Dershowitz on Israel and Proportionality

by Kevin Jon Heller

Alan Dershowitz published an editorial yesterday in the Wall Street Journal that argues Israel’s attacks on Hamas in Gaza are “perfectly proportionate.”  I have no desire to argue the substance of that point, in part because views on Israel and Palestine are largely impervious to facts or argument (on both sides), but largely because the concept of proportionality is so amorphous and ill-defined as to be essentially useless. (I have explained here, for example, why it is very unlikely that the ICC will ever convict a military commander of the war crime of launching a disproportionate attack.)  That said, I think it is important to address some of Dershowitz’s basic misconceptions concerning the concept of proportionality in international humanitarian law and international criminal law.  If we cannot agree on the framework for analyzing proportionality, it will be impossible to even begin to have a productive conversation about the analysis itself.

Israel’s actions in Gaza are justified under international law, and Israel should be commended for its self-defense against terrorism. Article 51 of the United Nations Charter reserves to every nation the right to engage in self-defense against armed attacks. The only limitation international law places on a democracy is that its actions must satisfy the principle of proportionality.

As Marko Milanovic explains today at EJIL: Talk!,”[t]his is simply not self-defense within the meaning of Article 51 of the UN Charter, as that concept of self-defense is an exception to the general prohibition on the use of force, that operates between states only and exclusively and is enshrined in Article 2(4) of the Charter. That prohibition was not triggered by Israel’s action, as Gaza is not a state, nor a part of any state, but is a part of the sui generis mandate territory of Palestine.”

It is also worth noting that jus in bello proportionality binds any party to an armed conflict, not just “a democracy.”

The claim that Israel has violated the principle of proportionality — by killing more Hamas terrorists than the number of Israeli civilians killed by Hamas rockets — is absurd.

That claim is indeed true — but it’s nothing more than a strawman. 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.

The fact that two wrongs never make a right (putting aside the difficult and irrelevant issue of belligerent reprisals) is, of course, one of the aspects of IHL that laypersons find the most baffling.  Shouldn’t Hamas’s evident willingness to commit war crimes be taken into account when Israel is accused of committing war crimes in retaliation?  The answer is no, for one simple reason: innocent civilians deserve to be protected from (unjustifiable) harm regardless of the criminal behavior of their governments.  They cannot be made expendable pawns in a larger geopolitical chess game.  That is why Hamas’s direct attacks on Israeli civilians are war crimes, and that is why disproportionate attacks on Palestinian combatants are war crimes.

First, there is no legal equivalence between the deliberate killing of innocent civilians and the deliberate killings of Hamas combatants. Under the laws of war, any number of combatants can be killed to prevent the killing of even one innocent civilian.

Again true — but again a strawman.  Under the laws of war, “any number of combatants can be killed” as long as the attacks that kill them do not cause excessive (or clearly excessive) civilian damage.

Second, proportionality is not measured by the number of civilians actually killed, but rather by the risk posed. This is illustrated by what happened on Tuesday, when a Hamas rocket hit a kindergarten in Beer Sheva, though no students were there at the time. Under international law, Israel is not required to allow Hamas to play Russian roulette with its children’s lives.

This is simply incorrect.  As noted above, the damage to Israeli civilians and civilian objects caused by Hamas’s attacks is irrelevant to whether Israeli attacks in retaliation are proportionate.

That said, there is an important kernel of truth in Dershowitz’s comment.  Those who criticize Israel’s attacks often point out that Hamas’s attacks have killed a relatively small number of Israeli civilians.  That may be true — but it is irrelevant.  First, as Dershowitz notes, an attack does not have to kill — or even injure — civilians to be a war crime.  Intentionally directing attacks against civilians objects is a war crime.  Attacking an undefended town is a war crime.  Intentionally directing attacks against buildings dedicated to religion, education, art, or science is a war crime.

Second, just as the number of Hamas’s attacks does not make Israel’s attacks more likely to be proportionate, the relative “harmlessness” of Hamas’s attacks does not make Israel’s attacks more likely to be disproportionate.  Again, the issues are unrelated.

Until the world recognizes that Hamas is committing three war crimes — targeting Israeli civilians, using Palestinian civilians as human shields, and seeking the destruction of a member state of the United Nations — and that Israel is acting in self-defense and out of military necessity, the conflict will continue.

There is, of course, no war crime of “seeking the destruction of a member state of the United Nations.”  Dershowitz again seems to be confusing the distinction between jus ad bellum and jus in bello.  Moreover, the crime of aggression — either in its customary form or in the form currently being contemplated by the ICC — cannot be committed by non-state actors.

Finally, let me reiterate: although I am deeply troubled by Israel’s response to Hamas’s indefensible attacks, I do not know enough to conclude that Israel’s attacks are criminal. I agree with Marko: “talking about these matters without knowing all the facts is truly dangerous. Indeed, it only tends to expose the speaker’s political and ideological biases.”  I would simply add that talking about the facts without understanding the law is equally problematic, as Dershowitz’s editorial demonstrates.

http://opiniojuris.org/2009/01/03/dershowitz-on-israel-and-proportionality/

76 Responses

  1. Let’s clarify a few things.

    First, let’s look at this statement of yours: “I do not know enough to conclude that Israel’s attacks are criminal.”  Not to nit-pick, but don’t you mean something along the lines of “whether a particular attack is criminal”?

    Second, you said, “Intentionally directing attacks against buildings dedicated to religion, education, art, or science is a war crime.”  But, if such buildings are used by belligerents to create or store weaponry, then those “protected placed” become legitimate targets.  See for example the allegations regarding Gaza University.

    Third, I can’t remember if this falls under proportionality or another principle, but doesn’t the fact that Hamas places (and fires) its weapons in (and from) civilian homes and buildings affect the analysis?  I understand that it is unlawful to purposefully put your own civilians in harms way to try to shield an otherwise legitimate target.  Shouldn’t this behavior, however, affect the proportionality analysis also?  If it doesn’t, does not this otherwise illegal behavior (human shielding lite) prevent the lawful use of force by the other side?  To clarify, I understand that even in this situation Israel should still try to minimize civilian causalities.  But, let’s say, that every Hamas rocket site is protected by twenty civilians, which in the ordinary course would be disproportionate if attacked (for purposes of this hypo).  But if many or most of the rocket sites are protected like this, is Israel really forced to not respond?  Surely that can’t be right—that illegal behavior by one side prevents the other side from defending itself lawfully.

    Fourth, if we are going to talk about proportionality surely the overall numbers and state practice should come into this.  In the Gaza conflict, the fighter to civilian death ration is around 5 to 1 and Israel has hit hundreds of targets with only some 60-70 civilian deaths.  Granted, this doesn’t tell us the results of a particular attack.  Nevertheless, the US military has long permitted 10 civilians deaths or more as proportionate in air strikes.  Now, I understand that the proportionality of an attack is based on what the anticipated military advantage is for the attack.  That said, I don’t think anyone can argue that a loss of only 60-70 civilians in exchange for hundreds of dead fighters, many destroyed rockets, destroyed enemy military infrastructure and the like is any way disproportionate on the whole.  Perhaps, the diligent can find an attack or two that was disproportionate.  But these attacks overall cannot be construed as disproportionate–almost by definition when looking at what military targets and personnel are destroyed/killed compared to the rather minimal civilian casualties.
    Your Fan
     

  2. I agree with almost everything that Professor Heller wrote.  However, I do not think that the ‘proportionality concept “is so amorphous and ill-defined as to be essentially useless” (to use his words). As I argued in my 2001 Ariel F. Sallows Lecture, when one construes the Proportionality Rule in conformity with the Superfluous Injury and Unnecessary Suffering Rule and the international human rights law govering the rights to life and humane treatment (as required by the Vienna Convention on the Law of Treaties, the Martens Clause and its restatements, the Namibia Advisory Opinion, the ICC Statute, and the Inter-American Court of Human Rights), one can determine whether the use of force is lawful under international law. Indeed, the Inter-American Commission on Human Rights and the European Court of Human Rights already has been using a proportionality analysis for determining whether the use of force violates international law in both international and non-international conflicts.

  3. HLS,

    1.  Yes, I should have written “whether a particular attack…”

    2.  Yes again.  I was just speaking in shorthand — but the war crimes I mention all permit attacks on civilian objects that are military objectives.

    3. Others can correct me if I’m wrong, but I don’t think the use of human shields affects the proportionality analysis at all, unless the civilians are voluntary human shields, in which case some experts consider them to be directly participating in the hostilities and thus lawful targets.  That position seems right to me.  Involuntary human shields, by contrast, are clearly civilians and thus protected from disproportionate attack regardless of the bad faith of the military forces that use them.  That may seem unfair, for the reasons you mention, and some scholars believe that the proportionality calculus should be relaxed in such situations.  But I disagree, because — again — the involuntary human shields should not be punished for the bad faith of the military forces that use them.  Moreover, their use does not prevent an attack, although it may require the side lawfully defending itself to change its tactics in order to minimize collateral damage.  (A ground attack, for example, instead of an aerial bombardment.) For a good discussion of these issues, see here.

