The end of 'proportionality'
I have argued many times that Israel's response to attacks by Hezbullah and Hamas were either not 'disproportionate' or were 'disproportionate' of necessity. I made similar arguments most recently here, here and here.Now, through a scholarly (and lengthy) article in the US Army War College Journal, I discover that neither Israel, nor the United States is a signatory to the 1977 protocol to the Geneva Conventions (although the article argues that both abide by it) that bans the 'disproportionate' use of force. Further, as you read the article, you will discover that most of the accusations against Israel and the United States are based upon a 1987 Red Cross interpretation of the 1977 protocol, which certainly does not bind Israel or the United States. The full article is here (pdf link) and I recommend strongly that you read the whole thing.
Here is a brief summary:
The theory of proportionality is ambiguous, lacks useful precedent, and as a practical matter, is nearly impossible to interpret and enforce. Effective military organizations as a matter of course limit their use of force under the doctrine of economy of force, meaning that a disproportionate attack on an enemy is likely to be as harmful to the attacker as the victim. The international community and media have a responsibility to use terminology and principles correctly, not just because they seem to be convenient. In the case of declaring military actions disproportionate, this has simply not been the case.Read the whole thing.
Accusations of "disproportion," like those against the IDF, will almost certainly be applied to American forces when domestic and international opposition to US actions can find no other complaint. Yet it is apparent that proportionality is not a useful yardstick for determining appropriate levels of force. The principle of proportionality is so vague and difficult to apply with any consistency, and so widely misunderstood, that the US military should discard it. Instead, American authorities should simply take the position that US doctrine proscribes use of force that is indiscriminate, wasteful, excessive, or not necessary to achieving military objectives. America's armed forces should openly acknowledge that they do not abide by the principle of proportionality because it is so problematic.
Taking that position would not be a violation of existing law, as neither the Hague Conventions nor the 1949 Geneva Conventions specifically refer to "proportionality." The United States is not a signatory to the 1977 Geneva Protocols, which do use the term (at least in the commentary). With respect to customary international law or traditional just war theory, simply declining to define American military action as "proportionate" would not violate the spirit of law or theory. Because the prescriptions of each are not specific in a statutory sense, the recommended doctrinal stance should suffice. Proportionality as a law of war concept for good reason has had limited applicability and usefulness during the last century. It deserves to be disposed of entirely.
posted by Carl in Jerusalem @ 9:37 PM
6 Comments:
The test can neither be applied objectively or consistently. There is no international law or rule that requires the attacker to constrain his use of force. It can be argued the Red Cross' interpretation of "proportionality" in fact would lead to longer wars, more civilian casualties and more through destruction of enemy infrastructure to achieve victory. Wars then would be both bloodier and more expensive. The lesson is there no way to "humanize" war. Its about killing people and breaking things.
A politically correct test won't change the reality of war.
yeah, right, blowing up Jews in Yerushalayim or Nethania was very proportionate
It's not such a bad test. One just has to ask: "Proportional to what?"
The answer is: Proportional to a legitimate military objective.
When Israel responds to a barrage of rockets from Gaza, is it just responding to a barrage of rockets? Or is it responding to a phenomenon which is threatening to make a large portion of its territory unlivable?
If it's the latter, then the military objective is going to be to produce a cessation of the rockets.
If it's the former, then the military objective is going to be to respond in kind.
If you think Israel should be doing the former only because only the former is "proportional", then you don't understand the doctrine of proportionality.
I say that for honesty's sake as a critic of the recent Israeli actions in Gaza. The idea that Israel's response is "disproportionate" because a proportional response means tit for tat is silly.
I say that for honesty's sake as a critic of the recent Israeli actions in Gaza
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the Gaza - and earlier the Lebanon - offensive was typical amateuristic and adventuristic Kadima activism mainly for PR reasons. Otherwise the Hamas leadership and Gaza center would have been captured.
Al-Beep this morning has another uncorroborated report of allegations of misdeeds by IDF soldiers during Operation Cast Lead. What is striking is the absence of claims of abuse, torture, rape, murder and looting. In war this sort of things happen. This is not the case with the IDF. Not one soldier is accused of atrocities or behaving inhumanely towards the enemy. Those who resent Israel to this day cannot dig up an incident akin to My Lai. In fact, Israel behaved quite restrained in the face of enemy aggression but is given no credit for it.
Hmmm.
I guess I'm too much of a mathematician but to me 2:1 is a proportion as is 10:1 or 100:1. So I'm confused why anyone would think that proportional force means 1:1.
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