Proportionality and Disproportionality: A Guide to Arguments about Gaza

A ceasefire between Israel and Hamas seems imminent, although how long it will last is anyone's guess. One thing is fairly certain: even as the guns fall silent the charges and counter-charges of violations of international law will continue. Already the airwaves are full of talk that Israel's "disproportionate" response is a flagrant violation of international law. The Palestinian Authority has claimed, in addition, that Israel's actions constitute "aggression against the Palestinian people," and a "crime against humanity. "(See CNN's Jim Clancy's interview with the Palestinian Authority's Ambassador to the United Nations, Riyan Mansour, January 3, 2009). In this climate, it might be wise to take a deep breath and consider international law not as a propaganda tool but as a guide to reasoned behavior. Here is what such an approach reveals:

1. In international law, the concepts of proportionality and necessity are intertwined. If the action is not necessary for a legitimate military objective (security against armed attack), then it is inherently disproportionate. Was Israel's response to more than a thousand rocket attacks by Hamas, which were bound to continue upon Hamas' refusal to renew the ceasefire with Israel, a legitimate military objective?

In answering this question, context is all important. Hamas had declared that its objective in sponsoring suicide bombings in Israel, and more recently in the indiscriminate use of rockets against Israeli population centers, was nothing less than the destruction of the state of Israel. Some might dismiss this aim as not worthy of being taken seriously. But those who would dismiss Hamas' stated objectives do not give the organization sufficient credit for its commitments and abilities. Hamas does not operate in a vacuum. It is supported ideologically and militarily, if not directed, by the mullahs who rule Iran. They have sworn that the destruction of Israel is a top priority. The international community has recognized that they are developing nuclear weapons to give them that capability. Iran's proxy troops are Hezbollah in Lebanon to the north of Israel, with a capacity to fire tens of thousands of Iranian manufactured rockets wherever it chooses; and Hamas in Gaza to Israel's south, able to direct sufficient indiscriminate firepower to intimidate a million Israeli citizens into living lives that vacillate between air raid sirens and the rush to shelters. In this context, an Israeli military response to Hamas' decision to let the rockets rain again was clearly justifiable.

2. The fundamental aim of international humanitarian law is to draw a distinction between combatants and non-combatants. In its authoritative ruling, Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (1996), the International Court of Justice held that: "states must never make civilians the object of attack and must consequently, never use weapons that are incapable of distinguishing between civilian and military targets." Moreover, it prohibited employment of weapons for "uselessly aggravating their [civilian] suffering."

Applying these principles, did Hamas needlessly cause large scale civilian suffering? Did Israel needlessly cause such suffering?

Clearly, Hamas' attacks intentionally drew no distinction between combatants and non-combatants. Indeed, Hamas deliberately targeted Israeli civilians. By various accounts, Hamas also deliberately placed and fired those weapons from schools and public areas, thus endangering Palestinian lives. Accordingly, the use of such weapons by Hamas was a war crime. It is immaterial whether Hamas is a state or non-state: either can be guilty of war crimes. Nor, of course, is it any defense to the firing of those weapons to contend that they were undertaken in response to Israel's economic "boycott" of Gaza. First, there is no international law requiring one state to open up its borders for commerce with another state or entity. Secondly, by Hamas' own admission, it is in a state of war with Israel and economic boycotts are the least offensive measure one can take in a state of war.

With regard to Israel, were it demonstrated that particular Israeli air strikes "uselessly" aggravated Palestinian civilian suffering, and that the commanding officers knew or should have known this, they would be subject to prosecution for war crimes. But the particular should not be confused with the general. It is irresponsible to speak of "aggression" in the context of self defense against rocket attacks, or to contend that such a response is a "crime against humanity."