    4.  Reasonable people can disagree — which is why the proportionality calculus is very deferential to military commanders.  (In the case of the Rome Statute, so deferential that the war crime is almost impossible to commit.)  Two comments, though: I don’t think anyone should be looking to the US as a guide to what amount of collateral damage is proportionate; and from what I’ve read, 60 or 70 civilian dead is a very conservative estimate.

  4. Will there ever be a post that goes beyond the proportionality question or the question of the Israeli right to self-defense? If so, we might want to discuss, in the framework of international law and politics, the following issues neatly summarized by Dallas Darling in a piece on Middle East Online:

    [D]eep down in our collective conscience and past, we know it’s more than just about Hamas’ rockets. It is about Israel becoming a state after the Second World War and the displacement of hundreds of thousands of Palestinians into makeshift UN refugee camps. It is about years of Palestinians living in humiliation and experiencing five major Israeli-Arab Wars. It’s about the numerous Palestinian Uprisings, or Intifadas, and how they have tried to “shake-off” Israeli occupations. It is about a generational Nakba, or Palestinian catastrophe, in which hundreds of thousands of Palestinians for decades have experienced dispossession.

    The Gaza crisis is about a punitive and fatal economic blockade initiated and maintained by Israeli Defense Forces. It is about checkpoints and how innocent Palestinian civilians have been detained, imprisoned, and accidentally shot and killed. It is also about how the US sells and equips Israel with over $4 billion worth of weapons each year. As Gazans are dying, Israeli F-16’s continue to drop 1000 pound bunker-busting bombs and fire US made missiles. Apache attack helicopters continue their deadly swarm, some even destroying mosques. It is about the protection of illegal Jewish settlements and the control of Gazan roads, airspace, waterways, and sea lanes.

    It is about cutting off electricity and water supplies to the Gaza Strip. It is about Israeli politicians not allowing medical supplies into Gaza to treat the wounded. It’s about the US imposing a “divide and conquer” strategy upon the Palestinians by funding certain groups and internally interfering. It is about how for years Hamas has provided food and basic services and was democratically elected in Gaza to pursue the dreams and hopes of statehood. But Hamas was not a democratic government that Washington recognized or was pleased with. Therefore, it IS about regime change. US style Global Democratic Totalitarianism decides which democracies exist and which democracies are destroyed.

    It’s about how Israel has banned reporters from covering the atrocities being committed in Gaza. It is about how the Israeli Navy (in international waters) attacked, rammed and prevented the “Dignity” from reaching Gaza with badly needed humanitarian aid. It is about Israeli elections and political maneuvering, much like that of the US It is about politicians who depend on wars and military interventions to bolster their public opinion ratings and increase their support among the far right. It’s also about the US rejecting an attempt by the Arab League to exercise its influence in the U.N and push through an immediate ceasefire. It’s about how the US and Israel, for years, has been given disproportionate power in the UN to fight their disproportional wars.

  5. You state that “[you] don’t think anyone should be looking to the US as a guide to what amount of collateral damage is proportionate.”

    This sentiment is precisely what is so irritating about international law and international law scholars.  If state practice is relevant for anything, then it is relevant for the proportionality analysis, largely due to the great vagueness in what is “proportional.” 

    Yet, scholars only like to look to state practice when it accords with their “writings, and learned treatises.”  When state practice doesn’t accord, then it is discarded, ignored, or trumpted as an example of what is illegal.  I dare say most, if not all, of state practice would evidence that Israel’s targetting decisions are (for the vast majority) legal.  But, that isn’t the conclusion that IHL’s scholars want, so they just make up their own, cite to each other a bunch over a number of years, and ta-da we have a new principle or mandatory interpretation of international law.

  6. Response…Thanks to Patrick S. O’Donnell for posting Dallas Darling’s commentary. One of the difficulties of engaging in discussion on this topic is similar to difficulties involved in the dispute over Kosovo: parties to such conflicts have valid reasons to believe that homogeneity – however achieved – is the necessary but nt sufficient condition for safety. Experience, transmitted through narratives, of oppression and domination by “Others” leads to support for forced eviction of “Others” if not “ethnic cleansing”. It is difficult for cosmopolitan intellectuals who possess means of exit to appreciate how such beliefs make debate problematic.

    That said, acknowledging historical reality, as in Darling’s comment, is a necessary place to begin. A second condition for movement beyond stasis is to help parties deal with real, present day fears, without seeking solace in illusory claims about prior ownership of land from pre-modern times.

    Well done.

  7. HLS,

    Your only example of state practice was the US approach; I criticized that approach.  And then you accuse me of being selective and ends-driven.  Pot, meet kettle…

  8. Patrick O’Donnell’s selective outrage is curious (though unfortunately all too common). 

    Egypt isn’t providing supplies, electricity, or water (in significant amounts) to Gaza, despite an extensive border with Gaza.  Yet, no outrage against Egypt’s apparent satisfaction to let the Gazans(?) suffer.  Oh wait, that’s right, Egypt isn’t Israel, so why bothering condemning them. 

    Many people often cite the Israeli-Palestinian problem as the key to the Middle East.  Yet, Patrick and all too many only see one problem — Israel.

  9. Kevin,

    I cited the US because it provides by far the biggest example of state practice.  If you want to start citing Liechtenstein, then go ahead.

    Past that we have, Israel, Pakistan, various countries in Africa, and the like.  If we go to history, say WW2, the proportionality analysis titled much further against civilians. 

    So once again, state practice currently, by most of the actors, and probably by all actors in the past strongly point in one direction.  And yet, you probabably don’t think we should be looking there for evidence of state practice.   What instead, why the “learned opinions and treatises” of course.

  10. oops, didn’t finish my edits in time on the previous post.

    Kevin,

    I cited the US because it provides by far the biggest example of state practice. If you want to start citing Liechtenstein, then go ahead.

    Past that we have, Israel, Germany, Britian, Canada, Pakistan, various countries in Africa, and the like. Britian largely follows our targetting methods, when they aren’t hunkered down in Basra refusing to fight. Germany is difficult to categorize because they largely don’t believe in using force, unless attacked, which doesn’t really help our analysis. I’m not familiar enough with Canada. The others actors are known well-enough. If we go to history, say Kosovo, Desert Storm, Vietnam, Korea, WW2, etc the conclusions from state practice are even more at odds.

    So once again, state practice currently, by most of the actors, and probably by all actors in the past strongly point in one direction. And yet, you probabably don’t think we should be looking there for evidence of state practice. What instead, why the “learned opinions and treatises” of course.

    Eternally your fan.

  11. HLS,

    Putting aside your petty sarcastic digs at the British and at me, perhaps you can explain why state practice is more relevant to determining proportionality than opinio juris.  Most of the world has consistently criticized Israel’s attacks in Gaza, Lebanon, etc. and many of the US’s attacks in Iraq and Afghanistan as disproportionate.  Why isn’t that equally relevant to determining what level of incidental civilian damage is unacceptable?

  12. The depth and breadth of my outrage is hardly captured in a comment to a blog post. Nor do the problems that concern me add up to one. Nor did I state or imply that a “solution” to the Israeli/Palestinian conflict is some magical solvent to dissolve the myriad difficulties faced by the regimes and peoples living in the Middle East.

  13. And it is Alan Dershowitz.

    You’re going to be a busy man if you spend your time trying to clear up some of his “basic misconceptions.”

    That said, thanks for the post. Always enjoy reading them.

