Dershowitz on Israel and Proportionality

Dershowitz on Israel and Proportionality

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.

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humblelawstudent
humblelawstudent

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… Read more »

Francisco Forrest Martin
Francisco Forrest Martin

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.

Carrie McDougall

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… Read more »

Patrick S. O'Donnell

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… Read more »

humblelawstudent
humblelawstudent

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.

David Fisher
David Fisher

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.

Carrie McDougall

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…

humblelawstudent
humblelawstudent

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.

humblelawstudent
humblelawstudent

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.

humblelawstudent
humblelawstudent

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.

Carrie McDougall

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?

Patrick S. O'Donnell

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.

LHD
LHD

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.

Carrie McDougall

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…

Brian Leiter

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

Patrick S. O'Donnell

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… Read more »

David Bernstein
David Bernstein

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.

David Bernstein
David Bernstein

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?

Marko Milanovic
Marko Milanovic

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)… Read more »

Brian Leiter

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… Read more »

Patrick S. O'Donnell

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. 

Marko Milanovic
Marko Milanovic

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… Read more »

grit
grit

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.

David Bernstein
David Bernstein

“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… Read more »

LHD
LHD

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.

David Bernstein
David Bernstein

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.

Patrick S. O'Donnell

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… Read more »

David Bernstein
David Bernstein

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?

LHD
LHD

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… Read more »

humblelawstudent
humblelawstudent

Well this looks fun . . .

Eternal KJH fan

David Bernstein
David Bernstein

“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.

Eugene Kontorovich

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… Read more »

Patrick S. O'Donnell

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.,… Read more »

plschwartz
plschwartz

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?

Eugene Kontorovich

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.

Eugene Kontorovich

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… Read more »

Charles Gittings

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.

David Bernstein
David Bernstein

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?

humblelawstudent
humblelawstudent

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… Read more »

Charles Gittings

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.

David Bernstein
David Bernstein

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. 

David Bernstein
David Bernstein

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

Charles Gittings

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”?

David Bernstein
David Bernstein

“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?

Student
Student

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.

Godfrey Mhlanga
Godfrey Mhlanga

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… Read more »

Liz
Liz

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.

Charles Gittings

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.

Carrie McDougall

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.

Student
Student

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?