Further Thoughts on Proportionality

I find Kevin’s post to be quite illuminating as it focuses proportionality on the question on whether Israel’s conduct is clearly excessive in relation to the concrete and direct overall military advantage anticipated. Which raises the question of whether we should view this conflict as narrowly focused or part of a broader struggle. The question of proportionality cannot be considered without considering that question as well.

As faithful readers well know, I have long considered Mahmoud Ahmadinejad as deadly serious in his intent on destroying Israel. See here. It is not political rhetoric. And to the extent we view Hezbollah as an agent of Iran, we must consider the possibility that Israel’s response is taken in light of Hezbollah’s agency action on behalf of the madman Mahmoud Ahmadinejad. In that vein, here is how Andrew Sullivan put it in a post today:

I don’t think there can be much doubt that Ahmadinejad’s eschatology demands a second Holocaust for the Jews, and that is impossible to understand Hezbollah without seeing them as an instrument for this Persian Hitler to achieve his aims. That’s why, despite the horrifying toll on Lebanon’s infrastructure and civilians, the Israeli response does not seem to me to be disproportionate to the existential threat it faces – and would face even more starkly if Hezbollah became the emboldened tip of the Iranian spear.

So should we not consider proportionality in light of the overall threat that Hezbollah and Iran pose to the future of Israel? What is proportional when your enemy has openly and quite seriously expressed their intent to wipe you off the map?

An even more controversial way to think about it is how this current struggle may allow Israel to get around the problem of a preemptive attack on Iran. It is difficult as a pure matter of international law to justify an Israeli preemptive strike out of the blue on Iranian nuclear facilities. They may wish to do that, but they know it likely would be viewed by the international community as illegal. But the current response by Israel to Hezbollah’s provocation refocuses the legal debate. International lawyers now are debating proportionality instead of preemptive self-defense. Even if this escalates to a broader struggle between Israel and Iran, this may be a more tenable legal position for Israel to take. Would they not prefer a debate about a defensive over-reaction than an offensive preemptive strike? I have no idea if Israel is using the current struggle as a path to draw Iran in further, which in turn might open an opportunity to then justify a strike on Iranian nuclear facilities. But we should not ignore that possibility. If Iran is not directly drawn into the conflict, then Israel may be able to further secure the northern border from future attacks from Hezbollah. If Iran is drawn into the conflict more directly, then Israel may be able to target Iranian nuclear facilities at a time when Iran is more vulnerable. Depending on unfolding events, this may allow Israel to destroy Iranian nuclear facilities in a way that is permissible under international law. Israel may be picking its legal poison: opting for a potentially disproportionate response that paves the way to destroying Iran’s nuclear facilities versus a preemptive strike on Iran that would be widely considered illegal.