Kevin Heller on the proportionality question
Another interesting take. Note that Heller specifically addresses what many of the comments here are about: the claim that you need to take into account Hamas’ bad behavior when it comes to proportionality. Not so says Heller:
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.
January 6th, 2009 17:31
I made this argument to you in a prior thread in terms of the appropriate ratio to look at, but further argued that it was necessary to assure that the ratio was accurate (ie. military targets weren’t counted as civilians) and that Hamas was held responsible for those Palestinian deaths that it was responsible for (ie. such deaths should be left out of the ratio and I included deaths like those of the Rayan family and “friendly fire” and “work accident” deaths in that total to be excluded). I would further argue that civilian deaths caused by Hamas military action in civilian areas or secondary explosions of their weapons depots in occupied areas should be excluded from the ratio as Hamas’ responsibility. After all, it is Hamas that is gaining the military advantage by those very civilian deaths.
It should be noted that despite laying out the framework for that argument, Mr. Heller never really applies the rule he states. This is because he is incapable, at this time, of determining the military advantage gained by Israel in any particular attack. Presumably, for instance, a strike that destroys 50 missiles, 100 rifles, and 100 mortars, makes Israeli troups and civilians exponentially safer in the short term. Moreover, if depriving Hamas of those weapons shortens the military campaign and leads to a more stable and lasting truce, it could, conceivably, save quite a few more lives than were taken by the incident.
January 6th, 2009 17:35
Paul, it seems quite convenient to be able to use the “we prevented exponentially more civilians” retreat here, but I’m not sure it is warranted. It’s not falsifiable. You might be absolutely right. That last rocket Hamas was about to send over could contain some biological agent that was going to wipe out 10k Israelis. Or, just as likely, it was a Qassam rocket that was going to land in an empty building (because Israel is good at vacating prior to attacks). So basically you’re giving Israel an out that can never be empirically shown, one way or the other.
The only thing that will be shown in the near-future is if any of these civilian casualties were worth it. Bracketing off questions of who would replace Hamas, it is simply quite difficult for me to think that that it will be. Surely even you don’t think we’re going to see sustained peace from all this violence, right? I mean even Israel doesn’t believe it will.
January 6th, 2009 17:43
I think you are looking at my point a little too narrowly. I think there is a reasonable argument that the failure to attain a true victory over Hamas in this instance could lead to low level warfare over a period of years that will imperil hundreds if not thousands of Israelis and their children over that period, particularly if Hamas is able to maintain or increase its cache or longer range weapons.
Things did not go well for Israel in the North in 2006, but there has been no rocket fire, nor have there been any further kidnapping attempts (yes, there had been rockets and kidnapping attempts prior to the successful attempt that triggered the crisis) and, if UNIFIL is successful, that border could remain quiet for some time to come. I don’t think it’s unreasonable to believe that a decisive military victory on this occasion could lead to a substantial period of calm going forward. Moreover, I don’t think it is unreasonable to believe that a decisive victory on this occasion could substantially undermine Hamas’ increasing capacity to cause civilian casualties at a greater range and effectiveness than they had demonstrated prior, but had clearly attained the capacity for and were continuing to strengthen.
January 6th, 2009 17:47
But Paul, don’t we need something a bit stronger than “it is conceivable” in order to justify the killing of civilians? I certainly think so.
I will give you that the Lebanon situation has improved since the summer of 2006. But do you expect that to last forever? I certainly don’t. And if it doesn’t last forever, I do think that it calls into question whether or not the civilian deaths in that conflict were “worth it.”
January 6th, 2009 18:02
Well, I don’t want to arrogantly proclaim that something is likely when reasonable minds such as your own could disagree, but suffice to say, I feel that “probable” would be a a fair characterization of Israel’s view of that likelihood. With regards to Lebanon, it doesn’t have to last forever to be a success or justified. In this region, anywhere from 5-10 years of calm may be reasonably considered a substantial improvement over the status quo ante. Moreover, it is entirely possible that, had Israel been allowed to pursue their objectives to a more definitive conclusion, that even longer term security and peace could have been the outcome.