3. International law requires that peaceful means must be exhausted before resort to force. Assuming, although highly questionable, that Hamas merely sought an end to Israel's occupation of the West Bank rather than Israel's destruction; might Israel not have avoided Hamas' termination of the ceasefire if Israel had eased up on its territorial demands in order to resolve Israeli-Palestinian differences? But neither Israel, nor the Palestinian Authority, was willing to make important concessions. Moreover, all serious observers knew that a massive Israeli strike would inevitably follow the continuation of rocket attacks. Thus, even looking at Hamas' actions in the most charitable light, peace is not achieved through the barrel of a gun or the plume of a fired missile.

4. Finally, international law does not require the least destructive military response, only the response least destructive to civilians. As the war came, Israel was left with the daunting responsibility of protecting its own citizens while avoiding useless Palestinian suffering. Could this have been accomplished by a less destructive alternative to Israel's bombing in the middle of Gaza- i.e. by cutting of Gaza's access to weapons in the south of Gaza by making that border impenetrable? This is a question of tactics and means and until the smoke of fire clears we will never know the answer as to whether the building of large underground barriers (in Egypt with Egypt's permission) was a viable alternative. Regardless, it would be incumbent upon anyone arguing that Israeli military and political commanders knew of viable alternatives (short of surrender) to stopping the rocket attacks to demonstrate that, in fact, such alternatives existed.

Allan Gerson is the author of Israel, The West Bank and International Law. He served as counsel to the US Delegation to the United Nations and currently practices law in Washington, D.C.

Comments

[Fireslayer]

All the legalistic sophistry in the world will not hide the murderous nature of the IDF's offensive.

My curiosity is tweeked by the nature of the censorship which is taking place from this post. Is it the author who is jealously guarding his specious verbage?

Your assumption that the conflict between the IDF- the true rulers of Isrrael, and Hamas, the elected idiots of Gaza- began with rockets fired after Israel continuously refused to break the illegal and amoral blockade is so biased as to clearly deny any useful purpose to this noise- except IDF apologetics and rationalized murder.

[Okay]

This guide was needed two weeks ago when everyone started arguing. I appreciate the post. It clarified much. At least from a legal perspective.

[strawberryjulius]

Mr. Gershon,

Israel bombed a UN facility which was a shelter for palestinian civilians, some were children. The UN gave Israel the coordinates for this shelter and Israel bombed it anyway. 30 civilians were killed. How is this not intentionally targeting civilians? How is this not breaking international law? How is this not a war crime?

[BubbaC33]

This facility had been used as a launch site for missle attacks. That it had a UN sign on it makes no difference, it was a military site for Hamas.

[Jezreel]

"This facility had been used as a launch site for missle attacks. That it had a UN sign on it makes no difference, it was a military site for Hamas."

Ans: In 2007 while it was abandoned by the UN during a time of relative peace. When it was fired on this week there were NO, I repeat, NO militants, freedom fighters or terrorist, take your pick either at or near the facility.

[ajax2]

Mr. Gerson, please expand this analysis into 'collective guilt' and the purpose of a siege. There seems to be some confusion on this.

[xxnounxx]

i wish people who are intersted in facts,really watch what i posted ,its very educational,and fair,and tell the truth and nothing but the truth.

[UltraClassic]

Allan, you write with common sense. But my friend, this is not a forum where common sense has the floor.

I ask anyone one here one question, what country in this world would put up with a band of thugs launching over 3,000 rockets into it's country with out some kind of reaction? The answer of course is none but Israel is suppose to "bend over and take it."

Hamas needs to wise up. It's going to get the same result every time it pulls this stunt. But maybe, this is the result Hamas want's.

[Paul]

Yes - Hamas, in fact, gains politically from the Israeli military response. Gazans are seething mad at Israel and will support any handy organization that calls for the elimination of Israel. Just as Hezbollah gained from the war in Lebanon two years ago.

The Israeli military doctrine is in bad need of overhaul - it has consistently failed to deliver on its stated goals.

[maddie0001]

So people under an illegal occupation don't have any rights? As far as I'm concerned, once a country embarks on an ILLEGAL occupation the people being occupied have carte blanche. Also, if I were being embargoed, starved and liable to be assassinated at will I wouldn't give a hoot about intentional law. I don't find fault with what the ANC did, with what the underground did during WWII, any slave revolt ever or with what the Native Americans did during the American Conquest.

