Tuesday, December 25, 2012

Disproportionate Force: When Attacked With A Knife, Can You Use Your Gun?

Disproportionate Criticism

by Jonathan Rosenblum
Jerusalem Post
December 12, 2012

Israeli military actions are consistently judged and found wanting by metrics that are applied to no other army or conflict. Application of these standards is designed to render Israel incapable of defending its citizens.

Prominent among these new metrics is the comparison of Israeli casualties to those of the civilian population from whose midst the enemy fights. As soon as the casualties on the other side exceed those suffered by Israel – usually within hours of an unprovoked attack on Israel and without any cessation of fire from the other side -- Israel's response is labeled disproportionate.

The Washington Post's ombudsman Patrick B. Pexson, for instance, recently dismissed the overwhelming majority of rockets fired from Gaza as "like bee stings on the Israeli bears behind." By which, he presumably meant that they only kill a few Jews.

But there is no acceptable level of civilian casualties, and any Israeli government that treated rocket attacks on its cities as tolerable would deserve to be tossed out of office. The protection of its citizens from external attack is the first duty of any government.

In a widely read essay, "America, Israel, Gaza, the World," Walter Russell Mead accurately describes what the reaction of American citizens would be in a similar situation: "Certainly if some kind of terrorist organization were to set up missile factories across the frontier in Canada and Mexico and start attacking targets in the United States, the American people would demand that their President use all necessary force, without stint or limit until the resistance had been completely, utterly and pitilessly crushed." While Americans might sorrow for non-combatants killed, writes Mead, they would feel no moral guilt.

Pexson himself would never dream of living in a place like Sderot. Crude and unguided Kassam rockets do not kill people every day. But people in Sderot run for the closest cover when the warning siren shrieks, sometimes many times in a day, and sleep in basements at night for a reason. Kassams have killed more than a dozen people. Americans would never subject their children to an environment in which somewhere between 42% (according to Ambassador Michael Oren) and three-quarters of the children suffer from post-traumatic stress disorder.

The Grad missiles and Iranian Fajr-5s are far more lethal than Kassams, and are deliberately fired with the aim of killing many Israeli civilians. Only by the grace of G-d and the billions of dollars invested by Israel in civil defense and Iron Dome have heavy casualties been averted. Grads have hit school buildings and playgrounds when school was not in session and close to the Ashkelon oil refinery.

The ratio of civilian casualties to those lost on the other side is only mentioned with respect to Israel. But NATO bombing in the Balkans in the 1990s killed over 1,000 civilians. No NATO pilots were lost. And obviously no American lives were lost in unmanned drone strikes in tribal regions of Pakistan, in which hundreds of civilians have been killed. At least 500 Panamanian civilians were killed in the 1989 U.S. invasion to capture General Manuel Noreiga.

No NATO country was under threat from Serbia. While Noreiga had harassed American civilians and military in the Canal Zone, he was no threat to the United States. These were wars of choice. By contrast, Israeli civilians have repeatedly been under direct attack from Gaza.

Western powers rely on safe bombing from above, even at the cost of far higher civilian casualties. Israel, however, repeatedly put its own reserve soldiers and enlisted soldiers in mortal danger in Operation Defensive Shield and Operation Cast Lead in order to minimize civilian casualties on the other side.

PERHAPS THE MOST DISMAYING TREATMENT of the issue of proportionality during Operation Pillar of Fire was that of Walter Russell Mead in the above-mentioned essay, precisely because of his well-earned status as one of America's leading foreign affairs experts.

Mead is above suspicion of any anti-Israel bias. Indeed the main thrust of his essay was to explain why there is so much more sympathy for Israel in the United States than anywhere else. Nevertheless, his treatment of the principle of "proportionality," is error-filled.

Proportionality, as described by Mead, mandates that even a legitimate war – e.g., one of self-defense – must be fought by appropriate means. To illustrate: "If the other guy comes at you with a stick, you can't pull a knife; if he's got a knife, you can't pull a gun." Israel, he argues, "doesn't have an unlimited right to respond to limited attacks with unlimited force," an obvious moral principle towards which he accuses Israel of turning a blind eye.

The description of Israel as employing "unlimited means" against Gazans is ridiculous. The United States enforced a general blockade of Germany in World War II and the Union army of the Confederacy during the Civil War. Israel did not turn off the electricity in Gaza, even in the midst of missile attacks from Gaza, and despite having no obligation under international law to supply Gaza with electricity. Food continued to flow into Gaza and injured civilians to cross the border into Israel for medical treatment.