  14. Thanks, LHD.  Why we bother with the VC comment threads, I’ll never know.  For every one sane person — left or right — there are 10 Bruce_M’s…

  15. Thank you, Kevin, for a quite informative analysis and clarification of the legal issues.  Bear in mind, though, that many of the legal concepts have moral analogues, and often those reacting to the events in Gaza are making moral, not legal, judgments, though they often conflate them.  It is hard to imagine a conception of morality in which the Israeli actions are “proportional,” and I suspect that is what most civilized observers (I do not, of course, include Dershowitz here) are really thinking.  This article by Robert Fisk is instructive on the point:  http://www.commondreams.org/view/2008/12/29-9

  16. Brian’s point is one reason why I, perhaps feebly or not too clearly, argued that we should consider revising our legal conceptions of proportionality in light of our ethical intuitions in my comment to Dapo Akande’s post at EJIL Talk!:

    I wonder if what we have here is the international legal equivalent to Nero playing his lyre while Rome burns (whether the tale is true or not we’ll set aside). By this I simply mean if the requirements for a determination of proportionality are this difficult and, apparently, convoluted, perhaps we need to seriously entertain revising the elements for same in a way that is far closer to our ethical intuitions, at least those well captured in your statement that “No doubt, human rights groups and others will accuse Israel of acting disproprotionately under international humanitarian law (IHL).” This apparent need for revision is reinforced by the fact that, as you also state, that “It is well known that the proportionality calculation is one which is not easy to make in practice nor is it easy to explain in theory.” Of course the history of this conflict assures us that the successive Israeli governments routinely evidence little or no concern for proportionality of any sort, legal or not. To conclude otherwise reveals an appalling ignornance of the history and politics of the region going back to the Zionist struggle for the establishment of the state of Israel. As to the bracketed remark: “I have found it difficult to find precise numbers of Israelis killed or injured by the rockets prior to the Israeli air raids,” we might consider the following from Juan Cole at his absolutely essential blog, Informed Comment (ignoring if need be, his determination of the precise number of ‘innocent’ victims and his conclusion that this is a ‘war crime’):

    “Israel blames Hamas for primitive homemade rocket attacks on the nearby Israeli city of Sederot. In 2001-2008, these rockets killed about 15 Israelis and injured 433, and they have damaged property. In the same period, Gazan mortar attacks on Israel have killed 8 Israelis.

    Since the Second Intifada broke out in 2000, Israelis have killed nearly 5000 Palestinians, nearly a thousand of them minors. Since fall of 2007, Israel has kept the 1.5 million Gazans under a blockade, interdicting food, fuel and medical supplies to one degree or another. Wreaking collective punishment on civilian populations such as hospital patients denied needed electricity is a crime of war.

    The Israelis on Saturday killed 5% of all the Palestinians they have killed since the beginning of 2001! 230 people were slaughtered in a day, over 70 of them innocent civilians. In contrast, from the ceasefire Hamas announced in June, 2008 until Saturday, no Israelis had been killed by Hamas. The infliction of this sort of death toll is known in the law of war as a disproportionate response, and it is a war crime.”

    Prima facie evidence of “disproportionality?” I hope so, but if not, the international legal criteria are woefully inadequate, at the very least on ethical grounds.

    And, as to the relation between legal and other facts and our moral judgments, I offered up the following comment to Marko Milanovic’s subsequent post on the subject:

    I suppose all of us should thank God (so to speak) that we are not Palestinians living in Gaza right now, as our individual and collective welfare and well-being, indeed our very lives, may depend on the ability of some in the international legal community to belatedly identify “the facts” to their satisfaction (Professor Falk identified some facts, but apparently his are not of sufficient legal worth). Of course if I’m an Israeli, I can be confident that my country’s ongoing and unremitting capacity and ability to establish the all-important “facts on the ground” in collaboration with the concrete support and blessings of the most powerful country on earth (and some in the international legal community), will assure me that legal niceties will not effectively interfere with either the peculiar balance of power in this particular and glaring example of asymmetrical political and legal conflict, or my comparative safety and security and exercise of political and legal rights.

    Obsession with the proper determination of “the facts” will inevitably arise when it comes to assessing the legality of the state of Israel’s exercise of military power and putative “self-defense,” but invariably, alas, the facts are far too pellucid or easily ascertained when it comes to the question of Palestinian self-determination and self-defense, the facts of Palestinian welfare, well-being, and basic human rights. This selective concern with THESE facts rather than THOSE facts, is all too revealing of our theories, values, commitments and so forth. THAT is at least one rather disturbing fact that should provoke us to re-examine our claim to the high ground of distance and objectivity. While we need to retain the distinction between facts and values, this discussion serves to remind us the facts and values are frequently entangled, sometimes to the detriment of both, and that objectivity belongs to the realm of values as much as it does to the realm of facts (we can have, in other words, ‘objectivity without [discrete, tangible, positivist] objects’). Objectivity, in other words, does not solely adhere to a painstaking description of or a pronounced concern with, the facts, as our claims to rationality, reasonability, warrant, justice, truth, and so on can be equally objective and reflective of critical “distance.” Avowed concern with “the facts” possesses no monopoly on “distance” and “objectivity” (which is not to be dismissive of these selfsame facts or the endeavor to be objective).

    Our decision to highlight and discuss certain legal facts over and above other legal facts as well as the relevant historical and political facts, is often fraught with thinly disguised ethical assessments and moral judgments.

  17. Herein the phoniness of international law.  Humble Law Student has raised several significant questions with Heller’s analysis, including whether it matters under international law, as it surely does, if Hamas is using human shields in such a way as to ensure that Israel’s actions in self-defense will wind up killing civlians.  The answer: dead silence.  Heller, and the like-minded, are all just like O’Donnell.  They think Israel shouldn’t exist, so that anything that Israel does to defend itself is illegitimate. That position at least has the advantage of being forthright, if stupid.  Hiding behind international law when you are really just anti-Israel is both stupid and dishonest.

  18. Or, I should have said, the phoniness of how many academic (mis)use international law.

    And I shouldn’t have closed without giving Leiter the challenge that no one yet has been able to answer: if a state is facing rocket attacks launched indiscriminately at its civilian population by the governing authority of a neighboring territory, what would you consider a “proportionate” military response, morally, legally, or both?

  19. If I may venture to offer a response to Prof. Bernstein’s question on human shields:

    Art. 28 of the Fourth Geneva Convention provides that

    “The presence of a protected person may not be used to render certain points or areas immune from military operations.”

    Art. 51(7) of Additional Protocol I further provides that

    “The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations.”

    To that, Art. 51(8) AP I adds that

    “Any violation of these prohibitions shall not release the Parties to the conflict from their legal obligations with respect to the civilian population and civilians, including the obligation to take the precautionary measures provided for in Article 57.”

    There are two basic factual scenarios in which these provisions might apply. (Incidentally, Israel is not a party to AP I, nor is (in my view) the present conflict international, but is rather non-international in character. The provisions quoted above are however generally accepted to reflect customary law applicable in both kinds of conflicts – I will provide authorities if necessary).

    First, it is possible for the civilian population of an area to willingly acts as human shields in order to protect a military target. Second, it is possible for combatants to coerce or force civilians to act as human shields.

    In regard of the first scenario, willful engagement as human shields by groups of civilians could arguably be considered as direct participation in hostilities on their part, which would accordingly remove their immunity from targeting. (cf. Art. 51(3) AP I). The proportionality principle would thus not apply at all.

    If such actions were not considered as direct participation, and the two scenarios were legally identical, the proportionality principle would apply, as is indeed evident from Art. 51(8) AP I. However, the proportionality calculus (imperfect as it may be) would invariably have to take into account the fact that civilians were used as human shields precisely in order to immunize military targets from attacks. Nonetheless, it would still be excessive or disproportionate to kill, say, a thousand civilians in order to kill a single sniper hidden among them.

    Regardless, combatants utilizing human shields would be guilty of war crimes, certainly in international armed conflicts (see Art. 8(b)(xxiii) of the Rome Statute of the ICC), and probably also in non-international armed conflicts.

    (on all of this, see generally Yoram Dinstein,The Conduct of Hostilities under the Law of International Armed Conflict, CUP 2004, at 129-131)

    With all due respect to Prof. Bernstein, I don’t think that Kevin Heller can honestly be accused of misusing international law for his own ideological ends. The response he gave to the commenter above on the matter of human shields and the continuing application of the proportionality principle was basically correct.

  20. I am a bit reluctant to engage David Bernstein on this subject, given his track record, but I’ll make two brief comments:

    First, I invite David to explain the conception of morality according to which the Israeli actions in Gaza are proportional to the harm inflicted by Hamas rockets.   Does David think Palestinians are human beings, whose life is of equal value with that of Israelis or not?  I am curious.

    Second, in response to the ‘challenge’ with which David seems so impressed, let us start by quoting Robert Fisk from the article, above:

    “We hear the usual Israeli line. General Yaakov Amidror, the former head of the Israeli army’s “research and assessment division” announced that ‘no country in the world would allow its citizens to be made the target of rocket attacks without taking vigorous steps to defend them’. Quite so. But when the IRA were firing mortars over the border into Northern Ireland, when their guerrillas were crossing from the Republic to attack police stations and Protestants, did Britain unleash the RAF on the Irish Republic? Did the RAF bomb churches and tankers and police stations and zap 300 civilians to teach the Irish a lesson? No, it did not. Because the world would have seen it as criminal behaviour. We didn’t want to lower ourselves to the IRA’s level.”

    What did the British do?  They utilized police tactics, they infiltrated the IRA, and they negotiated to reach a political settlement.  Hamas, as Professor O’Donnell has noted here and elsewhere, has a range of legitimate grievances, over which the Israelis could negotiate.  The British stragtegy with the IRA eventually worked.  The bloodbath strategy favored by Israel, in which each Israeli life is worth about 300 Palestinian lives, seems less strategically sound, even putting aside its morality.

