so rich as to lose sight of what defeat really means.

The Germans and Japanese didn't, of course. That's why they've made it an explicit rule that they compete economically or not at all with their neighbors. The Japanese embraced the thoughts and rules of an American who could have been a giant here but for Old Management and their UAW handlers; embraced them so well that they became more capitalist than any railroad baron ever dreamed of being.

What is the EU, after all, but a Little League system that hands out trophies to everyone who plays? Japan made a run at buying the world right up until the nineties. Then they stopped having babies just about the same time the Italians and Spaniards did.

You defeat your enemies or you are either assimilated or destroyed. There's no "peace process" with a hand holding a bloody knife, and it is rather an insult to any reasonably moral or intelligent person to be told that there is such a thing.

Don't know what the Israeli agenda is here in this latest chapter of the horse opera. If I had to guess it would be that they've decided that corrupt Fatah with an occasional splodey dope is less inconvenient to elected leadership than are rockets raining down in communities. Just a guess, and an idle one at that.

Posted by: TmjUtah Author Profile Page at January 3, 2009 4:55 PM

One thing incidents like the Gaza Operation demonstrate more clearly than anything else is the utter, absolute futility of engaging large swathes of the left ("Israel-haters" for short) in any kind of rational, intellectual, or moral discussion on the subject of Israel. For these people, Israel has been judged, condemned, and thrown into a black pit and they will never ever ever ever concede the slightest point in Israel's favor. They will compromise their own moral and intellectual integrity (assuming they have any) a hundred times over before they will give Israel a break.

These people always whine that critics of Israel are accused of anti-semitism, in order to silence them. I am very critical of Israel, and welcome honest critics with open arms. So long as the criticism is based on the belief that Israel is a country like any other, and Israelis are human beings, for better or worse, who deserve the same as other human beings. The Israel-haters, obviously, don't fall into this category.

I don't believe that most Israel-haters are Jew-haters (to say so is just playing into their hands, and besides, a lot of them are Jews), but I think there are parallels, and both are obviously rooted in bigotry and hatred and a kind of human defect.

Sorry for that long rant. I guess the point is that, unfortunately, perfectly intelligent, well-reasoned discussions, such as that posted here by MJT, are either preaching to the converted, or a complete and utter waste of time.

Posted by: MarkC Author Profile Page at January 3, 2009 10:58 PM

Hamas has mandated for the destruction of Israel. The proportionate response is to destroy Hamas. Once Hamas is no more the Gazians can try to have a better peace, though Fatah doesn't seem any better

Posted by: podx Author Profile Page at January 3, 2009 11:35 PM

From Louis Rene Beres, a professor of poli sci and international law:
International Law is Not a Suicide Pact

http://www.jpost.com /servlet/Satellite?cid=1230733173520&pagename=JPArticle%2FShowFull

Now, I have my own thoughts on this issue.
Proportional: Corresponding, balanced, symmetrical, on a proper scale, consistent, comparable, like, commensurate, equivalent, matching

How to be proportional, satisfy self-righteous world opinion, and yet be effective? I invite your suggestions, but here are some of mine:

Plan A:
For every rocket fired into Israel from Gaza, Israel fires one back – aiming only generally for population centers, not military targets. Hamas uses rat-poisoned or shrapnel-loaded warheads to maximize casualties, so Israel will use explosives with a similar radius/degree of devastation. For every mortar fired, Israel returns a loosely-aimed artillery round.

For every suicide bombing, Israel drops an unannounced aerial bomb, targeted at a comparable Gazan civilian population site. (See also shrapnel warning above.)

If Gilad Shalit and other Israeli POWs have no Red Cross, Amnesty International, HRW or UN contact, then no Hamas-linked prisoners in Israel will have any outside communication, religious ministry, or proper medical care.

When Hamas signs onto and accepts Geneva Conventions and abides by them, Israel will honor them as well.

When Hamas signs a document that Israel has a right to exist as a Jewish State and rescind its stated belief that all Israeli civilians are military targets, Israel will accept Hamas as a legitimate government and resume treating Gazan citizens as civilians.

Plan B: (Aimed specifically to placate international human rights personnel and other supporters of Gaza regarding harm to Gazan civilians.)