[sebastm]

Gaza has not been occupied for a few years. It has been under Hamas/Palestinian control. Did you know that after Israel pulled out of Gaza and the West Bank it was Abbas who would not let the refugees settle? A lot of the Palestinian people could have started to settle and not be thrust into their small camps, but their own leaders wouldn't allow it! They are repressed by their own leaders. If enough of the common person would stand up and say they wouldn't bomb the heck out of whatever unsuspecting people over in Israel they wanted, I'm sure free movement would happen quickly. If your life was in danger all the time, you would want the same action taken for the safety of your family. At least until a time when you knew that that your neighbors wanted to peacefully coexist with you.
The lands there have been taken over so many times throughout history that it is like saying you should give your own house (you might not own one or be in college) back to whatever Native American tribe once lived on your land.

[SantaFeScribe]

And our country -- America -- was founded on revolution. "When in the course of human events..." begins our Declaration of Independence.
I find this article tedious; it reminds me of the classic inanity of sitting around discussing "how many angels could dance, sit, whatever on the head of a pin?". It also lacks CONTEXT in terms of ME history and the last 61 years from a Palestinian perspective --as well as some ground-truthing of its 'facts'.
I'm not sure of the writer's qualifications - for this article -- making broad-brush generalizations as if they were TRUTHS. In addition, I question many of his assumptions, as I'm acquiring some knowledge on the issue from alternative news sources, aka non-mainsream media.

[QA]

This article is chequered with flaws...couched in pseudo-legalise . Bit like those TV-ads that use an actor with a white coat to sell household products. This is just the comment section and a whole article is required to go through all of them. I am not a lawyer and even I found one!

For example:

"Nor, of course, is it any defense to the firing of those weapons to contend that they were undertaken in response to Israel's economic "boycott" of Gaza. First, there is no international law requiring one state to open up its borders for commerce with another state or entity."

Israel is an occupying power. It controls the surrounding sea coast, air space and enters Gaza at will. As an occupying power Israel has an obligation under the 4th Geneva convention to take care of the welfare of the civilian population.

[BubbaC33]

Israel does not have an obligation to open its border to Gaza.

[Eclectic Radical]

Excellent article.

The best argument I have seen for the 'horrific disproportion' of the Israeli response to Hamas rocket attacks breaks down to this: more Palestinians are being killed than Israelis. The fact that the Hamas rocket troops are not as good shots as the Israeli Defense Forces does not obligate Israel to sit and let themselves be shot at waiting for Hamas's aim to get better.

I understand sympathy for the Palestinian people, but the Palestinian population overwhelmingly elected Hamas to power and Hamas has used that power to attempt to kill Israelis. There is a point where sympathy and common sense must part ways. This is the natural outcome of Hamas's rise to power in Gaza. It was inevitable from the day Hamas won the Palestinian Authority's elections. Eventually there will be a ceasefire, but as long as Hamas remains in power that ceasefire will be temporary.

The sad fact is that there is no legitimate Palestinian leadership, enjoying broad political support, that wants 'peace' short of a complete abandonment of Israel by the Jews. The Palestinians have had several chances in history to 'win' their 'war of liberation' and they have walked away from every opportunity.

[MikePatronSaintofTruth]

Mr. Gerson chooses to look at the Israeli-Palestinian conflict through a prism labeled "international law" --while ignoring the honest history of the this conflict. He seems more interested in academic justifications for Israel's actions than any assessment of the morality of these actions. The fact is that the people in Gaza live in various REFUGEE camps. Why are they called refugee camps? Because the Palestinians are refugees from the war waged by European Jews to force a religious (Jewish) state upon the Palestinian people. They have been living in refugee camps for over 60 years. Mr. Gerson is likely to respond by saying that Britain and western powers approved the creation of the state of Israel. So? Does that make its creation moral? Fair? Just? Of course not. For many years Albert Einstein was opposed to the creation of the state of Israel. Later, he agreed to support the establishment of the state, but only agreed to do so so long as there was great heed paid to the people living there at the time --the people who today we know as Palestinians. Well, I think Einstein would be appalled at Gerson's writing... and the writings of so many other apologists who are incapable of looking at the questions of morality surrounding the creation of the state of Israel. I have a challenge to Mr. Gerson: Please explain how the forced imposition of a Jewish state on non-Jews in Palestine was moral.