  21. I’m with Kevin on the response to Professor Bernstein regarding the right to existence of the state of Israel, something all reasonable parties in the discussion take for granted. In fact, I’m inclined to see the virtues of a state of Israel that includes both the West Bank and Gaza Strip rather than a “two-state solution.” I’ve responded to ridiculous claims and comments on par with Professor Bernstein’s at my post at Ratio Juris: Israeli Bombardment of Gaza, etc. 

  22. Patrick,

    Just a brief response to you if I may. I agree entirely that the legal focus on the whole proportionality business takes away from the larger picture of the Israeli-Palestinian conflict, and of the Gaza situation in particular. I also agree with you that Israel’s policy of siege towards Gaza has greatly contributed to the present conflict. Where I must part ways with you is in your critique of international law’s failure to follow (your own) moral intuitions. The law can only do so much. It of course cannot provide a solution to the Israeli-Palestinian conflict. It can only attempt to manage some of its aspects, through (at times vague and abstract) rules that apply in all conflicts, and that are agreed upon beforehand. Once a conflict starts, it is generally impossible to find any agreement on what is moral, just or legitimate.

    In that regard, international law does most certainly care about the Palestinians’ right to self-determination and their human rights generally. But that does not translate into some sort of immediate condemnation of Israeli actions as war crimes, no matter what the facts on the ground are. I must therefore confess that I am somewhat baffled by your reaction to my call to hold on passing judgment on that point before the facts are known more clearly.

  23. Is Professor Leiter that obtuse or just poorly informed?  Fisk’s analogy to attacks on Northern Ireland from the Republic is so strained as to be absurd.  For one thing, the Republic was not supporting or harboring the IRA – the Dublin government  actively cooperated with the British government to eliminate IRA threats.  The situation couldn’t be more different from Gaza where it is the Hamas government itself that is resposible for most of the current rocket fire.  And for Mr. Fisk (and implicitly Prof Leiter) to claim a moral superiority of the British is quite foolish – you just need to look at the targeted bombings of civilian areas in WW2 or the concentration camps in the Boer War to realize what the British reaction was (or would be) to a real threat.

    It is quite a comment on the “strength” of the professor’s position if this is the best he can do.

  24. “First, I invite David to explain the conception of morality according to which the Israeli actions in Gaza are proportional to the harm inflicted by Hamas rockets.   Does David think Palestinians are human beings, whose life is of equal value with that of Israelis or not?  I am curious.”
    That is not the right question.  If that were the right question, no nation would even be allowed to act in self-defense unless the likely harm to its own civilians of not acting exceeded the likely harm to the enemy’s civilians of acting.  And you should spend your time attacking the far worse, from this perspective, NATO action in Afghanistan.
    A government is the agent of its citizens, not the whole world. It has to take morality into account in fulfilling that agency, but that doesn’t mean it has to value all civilians equally.  Brian, I assume you fed your children today.  Did you feed all the starving children in Bangladesh?  No?  Why not?  Aren’t they human beings whose lives are, from a moral standpoint, equal in value to those of your children?  Then how do you justify feeding your children while letting others starve?  Could it be because the responsibility you have for you own children is greater than the responsibility you have for strangers’ children?
    In short, of course Palestinian lives are as valuable as Israelis’.  That’s not the question. The question is whether the Israeli government is obligated to act as if it’s own citizens’ lives are no more valuable than the lives of the other side’s.  If so, it would be the first government in human history to act that way, and would justly be overthrown by its subjects.  (No state acts this way.  The Scandinavian countries are proud of all the foreign aid they give, but they are hardly offering to extend their welfare states to the population of Bangladesh.)
    Now, one can argue that the whole idea of nation-states is misbegotten and immoral, and I would tend to agree.  But if so, there’s no reason to pick on Israel for acting like (actually, better than, in general) most other nation-states in how it conducts war.
    “Second, in response to the ‘challenge’ with which David seems so impressed, let us start by quoting Robert Fisk from the article, above:”
    Fisk is wrongheaded on so many grounds. Just for example, the IRA was defeated because it lost its support from the Communist bloc after the fall of the Berlin Wall, not because it was always willing to negotiate in peace but the British had previously been intransigent.  And, in fact, the IRA basically surrendered; the British still rule Northern Ireland, no? (If Iran similarly stopped funding
    To take another example, to analogize Gaza to the Republic of Ireland is absurd.  Hamas is the government of Gaza.  The analogy would be sound only if the IRA had been governing Ireland, and sent thousands of missiles from there into Great Britain.  Actually, G.B. did face a foe that sent thousands of missiles into G.B. from its sovereign territory.  It’s response was, among other things, to burn the city of Dresden to the ground, along with its civilian population.
     

  25. Not that it’s substantively relevant, but just to blow David Bernstein’s mind a little bit: I think Israel is the only state that should exist between Israel & the Palestinian territories.

    In other words, I am in favor of the one-state solution that Patrck O’Donnell alluded to. I came to that conclusion largely after many extended discussions with Palestinians (mostly, to be fair, from the West Bank). Prior to that, I had always assumed a two-state solution would be best. [Not that all Palestinians think this is right, or that Palestinians have some special claim on valid reasoning. Rather, the reason I always, always emphasize my Palestinian friends when discussing Israel, particularly when people like David Bernstein are involved, is simply to emphasize that, just like Israelis, Palestinians are human beings. Neither has superior claim to humanity. A point I think David Bernstein, and others (on both sides, frankly), often lose sight of.]

    Anyway, the point: I think Israel should (and has a right to) continue to exist, and I think Israel’s actions with respect to Gaza are neither helpful (as a realpolitik matter) nor particularly right (normatively).

    Ergo, let David Bernstein eat cake.

  26. My cut off line should have said, if Iran and Saudi Arabians stopped funding Hamas, Hamas would go the way of the IRA after the fall of the USSR.

  27. Marko,

    I doubt these moral intuitions are unique to me and thus I have no uniquely private or exclusive proprietary interest in them. They can certainly be discussed and debated, questioned, subect to revision, and so forth and so on. My understanding of such intuitions is beholden to Robert Audi’s The Good in the Right: A Theory of Intuition and Intrinsic Value (2004).

    I don’t necessarily hold utopian aspirations for the law: in fact I think we can work for something betwixt and between “apology and utopia.” I well realize the law can only do so much, but there’s nothing wrong with testing its limits or seeking to improve it.

    You say that “international law does most certainly care about the Palestinians’ right to self-determination and their human rights generally,” but I see little evidence of this care and concern among international law scholars, at least in this country, where the focus is along the lines of the posts here and elsewhere in the legal blogosphere (proportionality question, right to self-defense, etc.).

    There may be some facts that are unknown or disputable at this juncture, especially from an international law vantage point, but I intended to stress that we might nonetheless conclude that there are facts aplenty with which to ascertain precisely why the Israeli bombardment is wrongheaded, both politically and morally, indeed, that it will lead to consequences not at all in the long-term security and self-interest of the state of Israel.

    As to the statement: “Once a conflict starts, it is generally impossible to find any agreement on what is moral, just or legitimate,” I can only say the resolution of protracted conflicts historically and globally suggests othewise.

  28. LHD, your particular foolishness is in thinking that if someone is generally sympathetic to Israel in the current conflict, he must think that the “Palestinians lack humanity.”  You have Palestinian friends. You seem sympathetic to the Palestinians.  You oppose Israel’s military action in Gaza.  You must think the Israelis lack humanity.  See how stupid that is?

    I have no idea whether Israel’s current military action will be successful or not.  But let’s say it was wildly successful, and led to Hamas being overthrown and replaced with a less theocratic, more moderate government that was willing to negotiate a peace agreement with Israel. Would the Palestinians be better or worse off? Supporting Hamas, implicitly or explicitly, is hardly the way to further the interests of the Palestinian public. Maybe if I put it this way: Hamas is even more religious, more theocratic, less tolerant, and more apocalyptic in its ideology than George W. Bush.  Get it?

  29. The problem, DB, is that, as a commenter at VC pointed out, you appear to all the world as an unapologetically unconditional supporter of everything Israel does. Beyond that, however, you appear to aggressively argue for Israel’s right to do just about anything in pursuit of what its leaders conceive of as wise policy. Perhaps those are misperceptions. But they are not mine alone. It would be reasonable, then, to believe that perhaps there is something beyond my far-left ideological bias (as you perceive it) creating those impressions. As it happens, I think Bush was an epically terrible President. But I don’t know the man. From all my very distant observations, he seems like a relatively nice guy (aside from the creepy shoulder-love given to Angela Merkel that one time). I believe he deeply belives in and is committed to his faith and that he tries to do what he thinks is right. He’s just another human being, like you and me. He’s open to public, and vigorous, criticism because he chose to run for President and won. This is the nature of public debate.