Colonel Richard Kemp, former High Commander of British forces in Afghanistan, and a man with unparalleled experience in asymmetric warfare, said at the time of Operation Cast Lead, that no army in the history ever took more extraordinary steps to minimize civilian casualties than Israel did.

The clearest demonstration of Israel's care to avoid civilian casualties, despite the deliberate Hamas strategy designed to maximize those casualties, lies in the ratio of combatant to civilian casualties. In Operation Cast Lead, for instance, the ratio of combatant to civilian casualties was at least 7:4, by Hamas's own admission. No army in the world, including the American and European armies, has ever achieved such ratios when fighting against combatants embedded in the midst of the civilian population.

Even Mead's analogy to illustrate the principle of proportionality defies law and logic. If someone threatens me with a lethal weapon, like a knife, I'm entitled to shoot him. I'm under no obligation to put down my gun and pick up a knife to make it a "fair fight."

From the legal point of view, the relative efficacy and lethal power of a gun is irrelevant, unless I can be absolutely sure of disarming my attacker without resort to lethal force. The relevant legal questions are: Who is the aggressor? And has the threatening behavior stopped? So too in warfare. The relevant moral question is who initiated combat and have they ceased from their aggression. At no time, during the eight days of Operation Pillar of Defense did Hamas or the other jihadist groups in Gaza cease firing missiles at Israel.

Proportionality in international law, pace Mr. Mead, has nothing to do with the relative force marshaled by the parties. As Professor Michael Walzer, one of the leading contemporary "just war" theorists, puts it, proportionality is not symmetry. It is not like a feud between the Hatfields and McCoys: If the Hatfields killed three McCoys, three Hatfields (and no more) must now perish.

War, writes Walzer, is goal-oriented, not retributive. Proportionality in international law is measured in terms of the goals of a particular military action. In general, military action passes the test if it meets two conditions: one, it is directed at a military target; and two, it does not wantonly target civilians. Only if the sought after military advantage is very slight and anticipated civilian casualties very high would proportionality become an issue – for the military action would be akin to the deliberate targeting of civilians.

Precisely because Mead is not some hysterical MSNBC reporter, pointing at alleged civilian corpses as irrefutable proof of Israeli war crimes and doubtless unaware that under international law a party that fights from among the civilian population and locates military targets in their midst is responsible for those civilian deaths, is his confusion so distressing. For it demonstrates how great is the burden that Israel must overcome with respect to international public opinion.

ISRAEL IS HYPER-SENSITIVE to international opinion. And that hyper-sensitivity might one day prevent it from taking the steps necessary to survive. The IDF operates under more restrictions than any other army. Every military battle plan contains a legal analysis of the legitimacy of every potential target in Gaza and the circumstances under which those targets can be attacked.

According to news reports, after the recent ceasefire went into effect, Israeli troops were told that they cannot even fire at a rocket crew preparing to launch a rocket at Israel, without permission of a senior commander, and that they must permit Gaza's farmers, or those posing as such, to proceed right up to the border fence.

The success of Iron Dome allowed Israel to pursue a calibrated policy in Operation Pillar of Defense. But it is easy to imagine a scenario in which both Hamas's and the larger and more powerful Hizbullah arsenal were turned on Israel's major cities and high value targets, like the Haifa oil refineries and offshore gas rigs. They could overwhelm Iron Dome's current capacities.

In such a situation, which could also involve a ground war on one or more fronts, Israel would have no choice but to bomb with little regard to civilian casualties in order to stop the missile fire as quickly as possible. Worries about international opinion would have to wait to ensure there will be a tomorrow.

For more articles by Jonathan Rosenblum, see Jewish Media Resources

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Mighty Garnel Ironheart said...

I think Israel's response should be proportional. Next time a rocket from 'Aza lands in a populated area in Israel, Israel should lob a missle right into one of their shopping malls.

Daled Amos said...

Israel did not adopt Charles Krauthammer's suggestion, so they are unlikely to adopt yours.

On August 19, 2005, Krauthammer wrote about Settling In for a Long Wait:

"Israel should announce that henceforth any rocket launched from Palestinian territory will immediately trigger a mechanically automatic response in which five Israeli rockets will be fired back. There will be no human intervention in the loop. Every Palestinian rocket landing in Israel will instantly trigger sensors and preset counter-launchers. Any Palestinian terrorist firing up a rocket will know that he is triggering six: one Palestinian and five Israeli.

Israel would decide how these five would be programmed to respond. Perhaps three aimed at the launch site and vicinity and two at a list of predetermined military and strategic assets of the Palestinian militias."