For every rocket fired against Israel, Israel will fire a 60-second disabling noise-bomb or a tear gas canister into a UN, NGO, or European or Arab government or business office in Gaza (or somewhere in the world). For every mortar, it will fire a stink bomb or a severe itching powder grenade into these same sites.

For every suicide bombing, Israel will strike UN headquarters with an electro-magnetic pulse that wipes out all computer and electronic equipment. (Assume the USA will tacitly allow this... if not, for every suicide bombing, Israel will require UN and NGO personnel and International Media to be hands-on first-responders, do triage, site clean-up, and assigned 1:1 to assist the families of victims for 30 days.)

Israel will open sea lanes to Gaza and let Egypt do as it wants with that border, but will permanently close all Gaza borders with Israel, to all parties. Israel will build a very big wall. (Maybe ask the Chinese for help; they started that whole wall-to-keep-out-enemies thing and obviously got it right -- big tourist attraction.)

Israel will discontinue all fuel and food delivery to Gaza in 3 months and all electric power links in 12 months. No exceptions. (If you can smuggle in 80 tons of weapons and secretly build 40 miles of bomb-proof tunnels in 18 months, I’m sure you can work wonders with basic infrastructure and handling common humanitarian needs, fellas. Better get busy.)

In keeping with universal Arab policy, anyone with a passport indicating travel to Gaza will be permanently forbidden entry into Israel. Media, UN staff, and politicians will no longer be able to stay in comfort in Israel while assigned to sympathetically cover Gaza.
See also Plan A re: POWs, intergovernmental relations.

Posted by: AZZenny Author Profile Page at January 4, 2009 1:49 PM


I am drooling.

Posted by: leo Author Profile Page at January 4, 2009 2:34 PM

The problem with proportionality is that it does nothing to deter the other party from further attacks. Only with a very disproportionate response will the aggressor, in this case Hamas, ever think twice about attacking. This sort of war never ends. Only when the aggressor knows that they will be attacked with a much greater devastation will they ever think of desisting. You can look to history for the proof time and again e.g. nuclear bombs on Japan.

Posted by: Megan Author Profile Page at January 5, 2009 9:16 AM

Michael - I appreciate all the work you've done on the proportionality argument. While it's so, that Israel needn't defend defending itself, the (lack of) proportionality is the criticism I hear most (in the news, from friends, colleagues, etc.) and your essays do much to elucidate what proponents of proportionality are really saying. I agree, they're not likely to be the folks reading your columns, but... What are you going to do? I nevertheless believe it smartens up the conversation. As always, I am grateful for your work & continue to enjoy watching you grow as a writer (not to mention that I am glad you haven't been swooped up by a major news network who might straight-jacket your work).

Posted by: scottmoshen Author Profile Page at January 5, 2009 11:57 AM

I would like to have the news media call the Palestenian's they have interviewed on all of their lies. I can't help but think they are out of control in this country when it comes to political correctness.

I remember the cheers of Joy that came from Gaza when the twin towers were knocked down in New York. Does no one else remember? It is the Muslims that celebrated this. They have a culture of hate and death. In Gaza they teach the children in Kindegarten that being a suicide bomber is a worthy goal. How sad that they would rather live in hate than try to prosper and have their own lives.

I am to the point I believe maybe there is no such thing as a civilian in their culture. They all want death for Israel but they hide behind Hamas as if some want peace. None want peace, that is why they elected Hama to power.

Arafat had what a billion plus dollars funnelled away and a family living in luxury in Europe. How come he didn't strap on a bomb? Why did he not help his people. Yes the Palestinian people are pawns in the hands of the Muslims throughout the world. If they were to be taken care of with all the money they receive they would be unable to convince the world of their demise.

And since the Jew's, the Muslim's and Christian's claim they all believe the old testament here is one for you.

G-D owns the land and it is for his chosen people.

Leviticus 25:23 (King James Version)

23The land shall not be sold for ever: for the land is mine, for ye are strangers and sojourners with me.

Keep trying to take this away from His chosen people (the Jew's ) and G-D will destroy you.

The tribulation will come.

Posted by: JohnO Author Profile Page at January 5, 2009 3:11 PM

André Glucksmann on Proportionality in Gaza

Posted by: Michael_B Author Profile Page at January 6, 2009 1:52 PM
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Winner, The 2007 Weblog Awards, Best Middle East or Africa Blog

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