03 Jan 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.