    Personally, I think it’d be much more helpful to move beyond all this and to have a real, responsible, substantial dialogue about Israel and Palestine. I don’t think Israel is evil. I don’t think Palestinians are angels. I think Hamas is, in part, a terrorist organization.

    But what forecloses rational, responsible, substantial dialogue faster than anything is constantly accusing one’s interlocutors of some desire to see Israel destroyed and Jews wiped off the face of the Earth, or to see in the concerned, open-minded criticism of some, the image of ideologues who have long since closed their minds to reason. I don’t deny the latter exist, on both sides of the issue. Ideologues are everywhere. But not everyone is an ideologue.

  30. Well this looks fun . . .

    Eternal KJH fan

  31. “The problem, DB, is that, as a commenter at VC pointed out, you appear to all the world as an unapologetically unconditional supporter of everything Israel does. Beyond that, however, you appear to aggressively argue for Israel’s right to do just about anything in pursuit of what its leaders conceive of as wise policy.”

    To a hammer, everything seems like a nail.  To someone who is objectively hostile to Israel, any defense of Israel will seem like unapologetic, unconditional support for Israel.  Moreover, Israel happens to be blessed with cartoonishly evil enemies right now, in Iran, Hezbollah, and Hamas. If these were fanatically Christian or Jewish, entities, rather than fanatically Moslem, Israel’s left-wing critics would be joining the equivalent of the Abraham Lincoln Brigades to fight them.

  32. This is all very interesting. But what seems much more important is the Sri Lankan breakthrough into the main city of the Tamils. This is likely to entail massive casualties (I think I’ve heard the war so far has killed over 100,000), and also give the government victory in a 30-year civil war (one of these conflicts to which there seemed to be no military solution.

    Given that (most peoples’) passions on question of Tamil self-determination run much cooler, maybe this is a much better forum for considering the application of IHT to non-state actors, questions of self-determination, responses to terrorism (I think the Tamil Tigers invented modern suicide bombing) etc.

    But this aslo begs the question, given that so many more lives have been/will be lost in Sri Lanka, why the extraordinary gap in the attention between it and Israel… A quick and very unscientific search suggests Opinio Juris posts on the subjects run approximately 13-1 on the two subjects (Israel/Arab conflict vs Sinhaleses/Tamil conflict).

    Two increase the similarity, both countries were created in 1948, and the Sinhalese control over Tamil minority (which in my understanding is more geographically concentrated than in Israel) is the result in part of British colonial decisions … (Except I don’t think the Tamils have ever been offered partition and independence by the UN)…

  33. Re: “why the extraordinary gap in the attention between it and Israel”–

    I can think of any number of reasons for this, but I’ll just cite a few of the more conspicuous ones: the geopolitical interest in the two regions differs dramatically. And I suspect there’s very little facility (or little more than passing acquaintance) with South Asian conflicts in general, in this case, including a comparative paucity of knowledge about either the Tamils or Sinhalese Buddhism, made worse by the lack of significant media coverage, at least here in the states. I could be wrong, but I doubt that most scholars in the field (apart from regional specialists) are ever exposed in any deep way to Asian, especially South Asian history, let alone its religious traditions. There is, nonetheless, apart from a few conventional histories and political studies, a handful of excellent works in both anthropololgy and the study of religions (by Gombrich, Tambiah, Spiro, Obeyesekere…) pertaining to Sri Lanka that would not take long to master. Of course there’s the historical links between European and North American Jews and Jews in Israel that no doubt accounts for some of the differential focus as well, not to mention the historic support of Israel by the U.S., especially from the 1960s forward. Alas, it probably doesn’t “pay,” profesionally or otherwise, to take the time to cultivate the requisite knowledge for a claim to expertise here. I’m not saying this is how things should be or that this state of affairs is worthy of justification of any sort, in fact, it’s rather lamentable.

  34. Response…
    As a non-lawyer I find much of this discussion strange. Were the laws and treaties quoted written for regular or irregular war? Are Hamas combatants  dressed in uniforms etc. Are arms kept in military areas or in houses and mosques.
    A soldier guarding a ammo dump is a combatant.
    If you hide weapons i your house are you also guarding them? Are you then a combatant . Ditto for feeding combatants.

    Bush etc boldly went into outer space when he wrote his own book on combatants.

    Are there international guidelines in defining combatants in irregular wars? If so can they be brought into this or another such discussion?

  35. Patrick makes some good points. But still, international lawyers should take an “international” approach, otherwise they are practicing “EU + law” rather than international law. And their interests should be informed by where the action is at, not where the political interest is at, especially if the preservation of human life is the goal of IHT.

    The fact that geopolitical interest differs also in a sense begs the question.  (After all, Tamils assassinated the prime minister of India, a country of 1 billion people, which I think gives the conflict an unrivaled geopolitical salience). Neither place has particularly important natural resources, etc.

  36. Also, I think the Israeli/Arab conflict was of overwhelming interest to the international norm making community long before Israel became an American client in the 60s, or the Arab states became Soviet clients in the late 50s/early 60s. Indeed, even in the later 40s when Israel was a minor Soviet ally(!!) or ’51-56 when it was no one’s ally, the conflict received a great deal of attention, though I don’t know it if it was more or less than now.

    What is surprising about the lack of interest in Sri Lanka is that while unlike Israel, English is not an official language, apparently a wide vareity of legal materials are translated into English,  so it wouldn’t take some specialized scholar to do research… indeed, a quick comparison of the web pages of the Israeli and Sri Lankan courts suggests the latter is at least as well designed and perhaps more accessible.

    I’d be particularly interest in the Sri Lankan courts’ decisions on anti-terrorist measures.

    Of course, I’m part of the problem. These posts are the sum total of what I’ve written about the Sri Lankan war… it is like empirical research, everyone says there should be more of it. By the other guys.

  37. My, what a dreary thread this is. I have some comments for Prof. Bernstein.

    You say you have no idea if Israel’s current operation will be successful?

    BS.  Why would you suppose it would have any different result than any of Israel’s other predatory depredations against the Palestinians?

    The results have been absolutely uniform for 60 years. The notion that any of it has anything to do with peace or or security is utterly dishonest. Hitler used the same lies to justify the same crimes for the same reasons.

    And believe me Prof. Bernstein, your enemies don’t look half as comically evil as you do. If anyone in this discussion is objectively committed to the destruction of Israel, that would be YOU and every other hypocrite who pretends Israel has rights and Palestine does not.

  38. Charles Gitting, you win the Godwin Award! BTW, you’re right, the Israelis are JUST LIKE the Nazis.  My own grandparents were saved from the Warsaw Ghetto when the Gestapo dropped leaflets warning that they were about to bomb their building in the Ghetto.  My grandparents didn’t believe them at first, but when they got a phone call, in Yiddish, from the Luftwaffe, they decided to take cover.  They then lived off the relief supplies that the Nazis sent into the Ghetto on regular intervals, all that despite the fact that the Ghetto was run by terrorists who had blown up dozens up German buses and restaurants while peace talks were progressing!

    Are you really that stupid, or are you just playing “bait the Jew” by bringing Hitler into this?

  39. For better or worse (okay, worse), much of non-positive IL is really the normative wishes of jurists and academics.  That said, regardless of where IL comes down on the question I will present shortly, an analysis of how IL should approach my question is appropriate.

    For this discussion, let me move back to an even more basic principle (which I believe IL recognizes).  In the legal context, a party is not permitted to gain from its illegal action.   As such, if Hamas routinely prevents the ability of Israel to attack many of Hamas’ military sites through the use of placing the sites in civilian areas and using civilans as human shields-lite, should Hamas be permitted to gain a military and legal advantage by its illegal behavior? 

    If the proportionality analysis is not changed in this situation, then IL permits Hamas to gain a distinct advantage by its illegal behavior.  An advantage which Israel can only negate by engaging in illegal –disproportionate– responses.

    Surely in a system that pretends to want Justice, IL should not permit a party to gain such an advantage through the abuse of IL, and consequently require the other party to engage in disproportionate attacks just to hit its targets, that otherwise would not be problematic.

    I put forth this proposal, if IL is to maintain any semblance of relevancy and justice in the era of the modern terrorist state.

    When a defending party engages in the systematic placement of its own military targets in the midst of protected peoples (civilians) and protected places (churches, mosques, etc.), the burden shifts to the defender to prevent the unnecessary loss of civilian life.  The attacker is still expected to warn the civilians to the extent military necessity permits, and should engage with care to not purposefully target civilians.  But, any otherwise disproportionate civilian causalties are then the fault of the defending party, and not the attacker.

  40. No Prof. Bernstein, I’m not stupid — just honest, unlike you. I mentioned the Nazis because you sound just like one. The only real difference is the identity of your victims.

