I want to add two cents to the much needed efforts of Ramesh and Victor (see, e.g., here and here) to correct the perversion of the concept of proportionality. I noted this trend back in the summer of 2006, when it was applied to Israel's military operations against Hezbollah in southern Lebanon. Also highly recommended is "Leashing the Dogs of War," a great article by our friends David Rivkin and Lee Casey, published by The National Interest in around autumn 2003. Also well worth the time is David & Lee's 2004 NRO article, "What Israeli Illegality?"But the point that McCarthy does address in his post seems to indicate that the claim of proportionality as applicable to war is an outgrowth of the attempt in general to treat terrorists are mere criminals. If so, when critics of Israel raise a cry for proportionality--it is actually not an isolated accusation raised against Israel per se. True, it was not raised nearly to the same degree against the US in Iraq, but as liberals grow more comfortable and with the P-word, we can expect it to be used against any other country that defends itself against terrorists.
I argue that there is no international law of warfare because Israel, like the U.S., has wisely declined to join the 1977 Protocol I to the Geneva Conventions. It has therefore not consented to Protocol I's effort to convert warfare from a military campaign into a hyper-legal regulatory exercise that favors terrorist factions over national armed forces.
Most of the world has signed on to Protocol I — including, regrettably, our NATO allies (the Brits ratified it in 1998, the same year Blair's government incorporated the European Convention on Human Rights into UK law). It is on the basis of this consensus — among countries that have either abdicated their national-defense responsibilities or stand to gain by Protocol I's tilting of the field toward terrorists and so-called "national liberation" movements — that Israel and the U.S. are now routinely accused of war crimes. But a set of obligations only constitutes "international law" if a country has agreed to be bound by it. Israel and the U.S. have not agreed to be bound by Protocol I. Consequently, there is no law violation in failures by Israel or us to meet its impossible terms (impossible, that is, if the objective of a military campaign is to be victory). [emphasis added]
The traditional just-war standard is that military action should be "proportionate" in that it causes fewer harms than it seeks to prevent. That's a sane and sound moral standard. It does not mean that military means must inflict only as much pain as the enemy has inflicted.
The seed for the idea of downgrading the ability of a country to protect itself may go back to the UN. Back in 2006 there was a UN report, which described self-defense by a country as a concession--one that was reluctantly granted and strongly limited--and not as a right per se:
Self-defence is a widely recognized, yet legally proscribed, exception to the universal duty to respect the right to life of others. Self-defence is a basis for exemption from criminal responsibility that can be raised by any State agent or non-State actor. Self-defence is sometimes designated as a “right”. There is inadequate legal support for such an interpretation. Self-defence is more properly characterized as a means of protecting the right to life and, as such, a basis for avoiding responsibility for violating the rights of another. [emphasis added]When the right to defend yourself becomes nothing more than a dispensation, there will always be people ready to assume the right to annul it.