[Eclectic Radical]

The moral questions about the creation of the state of Israel are complex, two-sided, and absolve no one of their fair share of blame. The propaganda which you spout is based on half of the truth, from the perspective of the losers of the 1948 war. It is not the entire truth and some of its theses are false. The United Nations, and not 'Britain and the Western Powers', approved the Palestinian Mandate. To claim otherwise is only half the truth. Most Palestinian Jews at the time of the Mandate were born in Palestine, not 'European Jews'. To omit that fact is only half the truth. As many of the 'Palestinian' Arabs were descended from Arab immigrants to Palestine. To omit that fact is only half the truth.

[omo]

The people of the United States elected the Bush administration to power (or not, but that is not the point here) and the Bush administration has used that power to kill Iraqis. If Iraq was next door to the US rather than conveniently located halfway around the world, I would think that Iraqis would be lobbing crude rockets over the border into the US in response to the 1991 bombings of water treatment and power plants, twelve years of brutal sanctions and the Shock & Awe (who thinks these names up, anyway?) campaign and subsequent actions . . .

[BubbaC33]

The rockets and missles utilzed by Hamas are not crude or homemade, they are a sophisticated weapons system Hamas seems unable to use in a proficient manner. Why should Israel allow them time to gain a bet6ter working knowledge of the missles?

[FairTalk]

Part 1

Your first example, of proportion, dwars a false conclusion, perhaps because yur theses, first paragraph, contains false facts?

You have listed 4 points, which are Israel's narrative, and ignored that of the Palestinians. In my opinion, that is a totally biased analysis. But, I se you are into law, so what I see you doing is laying out yory position, as though you were an attorny defending Israel. That is all good and fine, Israel may need attornies if they are brought up on war crimes, which I do hope wqill happen.

Here are a few points of law that you may have overlooked...

Israel conspired with the US in a covert opperationb to take out the democratically elected government, Hamas, chos3en in a fair election by the Paestinians.

Israel blockaded Gaza in effect put Gaza under siege.

Israel has targeted news media as well as international UN and other relief workers. Now I know you will deny it, but that denial is your POSITION, not to be confused with the true facts.

Israel has incrementally taken more and more land and homes and shops away from Palestinean people, effectively removing them, and expelling them from their homeland. They now live in the Gaza Ghetto as refugees.

israel refused to allow the refuggees to leave the gaza Ghetto, chosing instaed of conducting a war in crowded urban spaces, where Israel's top leaders cooly admit that there is no way to avoid civilian casualties. Shooting pigs in a barrel.

[JacksonJones]

If you are elected with a policy of genocide, does that make genocide ok? Hamas could have agreed to honor past agreements and not to wage war on Israel. They decided they'd rather "keep it real" (according to their charter) than stop fighting.

I can't seem to recall any wars that were fought under the rules that you seem to think apply to Israel.

[FairTalk]

Part 2

Livini then tells the press in an interview that we should not judge Israel by the pictures that we see, but by their values? Prey tell, where is that in Internationl Law?

I for one, am pleased that the UN is demanding an independent investigation, as they lay the foundation for trials surely to come.

I know that in Israeli law, the old testiment, Jewish law, is the law of last resort. So, are the 10 commandments not part of the Law? What about thou shalt not covet, thou shalt not steal, thou shalt not bear false witness?

take care, and do unto others...

[omo]

Ah yes, the "what you see and what you know are two different things" approach. My husband's family relies on it regularly . . . to them it makes perfect sense and they find it inconceivable that for those of us on the fringes of their insular little family unit it is absolutely crazy-making . . .