    And don’t patronize me: I know the history quite well, and I’ve heard all the excuses that bigots like you employ to justify their malice and crimes.

    Think I have something against Jews?

    Think again: I just don’t like gangsters or liars, and bigots like you are BOTH.

  41. Charles Gittings, I challenge you to present a single statement I have made, here or anywhere, that sounds remotely like Nazi ideology with only the identity of the victims switched. 

  42. And apologies to Professor Heller, for claiming “dead silence” when he in fact did respond to most of HumbleLawStudent’s arguments.

  43. That’s easy enough.

    I count 9 posts on this thread. Your cognitive resemblance to a
    Nazi is evident in nos. 1, 2, 3, 5, 6, and 7.

    You’re malice towards Palestinians / Arabs / Muslims is evident every time you mention them.

    But beyond that, your bigotry is manifest every time you start talking about the contents of other peoples heads, as for example “those who don’t think Israel has aright to exist” or “those who are objectively hostile to Israel”, etc, as if you know their motivations and beliefs better than they do.

    Then there’s all the diverse elements of your rationalizations, diversions, excuses, doubles standards, etc.

    For example:

    What exactly makes YOU think that Israel has something that could be accurately described as a “right to exist”?

  44. “What exactly makes YOU think that Israel has something that could be accurately described as a ‘right to exist’?”

    You don’t think that after that performance, where you discern that the Jewish comentatory has Nazi-like habits of thought and bigotry through your ouji board when none are evident in the actual text, I’m going to try to engage you in rational debate, do you?

  45. Eugene Kontorowich: “…Sri Lanka is that while unlike Israel, English is not an official language…”

    The official languages of Israel are Hebrew and Arabic. English is not an official language of Israel.

  46. The overwhelming response to Professor Heller’s posting, “Dershowitz on Israel and Propotionality” validates the point I made in response to Professor McGuinness’ article, “Top Ten Humanitarian Disasters of 2008” which she posted on December 24, 2008. Within a day, 46 individuals had responded to Professor Heller’s comments but in a span of 11 days only two comments, including mine, have been made to Professor McGuinness’ posting. At the risk of repeating myself the following is the comment I made to Professor McGuinness’ posting:
    A very welcome report by the MSF, but unfortunately this press release is going to be buried by the never ending Palestinian Israeli conflict. Without derogating anything from the dangerous Middle East conflict it is fair to say that the Arab Israeli conflict subordinates all other crises where the volume of death is higher but less dramatic. Somalia has not had an effective government since Siad Barre. Consequently, it has spiraled into what we have today, a lawless stretch of land in which diseases are endemic and life expectancy is very low. Lately, Somalia has been in the news not because of this very dire situation but because of the pirates who are causing havoc in the Indian Ocean. Ethiopia is in the news because of its involvement in Somalia but not much is said about its less-than-democratic friendly government hence the perennial suffering of the Ethiopian people. The crisis in the Democratic Republic of Congo has been going on for too long. We are in danger of subconsciously accepting the situation in Congo and the whole Central African region as a normal way of life in that part of the world. I guess we have already done so to Myanmar. But for the repression of the monks and the May 2, Cyclone Nargis, which killed more than a hundred thousand people, very few people talked about the effects of the repressive regime of Myanmar/Burma never mind head line news about this murderous dictatorship. Just like Burma, where the junta has neglected the health sector, Zimbabwe was recently in the news because of a cholera outbreak. But HIV and Aids has been silently killing people in both countries for the past many years. More people die from treatable illnesses in Zimbabwe each week than people killed at the height of the Israeli-Palestinian conflict in months. 
    The last statement shows how unfortunate our world has degenerated to. Statistics of death is used as a barometer to measure the seriousness of a given crisis. But most of these deaths could be avoided only if the international community takes preemptive steps and goes to the root of the problem i.e. poor governance which results in human rights abuse and the symptomatic suffering that ensues. Instead, we, as the international community are reactive rather than proactive. We wait until it is too late to take any meaningful action, if ever. At the end of the day we find ourselves overwhelmed by avoidable humanitarian crises. There is no acceptable reason why in this day and age we should be witnessing childhood malnutrition and high infant mortality rate. Neither is there any understandable reason why HIV-tuberculosis co-infection is still prevalent. The reason for all this agonizing human suffering is simply because human rights abuse has not yet been accorded the urgency and position that it deserves. There is nothing internal about abuse, gross or otherwise, of human life. I am yet to come across any leader who abuses his own, and without any pressure from anyone realizes on his own that he is abusing the rights of his people. Once a government starts to abuse its people it never relents unless and until it is forced to desist by external pressure. Internal pressure almost always results in further human rights abuse or civil war but timely and effective intervention by the international community stops an abusive government on its tracks. Unfortunately, there is a very discouraging record of the international community taking the necessary steps to rid itself of abusers of power. 
    Yes, the Middle East conflict requires urgent attention but so does other crises that go on without enough coverage and attention. If only we realized this point the world would be a better place. Some may call this assertion naïve and interventionist but I challenge those who think so to try and pay more attention to all these crises and see where we will end up. We cannot be that distant from reason.
    Maybe, the Christmas holiday had something to do with the poor response, which I presume results from lack of interest in the MSF report. Let’s wait and see.
    I have consciously decided not to comment on the current Israeli Palestinian crisis because I am convinced that it is well covered and there is no shortage of legal and other opinions.

  47. Proportionality prohibits the use of force that exceeds that needed to accomplish the military objective. Hamas is still firing rockets, which would indicate the IDF is not using more force than necessary to stop the firing of rockets.

  48. What military objective?

    My understanding is that the rocket attacks have killed four people. I did a little checking today and Israel has one of the lowest murder rates in the world at 2.29 per 100K according the the Jerusalem Post. That works out to 168 murders per year. I didn’t check traffic fatalities. Do you suppose the police call in air-strikes?

    The reality here is that Hamas does NOT pose any sort of a viable military threat to Israel, and there isn’t any reason to suppose that anything going on in OCCUPIED Palestine — including the Gaza Ghetto — represents anything that could be described as “warfare”.

    This is just a simple case of rape, with the rapist beating up the victim to make her like it. That’s how sick this is.

  49. Liz,

    Putting aside Charles’ typically useless vitriol, your understanding of proportionality is mistaken.  Israel is allowed to use any amount of force it wishes against legitimate Hamas military targets (the principle of distinction), as long as a state of armed conflict exists.  No matter how much force it uses, however, each and every one of its attacks must not cause too much collateral civilian damage relative to its expected military advantage (the principle of proportionality).  That is a difficult calculation to make — but the fact that Hamas is still launching rockets indicates at best that there may still be military advantage to gained by the use of force; it says nothing about whether Israel’s attacks are proportionate.

  50. Mr Mahlanga makes and excellent point. Likely many more innocent people have been killed daily in Sudan for years than during the last few days of fighting in Gaza. There are likely dozens of other conflicts which are far worse than the middle east conflict. Why the obsession with the middle east conflict?

  51. Dear all, There seems to be a confusion of two aspects of proportionality here, the jus ad bellum and the jus in bello aspect. Regarding the first, proportionality has been recognized as an implicit component of the right to self-defense (see,most recently, the ICJ judgment in DR Congo v. Uganda, para. 147, by the way a situation in which Art. 51 did not apply). Even if, as Marko Milanovic correctly argues, the situation with regard to occupied territories is not precisely identical with the one contemplated in Article 51 of the Charter, this does not take away the requirement that the overall campaign must be commensurate with the security threat that triggered it. Secondly, there is the proportionality requirement of jus in bello, as contained in Art. 51 para. 5 b of Additional Protocol I. Here, we find the more permissive standard of an “excessive” rather than simply “disproportionate” use of military force. In addition, the latter standard only protects civilians. Combatants are only protected by the Martens standard of avoiding “unnecessary” suffering. In general, any reasonable military purpose would suffice. Of course, one may argue that the jus in bello standard should also apply to the jus ad bellum question in order to protect the State acting in self-defense. But I do not see much of international judicial authority for this argument at present.

  52. Kevin there’s nothing vitrioloic about it: calling the occupation of Palestine an armed conflict is just not accurate. It’s like saying that an aquarium is an ocean or a greenhouse is jungle — it’s a misrepresentation of the facts.
    And I have to say: “typically useless” that’s apretty good description of the conventional wisdom on both side of this issue — it’s been fully SIXTY YEARS now.
    Is there peace in Palestine YET?
    Is Israel safe yet?
    Has the League of Nations mandate been fullfilled yet?
    You can insult me all you want, but the reality is that I’m not doing anythingbut telling it like it is.
    I am not your enemy, and facts are NOT vitriol. I reaspect you a lot, but your sneering accusation is puret BS.
    If you have some specific issue with me, let’s hear it.  I didn’t say anything to Prof. Berstein that was  unwarrented, and if you think otherwise you are mistaken.
     