January 6th, 2009 18:05
So you think Israel thinks it is probable that these attacks are going to create some kind of sea change among Palestinians and they’re going to throw Hamas out for a more moderate government? Isn’t that what would need to happen in order to have conceivable peace?
I don’t know many people that are arguing the above scenario has much of a shot of happening. And I’d be surprised if Israel thought so.
January 6th, 2009 18:28
No, I think that they think, if they are allowed to, that they will substantially degrade Hamas’ ability to launch rockets and other terror attacks and establish either their own presence in Norther Gaza or an international presence that will minimize the ability of terrorists to continue aggression against Israel going forward.
If, as I and others allege, Hamas is irredentist in its desire to destroy Israel (include IJ, if you’d like, as well, and similar groups) and, as you allege, they are undefeatable (ie. no matter what you do, they will eventually bounce back to threaten Israel), then you are left with only three choices, tolerate indefinite and increasing (in terms of quantity and capacity to harm) terrorism as their capacity increases and the attendant increase in Israeli casualties, evacuate the South and cede it to Hamastan (I don’t think that would embolden them to continue/snark), or Israel needs to seize control of Gaza indefinitely. I prefer to think that Hamas can be defeated and that your belief that they can somehow be reformed or marginilized over time is naive and certain to result in greater misfortune for civilians in Israel.
January 6th, 2009 18:42
You didn’t provide the option that I would choose: Recognize Hamas as a real government and begin to socialize it into the world that real states operate in. In the international system if you want something, you negotiate in very stylized environments. Israel should work to socialize Hamas to that reality, not work to pretend they don’t exist except for the rockets that come over.
January 6th, 2009 18:43
You still haven’t answered the basic question though. You defeat Hamas. Now what? Who takes over? And are they better or worse?
Why would Palestinians, having just had their government destroyed by Israel, elect a pro-Israel government? I don’t see the logic… Have we ever known Palestinians to simply capitulate?
January 6th, 2009 18:49
It’s not necessary to have a pro-Israel government. It’s enough to have a rational government who is deterred from aggression against Israel or a sufficient Israeli or international presence to suppress terror attacks. An anti-Israel government that was willing to negotiate on a peaceful resolution of the conflict, even grudgingly, would be a bonus. The goal is to stop the rocket fire and secure the safety of Israel’s southern residents, not to install and Israel loving puppet government. Japan, Italy, and Germany seemed to get the point after they were disarmed in WWII.
January 6th, 2009 18:49
You haven’t answered the basic question either. What should Israel do and what would Hamas’ response be in your opinion?
January 6th, 2009 18:50
Go read Landes. I don’t think that Hamas can be socialized.
January 6th, 2009 18:51
At least not without unacceptable losses to both sides over a long period of time.
January 6th, 2009 18:53
But what do Japan, Italy, and Germany all share that modern-Palestine does not?
January 6th, 2009 18:54
Let me ask you something, do you believe that Hamas wants to see Israel destroyed? Or do you think it is a rally-around-the-flag type of rhetorical device?
How about Iran?
January 6th, 2009 19:06
With regards to Hamas? Yes. Absolutely. I believe what they repeatedly say and have acted in accordance with.
With regards to Iran? Depends. The vast majority of Iranians, no. Mahmoud and his hard cadre, very likely, but would prefer to work through proxies and is relatively rational (ie. subject to deterrence, but doesn’t currently sense any deterrence to working through proxies other than financial limitations and the proxies own cautions – ie Hiz is at a point politically in Lebanon that it doesn’t want to alienate the rest of the country or confront Unifil to launch a new offensive.)
January 6th, 2009 19:08
As to what Italy, Germany, and Japan share with modern Palestine (or more appropriately Hamas)… An implacably genocidal religio/political ideology, though, unlike the axis, Hamas’ ideology is also apocolyptic and suicidal.
January 6th, 2009 19:22
An interesting article from former NYT Middle East Correspondent Youssif Ibrahim:
http://www.jewishworldreview.com/0706/ibrahim.php3
I don’t claim that he speaks for the Arab world, but I do think his position is better represented in the Arab world and the Arab press than the Western media may care to admit and makes a lot of sense.