[raymondh]

Mr. Gerson,
You framed the present conflict as Israel's respose to Hamas attack. Please, why don'y you speak of Israel's actions during the 6month ceasefire? I guess depriving the Palestenians from food, fuel, jobs and freedon to move around their own land is not a war that imposed and waged by the state of Israel! Can you be objective, even a bit?

[TimSearl]

According to the NeoCons it is all about Iran (which is a reason not to trust Mr Gersons views on anything- fallacy or no). Well Iran is backing Hamas as a public relations operation with the Arab world. This Iran hopes will mean that members of the Arab world will be less than anxious to collude with the US against Iran. Alan Gerson is spouting that Thomas "believe me this time" Friedman argument about Iran hegominity. And how an organization armed with bottle rockets is going to bring down the nuclear armed Israeli state. Clearly, to all but the most stupid, Hamas is not going to destroy Israel.

It seems much more rational to look at Iran's efforts as a means to destabilize the corrupt US puppet states and increase any potential downside that accompanies an attack on Iran. With the US in Iraq and Afghanistan (and Kuwait) and UAE why wouldn't they see it necessary to increase their political and regional strength. As it is, for Iran, supporting Hamas (which is a Sunni organization) demonstrates the corruptness of the Egyptians and the other "moderate" (moderate i.e. corrupt regimes that imprison and torture and execute their own people) Arab states. The now labeled "moderate" Fatah has failed the Palestinian people, and it was demonstrated that moderation only led to more repression. Because of that, Hamas was born.

Finally, Which do you think is the most popular government in the Gulf states, right now? No not Egypt not Saudi Arabia......

[Clavis]

Gerson's column is a plea for fairness, with the assumption that the previous pleas for fairhness for the Palestinians is in and of itself TOO FAR. In other words, Gerson's entire piece assumes that we really have swung the pendulum too far in terms of criticizing Israel.

Really, Mr. Gerson? You think the criticism of Israel has been too harsh? Unfair? Dare I say... DISPROPORTIONATE?

Maybe people just don't want to see innocent people get hurt, and when Israel responds to any calls for moderation or peace with "HEY, SHUT UP! ISRAEL HAS THE RIGHT TO DEFEND ITSELF! HOW WOULD YOU LIKE IT IF YOU GOT BOMBED EVERY DAY?!?!?!", that's not a rational defense. That's a diversion, and an emotionally manipulative one at that.

If Palestine invaded Israel after embargoing and occupting it for a while, and started blowing up civilian buildings, and defended itself by claiming that Israeli militants were using Israeli civilians as human shields, guess what? We'd *still* criticize the Palestinians. Don't kid yourself. People want the fighting to stop. All of it.

[Eclectic Radical]

Of course people want the fighting to stop. However, one side cannot unilaterally declare peace if their enemy continues to attack them. Israel has had no chance to, on its own accord, end hostilities in a permanent or meaningful way.

The Palestinians, on the other hand, have. Yasser Arafat walked away from a Palestinian state in Oslo and Mohammed Abbas has not managed to accept one since. Arafat could have made peace, unilaterally, at the political cost of aligning himself with Israel against Hamas and declaring Hamas the criminals they were. He was unwilling to do so.

Before you tell me that Hamas was 'democratically elected', consider whether Hamas would have been democratically elected if an independent Palestinian state with honest government existed alongside Israel without interference from Israel. The fault that such a state does not exist lies with Palestinians who have refused to accept such a state in favor of a quixotic dream of sending Azhkenazic and Sephardic Jews back to Europe, North Africa, and the United States and converting Mizrahic (Arab) Jews to Islam.

[TimSearl]

Given that most "legal scholars" in this country claimed to believe that the attack of the US on Iraq, which has resulted in more than 200,000 dead Iraqis was legal, I question any US based "legal expert" on international law. There is a clear reason why this country (and Israel) has not signed up with the ICC- it is because they wish to avoid the embaressment of Ex presidents, Secretarys of State and Defence Secretaries being sent to the Hague. I do not know what Allan Gerson's credentials are (his bio as here is very - thin). But would I trust him? I think not. There are plentiful instances of war crimes committed by Israelis, or crimes against humanity, but .... clearly there is no will here (or else where) to bring those people to Justice.