     
     
     
     

  53. Student,
    The “obsession” with the Middle East coinflict has to do with the fact that events in Palestine have been acting as a malignant cancer in international relations and US foreign policy, etc, for 60 years, andit is asituation that is fraught with potential to erupt into a much larger and worse problem at any time.
     

  54. Charles Gittings: “events in Palestine have been acting as a malignant cancer in international relations and US foreign policy, etc, for 60 years”

    I suppose it might have affected America’s relationship with various dictatorial regimes in the Middle East, but these usually have other, bigger reasons for their antipathy for America. Should we believe that the various Arab dictators really cared about the Palestinians? After all, they helped create their predicament by launching numerous genocidal wars against Israel, and by maintaining the Palestinians in the most sordid conditions for their own sinister motives.

    In any case, even if America could have exchanged it’s friendship with Israel for friendship with some dictator this may or may not have been more pragmatic, but it wouldn’t have been more moral.

    “it is asituation that is fraught with potential to erupt into a much larger and worse problem at any time.”

    I’m not sure that other, far more deadly conflicts and far more brutal regimes that receive far less attention do not have this potential. What’s happens e.g. in Somalia and North Korea has enormous destructive potential for the rest of the region. And as for Sudan, I think we are already very far beyond wondering about greater destructive “potential”.

    So the question remains.

  55. Student,

    Actually, antipathy re the US isn’t what I had mind.  It inflames the relation between the Islamic nations and the rest of the world generally, it has created huge geopolitical stresses in a region of vast strategic importance, and here in the US is has warped the very perception of reality.

    Liuke for example, the simple notion that Israeli is an allyofthe United States.

    In what exactly?

    Mostly, in subverting the policies of the United States for the benefit of Israel to the detriment the United States and the world at large.

    What do we need Israel for?

    How does the relationship benefit the US?

  56. Student said:

    “[Events in Palestine] might have affected America’s relationship with various dictatorial regimes in the Middle East, but these usually have other, bigger reasons for their antipathy for America. Should we believe that the various Arab dictators really cared about the Palestinians?”

    This question is an interesting and important one. Rather than exploring it at any length here, I invite you instead to take a look at a memorandum and paper submitted on 11 February 1948 by George Butler on behalf of the Policy Planning Staff at the State Department to Under Secretary of State Robert Lovett. The paper is entitled, “The Problem of Palestine.” I provide links below, but let me first sketch the background.

    The U.N. General Assembly had voted on 29 November 1947 to recommend termination of the British Mandate of Palestine and partition of Palestine between Arabs and Jews (the original two-state solution). Britain planned to terminate control over the Mandate on 15 May, but they obstinately refused to allow the Palestine Commission, which was to assume control of the Mandate until the partition could be practically worked out, to enter into the Mandate before 1 May. Thus, the Commission would have exactly two weeks to prepare to assume control of the Mandate. However, the Mandate was rife with Jewish-Arab conflict. Both sides had multiple militia-type groups regularly conducting raids and reprisals on the other. The Arab governments had all steadfastly rejected the Partition Plan. They had done so immediately and had continued to oppose it vigorously. Syria was providing space for outside groups to train and equip guerilla fighters to infiltrate into the Mandate to support the Arab groups. Meanwhile, the U.S. had imposed an embargo on arms exportation to the region, but Britain was providing arms and equipment to certain Arab governments (ostensibly under previous treaties and agreements). In short, the situation was a giant mess. On 16 February, the Palestine Commission reported that implementation of the Partition would not be possible without the support of armed forces. The U.S. had feared that would be the case. We supported the Partition plan in the General Assembly, but one of the premises of our support was that the Partition had to be mutually acceptable to both sides. In other words, we did not want to force partition on either group. So, around 11 February, when this memorandum was written setting out the views of the Policy Planning Staff, the U.S. was facing major questions about its policies towards Palestine, the Mandate, Partition, etc. Our relations with Arab governments had markedly deteriorated since we had supported the Partition Plan. Ambassadors to the region were telling Washington that they were concerned about the state of our relationships with those Arab governments and were scrambling to patch them up. This memo represents the consistent views of the PPS at State since these questions had arisen. (You can see earlier drafts of it, as well as memoranda between various people discussing its contents in the earlier pages of the volume.) Indeed, the earlier drafts were more forceful in terms of policy proposals, whereas this final paper disclaimed any intention to make proposals or recommendations. (Nevertheless, it’s fairly clear what they are, in fact, recommending, because they couch 2 of the 3 options as: If we do this, bad stuff happens.) It was submitted to the National Security Council on 12 February as a working paper.

    Although subsequent events mooted the U.N.G.A. Partition Plan, the forecasts and warnings contained in this paper proved prescient. The PPS warned that if the United States backed partition without the consent of the Arabs, we would be virtually declaring war on the Arab world. It also emphasized that an uneven approach to the situation, or to be perceived as supporting one group over the other, would damage our interests in the region and cause regional instability that could last well into the future. Prescient, indeed.

    The memo is reprinted in the Foreign Relations of the United States, 1948, vol. V part 2. The link to the volume is here: http://digital.library.wisc.edu/1711.dl/FRUS.FRUS1948v05p2

    On the top of that page, there is a box next to the button “Go to page.” Go to page 619 for the PPS memo.

    The entire volume is very interesting and worth reading, as it is specifically devoted to the issues surrounding Palestine and our relationships with Arab governments as a consequence of our policies.

  57. Thanks for the debate. I second Valentina Azarov’s concern that we should not abstract from the context of occupation. I think there is something problematic in Israel saying it acts to defend its sovergenity while it continue to dispossess the Palestinians in the West Bank and Gaza. THere is a complex question of how we take this into effect. Also, I suggest you read this short report from HRW:
    http://www.hrw.org/middle-eastn-africa/israel-and-occupied-territories
    Ultimatley, in thinking of IHL, we should consider whether we want a IHL that become apologia for kiliing of children and civilians? Because I fear the use by Israel and some of it defenders takes IHL to that direction. This is possible because of the structure of IHL itself but also because of this total abstraction from context.
     

  58. Isn’t the wisdom of Israel’s actions from a long term point of view kind of moot for the purposes of legal analysis, however?  There’s a reason the additional protocol refers to military objectives, not political ones.

    I personally rarely debate the I/P issue with people, as there’s rarely any actual “debate” involved, merely people talking angrily past each other.

  59. I agree with Aeyal. I think the situation in Palestine is essentially outside the context of IHL. This isn’t a war, it’s an occupation, and Israel isn’t defending itself, it’s inflicting punishemnt for the sake of intimidation.

    The dishonesty of it is simply apalling.

  60. I agree with Aeyal Gross – the elephant in the middle of the room is the fact that Israel is still the Occupying Power in Gaza, with all the attendant obligations.  How those can be fulfilled through aerial bombardment is beyond me.

    Clearly, Israel screwed up when it unilaterally demilitarised Gaza and failed to adequately address the question of how it would continue to fulfil its Occupying Power obligations; the fact that it did so in order to shirk its obligations does not relieve Israel of those obligations.

  61. Response… Why Hamas is not a terrorist organization

    To start with let me just say that just because the US congress had declared that Hamas is a terrorist organization, under pressure from the pro-Israeli-lobby, it does not make it as such in the rest of the world, and certainly not Gaza . As far as I am concerned, if the powerful pro-Israeli lobby decides that my dog is a terrorist organization, then the US congress will dutifully declare that my dog as a terrorist organization.
    Hamas is a resistance movement that resists an illegal Israeli occupation. Sure Hamas has made mistakes in the past with regards to targeting the Israeli civilians and have used suicide bombing as a mean to inflict losses on the Israeli society and civilians, which is in my opinion was wrong and immoral. And still is. Suicide bombing have hurt the Palestinians more than benefitted them. But no one should claim the moral authority to ask the victim to modify his resistance to his oppressor while the gun is still pointed at his head 24 hours a day and 360 days a year and for the past 60 years.
    Moreover, the Israeli government cannot claim Hamas as a terrorist organization while it has been using terror on a daily basis against Palestinian civilians. which in my opinion is the real terrorist here. Resistance to an illegal occupation is legitimate and legal right to every one in this world including Hamas and the Palestinian people in general. Israel cannot claim the moral high ground and say that Hamas is committed to” annihilate” her. Let’s not kid ourselves here by apologizing for the murderer and blaming the victim. Israel the most powerful country in the Middle East is the one who is committed to annihilate Hamas after it already had annihilated Palestine.
    The Israeli leadership had outsmarted the corrupt Palestinian leaders. Israel chose “peace process”, not PEACE, as a strategy to deflate, liquidate and dilute the Palestinian struggle. With the Peace process, it is an endless negotiating, back and forth, elections, skirmishes, more illegal settlements, more Jewish-only highways more Palestinian water stolen, all that while we have what’s so called “peace process” and the Oslo accords” ever since this scam that is called peace process and Oslo accords in 1993, Palestinians are in far worst shape than ever before. Israeli has stolen more land, more water, and killed more Palestinians. And you still wonder who the terrorist is. Israeli is the terrorist organization.
    While the Israeli leaders keep feeding off the Palestinian flesh and blood daily and nightly in Gaza, Hamas does not need much to declare victory, it does not have much to prove or have land to conquer, in fact Israel could reoccupy the entire Gaza strip and Hamas still come out wining after it fires just one home-made rocket on Israel. Israel is doomed to loose this war because it waged it to win an election and to show the Israeli public who is tougher and can kill more Palestinian children. And according to Israeli polls, the Israelis public loves this bloodbath and enjoys it. The Israeli leaders are nothing but cowards; the Israeli Army is an Army of cowards who uses F-16s, gunboats, Tanks, Guns on defenseless residents. Give Palestinians F-16s, tanks and warships and only then call it a fight.

