Adding Balance To The Disproportionate Debate On "Disproportionate Force"

In reaction to Israel's Operation Cast Lead--and the misuse of the term "Disproportionate Force", we are finally seeing attempts to counter the popular misconceptions and outline what it really means according to International Law.

In previous posts, I wrote about Michael Totten's research into what the term actually means, and posted the audio of an Alan Derhsowitz interview as well as the video of an interview with English barrister Gary Grant on British TV.

Now Michael Walzer, contributing editor of The New Republic, takes a stab at explaining the term, noting that:

"Disproportionate" is the favorite critical term in current discussions of the morality of war. But most of the people who use it don't know what it means in international law or in just war theory.

Proportionality doesn't mean "tit for tat," as in the family feud. The Hatfields kill three McCoys, so the McCoys must kill three Hatfields. More than three, and they are breaking the rules of the feud, where proportionality means symmetry. The use of the term is different with regard to war, because war isn't an act of retribution; it isn't a backward-looking activity, and the law of even-Steven doesn't apply.

Like it or not, war is always purposive in character; it has a goal, an end-in-view.

After a start like this, Walzer reiterates the definition of proportionate force offered by Totten

Proportionality implies a measure, and the measure here is the value of the end-in-view. How many civilian deaths are "not disproportionate to" the value of defeating the Nazis? [emphasis added]

But Walzer takes a very cautious approach and is very wary of nailing how the term should be used--unlike Israel's critics who don't seem nearly as shy:

The commentators and critics using it today, however, are not being cautious at all; they are not making any kind of measured judgment, not even a speculative kind. "Disproportionate" violence for them is simply violence they don't like, or it is violence committed by people they don't like.

It is precisely Walzer's wariness that Jonathan Tobin, executive editor of Commentary Magazine, addresses. Tobin writes:

Walzer lays out three questions to be asked before coming to a conclusion about a nation's behavior.

• Are there other ways of achieving the end-in-view?

• Once the fighting begins, who is responsible for putting civilians in the line of fire?

• Is the attacking army acting in concrete ways to minimize the risks they impose on civilians?

Unfortunately, though Walzer makes it clear that he doesn't think much of those who throw the "disproportionate" charge at Israel indiscriminately, he doesn't go to the trouble of specifically answering these three key questions. Had he done so his essay would have been as useful as it was thoughtful.

Read Tobin's response to these 3 questions.

You can also read Richard A. Epstein, the James Parker Hall Distinguished Service Professor of Law at the University of Chicago, who addresses the issue in the current issue of Forbes Magazine: Deadly And Proportionate Force: The Tragedy Of Hamas. In addressing what he calls 'the libertarian view of self-defense' Epstein:

It is a given that if Hamas were to renounce the use of force, the Israelis would instantly follow suit. But when Hamas declares open season on Israeli civilians, what may the Israelis do in response?

On this issue, we are all libertarians insofar as we believe that no individual or nation is entitled to use force against another. Why? Because the world is a far more dangerous place if everyone is entitled to use force than if no one is. But just how is that peace secured? As if by design, Article 51 of the U.N. Charter is quite useless. It recognizes "the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations." But it does not explain the scope and limits of that inherent right. Rather, it contents itself with saying that the right may no longer be exercised once "the Security Council has taken measures necessary to maintain international peace and security," which it rarely does.

The position of International law can be modeled after private law:

In general, the private law throws the risk of uncertainty on the aggressor so long as the innocent party acts in good faith to minimize unnecessary harm. As applied to the Israeli/Hamas dispute, two points are clear. Hamas has been the aggressor, and the nonstop Israeli response against military targets cannot be regarded as excessive so long as the rocket attacks continue. But can the Israeli actions still be condemned as disproportionate to a legitimate end? Tough question.

After coming to the stop where Walzer gets out, Epstein keeps going:

The principle of proportionality can be extended to some cases of bodily harm. You can't kill an attacker who for sure will do no more than scratch your face. The innocent party has to lick his wounds for the benefit of a wrongdoer. But you may kill, if need be, the attacker who threatens to maim but not kill you. Or all 10 gang members act with that same intention. Unavoidably messy.

The face-off in Gaza, however, pushes the idea of proportionality one step further. The claim is that it is not permissible for the Israelis to kill many individuals, including civilians, to stop sporadic deaths from rocket fire. Sorry. As with individual aggression, proportionality has no place in dealing with deadly force, where the right rule is that all necessary force is permissible.

The bottom line is that the fact there may be no cut and dried solution is not a reason to leave it unaddressed. Nor is it a reason, as we have seen time and time again in the media, to equate the 2 sides and instead of taking a stand, reduce the war to a simple cycle of violence. By all means, recognize that--

the riddle of self-defense has no tidy theoretical solution. If overwhelming force is needed to stop persistent deadly attack against nations or groups that flout international law, then so be it. The sooner the international community acknowledges that principle, the sooner it will intervene constructively to stop bloodshed--by putting troops on the ground in Gaza if necessary, and by convicting top Hamas leaders of crimes against humanity.

If the international community is seriously interested in ending the violence, it is time it applied pressure on the aggressor, not the victim--and not just with words.

Technorati Tag: Israel and Gaza and Hamas and Operation Cast Lead and and Disproportionate Force.