[Fein]

Prior the U.S.'s economic collapse, we were able to forestall int'l legal action and sanctions against us and our 'cronie states' through economic clout.

Unless the U.S. wishes to return the world to the middle ages by starting a world war (as they appear to be considering, given the Georgia fiasco) economic power will prevail.

Bad news for countries that depend on our Vetos to pursue their seedy objectives.

[ballsmuch]

wow - nice logical fallacy you got working there

if X was wrong then, X must be wrong now

regardless, most US legal scholars don't agree the Iraq war was legal. there is the issue of constitutionality and international law. both have their disagreements. according to the constitution, only Congress can declare war; however, the passage of the War Powers Act (and the 2002 Congressional authorization) allow the President to commit troops to war. internationally speaking, the UN allows member nations to act in self-defense; however, one can rightly argue that the Iraq war was not about self-defense.

[TimSearl]

I didn't say it was wrong, I said I didn't trust it. So don't put words in my mouth. Read what I said. Still, why would I trust anyone (never mind a lawyer), with an axe to grind, without having a very clear idea as to their integrity and their ability to dispassionately interpret the law? The posting of this opinion is clearly serving political aims.

In any case as no Israeli will ever be put on trial for comitting war-crimes, any more than the perpetrators of the Iraq war will ever be put on trial, it is all a pointless exercise in righteous indignation. Many of the acts of Israel against Palestinians are criminal, but there is no penalty. As the pro Israeli argument is that Palestinians indiscriminately attack with their weapons, the obvious answer to that is give Palestinians better weapons.

My answer (which is cheaper) inorder to avoid the assymetric warfare is that Israel should be forced to smuggle its food and weapons through tunnels - no more numerous or more capacious than the Palestinians have. Then both will cause equal (and far less) death on each other - indiscriminately or discriminately.

[harleywinks]

Excellent article. Thank you Mr Gerson.

[bayside]

Is there hope? It is certainly difficult to see past the horror of Gaza at this time. There is a grim joke about a frog and a scorpion who meet at the edge of a river. The scorpion asks the frog if it can ride on top of the frog to the other side of the water. The frog responds, "Only if you promise not to sting me." The scorpion agrees and crawls on the back of the frog. Mid-river, the Scorpion delivers a lethal sting to the frog. The frog, gasping for breath, asks: "Why did you sting me? You'll die too because you'll drown as I sink to the bottom." The scorpion responds: "Because this is the Middle East."

Lets us hope that Bush like ,neo con Netanyahu does not get elected..I believe israel has the same problem we in US have most want peace but neo cons dont , they want perpetual war so they can divide and conquer and get rich doing it..

May the Obama administration and Hillary Clinton have the courage to bang some heads on both sides and provide a future of opportunity and a future without the threat of more blood and death to the young Israelis and Palestinians.

They deserve to live in peace

[TimSearl]

If Israelis wanted peace they wouldn't elect the leaders they elect. They want more land, which is why in the West Bank settlements have grown with the US backed Fatah PA. Hamas is popular because moderation has only brought Palestinians more misery.

[BubbaC33]

The Israeli government has given back the majority of the land taken in the 1967 war. The territories it still holds are necessary for the strategic depth a nation surrounded by enemies requires.

[JacksonJones]

Israel elected labor gov't after labor gov't running on the platform of the 2 state solution, leading up to the Camp David/Taba discussions under the Barak administration. The doves dominated Israel for years, leading up to the evacuation of Gaza on the assumption that it would demonstrate its intentions for peace. But they got war instead, and now labor is on the ropes. Israelis are feeling like they were fooled into thinking that the Palestinian factions, contrary to what they say in their charters and in public speeches, were really pragmatists who would prefer peace to neverending war. Now they are feeling like "fool me once, shame on you....."