  62. What I found to be the most interesting part of this discussion (the pro and anti Israeli sentiments I tend to tune out as being not very helpful) was the extraordinary claim that the IRA surrendered due to the fall of the USSR.  It is true that the IRA gave up terrorism due to a lack of foreign sponsors but this was after September 11 when the realities of terrorism became a little clearer for the idiots in the US who funded them. 

  63. My question remains unanswered. I see no more danger posed by the conflict in the Middle East than by that in Kashmir, for example, but the former receives far more attention in the media than the latter.

    I’d like to reply to the comment from Ali:

    “But no one should claim the moral authority to ask the victim to modify his resistance to his oppressor while the gun is still pointed at his head 24 hours a day and 360 days a year and for the past 60 years.”

    I think that Hamas is not the “victim” here, but the aggressor. Admittedly, I find it difficult to engage in much imaginative sympathy with theocratic, homophobic, mysoginistic, genocidal criminals. In any case, the moral principle assumed here is false. Of course, we may criticize any immoral tactics used by a victim, especially if it hurts his cause. At least, no reason has been provided for thinking otherwise.

    But there are so many lies and is so much vitriol in the latest posts here that I don’t see any benefit in partaking in further discussion here.

  64. Well Student, the difference is probably proportional to that between the relative significance of the Second World War and the partition of India in Western Europe and the US. It happens that I agree with you that those two situations are both very dangerous.

    But Hamas is not the problem here, Israel is the problem, just as Pakistan is the problem in Kashmir.

    And what exactly is the problem?

    It’s essentially the same thing in both places: uncomplicated theocratic gangsterism. Hamas isn’t doing anything but playing Israel’s game by Israel’s rules.

  65. The claim that Israel is an occupying power seems extremely tenuous, given the circumstances of self-governance and the (until recently) lack of physical presence.  However, that’s really an argument for another article.

  66. Lack of physical presence??

    Gaza is a prison.

  67. The bottom line in the relationship that Israel wants with the Palestinians and Hamas in particular is that of Master-Slave relationship.
     
    What  Israel and its apologists on this blog ( shame on them) are saying is that “ If you Palestinian  work the field for us, be a cheap labor, a market for our products, we will let you live in peace, as a slave forever, and if you speak up, resist us, attack us, or fire rockets at us we will come after you with our F-16s and kill you, kill your children and kill your mother and father”
     
    One more thing: It is in my humble opinion that those who accuse any one who criticizes Israel as an “anti-Semite, or that he “denies Israel right to exist”, is himself a terrorist for he/she is trying to terrorize people of speaking their mind or using the tools of law to bring justice to people who were denied it for the past 60 years.
     

  68. M. Gross re Occupying Power – Israel controls Gaza’s one border directly, its other border (with Egypt) effectively; Israel controls Gaza’s territorial waters and airspace (Gaza’s airport is non-functional and Gaza is not allowed to have a port); Israel controls Gaza’s finances, its population register and hence the movement of individuals in and out of Gaza, whether Palestinian or foreign; Israel has destroyed Gaza’s only power station and hence controls Gaza’s electricity; Israel – to the exclusion of any other state actor – can exert force at will, and Israel can and has put it troops into Gaza at will.

    While Israel has chosen to delegate some of its Occupying Power functions to a local authority, the scope of that local authority’s authority is unilaterally circumscribed by Israel.

    To me, there can be no question that Israel is in effective control of Gaza and hence the Occupying Power in Gaza.  This is even before we look at the numerous undertakings of Israel over the years not to unilaterally change the international law status of Gaza.

    The reality that Israel has sought to wash its hands of its responsibility (never mind the pernicious involvement of Israel in the bloody attempt by Fatah to deny Hamas its election victory, which backfired), which resulted in a total mess, does not relieve Israel of its responsibilities.

    I’d be interested in M. Gross’ evaluation of the Occupying Power issue.

  69. Quoting Mr Heller:

    “perhaps you can explain why state practice is more relevant to determining proportionality than opinio juris.”

    That’s easy:

    State practice is the necessary prior condition to the establishment of a customary rule — or so the jurists, professors and their treatises and opinions aver. As a prior condition, it is by logical necessity more relevant.

    “Most of the world has consistently criticized Israel’s attacks in Gaza, Lebanon, etc. and many of the US’s attacks in Iraq and Afghanistan as disproportionate.  Why isn’t that equally relevant to determining what level of incidental civilian damage is unacceptable?”

    On the other hand, that is not relevant at all. Opinio juris may be another condition to the establishment of a customary rule. But “opinio juris” does not mean “the opinion of others” or even “the opinion of most of the world”. It means belief by a state that its action is required by law – or so the jurists, professors and their treatises and opinions aver. Neither Israel nor the United States have that belief; nor, indeed, as Humblelawstudent correctly pointed out, has any other state that has ever engaged in military action (including every state currently criticizing Israel or the United States). The opinions of those states that are not in the position of the actor are irrelevant.

    On the other hand, I agree with Mr Heller that (as usual) Mr Dershowitz is full of it.

    Although I should not need to say this, please note that I express no opinion on the morality, legality or proportionality of any actions by Israel, the United States or Hamas, nor do I express any opinion whether a democratic state is bound by a custom not embodied in a duly adopted treaty.

  70. I have a question on the initial posting: Mr. Keller correctly notes that “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…or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.’ Based on this provision, he claims that the question of whether Israel’s response is “proportionate” is independent of the number of Israeli casualties caused by Palestinian rockets.

    I am having trouble following this argument because it assumes that a “military objective” is divorced from civilian casualties.  Yet, a state actor’s defensive military action is often largely intended to limit and ultimately eliminate civilian and other casualties in that actor’s population.  The most reliable way to measure the amount of casualties, damage, etc Israel will be able to prevent by attacking (which qualifies as a “military objective”) is to see the damage done by Palestinian rockets so far. Consequently, I am unconvinced that “The proportionality analysis is the same if Hamas’s attacks kill one Israeli civilian or 1,000.”

  71. http://www.youtube.com/watch?v=Dy-60zSKiGE

    Kucinich argues that Israel is in violation of the Export Controls Act in its escalation of conflict. The weapons it received were given on condition of not being used for aggression or escalation against an enemy without an army, air force or navy.

    Does this suggest that the acceptance of the conditions acknowledges an understanding of proportionality and that proportionality is relative to the enemy’s armed forces?

    Does the lack of armed forces suggest that the enemy is not a state and the reasonable remedy to the enemy behavior is police action rather than military?

  72. http://www.youtube.com/watch?v=Dy-60zSKiGE

    Kucinich argues that Israel is in violation of the Export Controls Act in its escalation of conflict. The weapons it received were given on condition of not being used for aggression or escalation against an enemy without an army, air force or navy.

    Does this suggest that the acceptance of the conditions acknowledges an understanding of proportionality and that proportionality is relative to the enemy’s armed forces?

    Does the lack of armed forces suggest that the enemy is not a state and the reasonable remedy to the enemy behavior is police action rather than military?

Trackbacks and Pingbacks

  1. [...] Dershowitz on Israel and Proportionality | Opinio Juris – 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. [...]

  2. [...] and their approach:Paul Craig RobertsA Palestinian perspective (also from CounterPunch)*****An interesting discussion (including useful responses) on thelegal issues involved in the invasion o…Middle East OnlineAn earlier essay from Harper’sMichael Lerner’s perspectiveA Debate on the Invasion [...]

  3. [...] Another interesting take. Note that Heller specifically addresses what many of the comments here are about: the claim that you need to take into account Hamas’ bad behavior when it comes to proportionality. Not so says Heller: 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.” [...]

  4. [...] side versus the strategic military advantage that they gain by doing so. From Kevin Jon Heller at Opinio Juris: As Article 51(5) of the First Additional Protocol says, an attack is indiscriminate — and thus [...]