Proportionality And Terror, Ctd.

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.

Proportionality And Terror

Noah Pollak asked me to provide some framework for a discussion of proportionality and just war theory with respect to the Israeli attack on Gaza. In re-reading my Catechism and brushing up on just war theory, I am struck first of all by how alien the context seems for the current war. The asymmetric nature of the threat and the emergence of failed states run by mafioso religious fanatics makes everything more complicated. You could argue that this makes just war theory more important, rather than less, since we are in danger of having the rules of war dictated by barbarians. Or you could argue, along with the neocons, that Jihadist barbarism demands a response in kind. I favor the first view. And it is nonetheless fair to say, I think, that Israel’s actions in Gaza fail every traditional just war justification.