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On Proportionality

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Denunciations of Israel's invasion of Gaza have been widespread, and some of them have used language that verges on the hysterical, using terms like "genocide" (as Mahmoud Abbas did on January 6th in calling on the UN to intervene). The often-heard claim that the IDF is deliberately trying to kill as many civilians as possible is simply ludicrous. The death toll among civilians -- presently approximately 450 and climbing -- is horrendous, but Gulbuddin Hekmatyar's rocket and artillery attacks on Kabul killed tens of thousands of people. Those are the kind of numbers that one can produce by the use of artillery fire into a city if one really wants to.

One word that is frequently heard is "proportionality." "Israel has a right to defend itself" says one side. "Not at the cost of so many civilian deaths," says the other, "and besides, Palestinians in Gaza have rights of self-defense, too." "No cost is too high to prevent rockets landing in Tel Aviv" comes the rejoinder. How do we evaluate these claims?

The traditional approach to these kinds of questions is found in "Just War" theory, a tradition with roots as far back as Aquinas, early modern roots in the writings of Grotius and Burlamaqui, and modern treatments by (among many others) Michael Walzer and Judith Thomson. Currently there is a wave of literature urging a revision in categories in response to the phenomena of asymmetrical warfare, the proliferation of non-state actors, and long-standing low-intensity conflicts, all of which produce what Wittgenstein called "category confusion" when one tries to apply simple principles of distinction between combatants and non-combatants, or even peace and war. Consider Article 51 of the UN Charter: it guarantees a right of self-defense in the event of armed attack, but speaks only of a situation in which one nation state launches an attack against another.

As a result, these current writers tend to treat the classical categories of just war theory with suspicion; Michael Walzer himself cast doubt on the adequacy of traditional categories in the January 8 New Republic. Walzer pointed out that one traditional test of proportionality -- the one most often cited by Israel's supporters -- looks ahead to the risks of future harm; this is the argument that justifies harm to prevent greater harm. "Another six months of the same kind of cease-fire, which is what many nations at the UN demanded, and Hamas would have rockets capable of hitting Tel Aviv. And this is an organization explicitly committed to the destruction of Israel. How many civilian casualties are 'not disproportionate to' the value of avoiding the rocketing of Tel Aviv?... The answer, again, is too many." What Walzer is pointing to is the inherent boundlessness of an argument for proportionality that includes the element of preemption. Call it the Cheney Mushroom Cloud Theory of Proportionality: if there is the possibility of a future risk of attack, a proportional preemptive operation is one that causes no more harm than the hypothetical future attack might have caused in a worst-case scenario.

Presumably for that reason, formulations of the proportionality principle in international law have eschewed the classical arguments in favor of an evaluation of means and ends. The Hague Convention of 1907 (Section 23c) prohibits causing "unnecessary suffering." The Geneva Convention of 1977 creates a more specific test: Article 51(5) defines prohibited "indiscriminate attacks" to include the following: "a) An attack by bombardment by any method or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village, or other area containing a similar concentration of civilians or civilian objects; b) An attack which 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."

So there are at least three distinct ways of thinking about proportionality (none of which, incidentally, is usefully analogized to an individual's right of self-defense); the test of "unnecessary" collateral damage; the test of imaginable future harm the risk of which might be reduced; and the Article 51(5) test that balances anticipated military gains against civilian cost and imposes what might be called a principle of precision in the design of military operations. Each of these tests is applied in two distinct ways: jus ad bellum, the justification for initiating military action which essentially becomes a test of what triggers a right of self-defense; and jus in bello, the test of proportionality applied to the choice of means employed in a military operation. These are separate tests. Unprovoked -- or insufficiently provoked -- military attacks are war crimes no less than excessive civilian casualties. Conversely, inflicting excessive civilian casualties is not excused by the claim "they started it." I have already suggested that analogies to personal conflicts are weak here (what is the equivalent of a duty to retreat, for example? "We have no other homeland" said an Israeli spokesperson, as though the people in Gaza all maintain multiple addresses and just happened to be vacationing there when Operation Cast Lead began). But the distinction between jus ad bellum and jus in bello is not hard to understand even by a weak analogy: while it is a crime for someone to throw a rock through my window, that does not justify my spraying the street with automatic weapons fire.

How do both Israel and Hamas come out looking if we apply these kinds of tests to their actions? To try to make sense of these arguments, I propose that we divide the period of Israel-Hamas interactions into two distinct periods: 1) the period prior to Hamas taking power in Gaza; and 2) the period subsequent to Hamas' accession to power. Many of the descriptions of events are contested, to be sure, but that is always the case. (It is almost impossible to make sense of any case without a timeline of events: there are several available on the Web that may be useful -- you cand find a few here, here, and here. [Please note that each of these timelines is selective, and the principles of selection at work in each demonstrate their particular ideological biases.]

1) Prior to Hamas' election.

Since its creation in the late 1980s, Hamas engaged in a wide range of violent attacks against Israeli civilians, most notoriously by means of suicide bombings but also in the form of rocket and other attacks. Israel responded with various measures, including a program of targeted assassinations of key Hamas figures. Since these were carried out by means of air strikes, there were frequently civilian casualties involved.

As far as jus ad bellum (the claim of self-defense) is concerned, it goes without saying that any of the actions carried out by Hamas, if performed by a government, would obviously be an act of war, and justify a military response (for example, under Article 51 of the UN Charter). But there are problems with this simple conclusion. The first potential problem is that in many instances Hamas claimed that its suicide bombings and other attacks were carried out in retaliation for Israeli assassinations of its leaders. The point was not lost on Israeli commentators: journalists like Alex Fishman and Danny Rosenblum and politicians like Yossi Beilin pointed out over and over that each assassination that Israel carried out was followed by a suicide bombing. In November 2001, following the assassination of Mahmoud Abu Hanoud, Fishman--a security columnist who is understood to articulate the voice of the military establishment - wrote "Whoever gave a green light to this act of liquidation knew full well that he is thereby shattering in one blow the gentleman's agreement between Hamas and the Palestinian Authority; under that agreement, Hamas was to avoid in the near future suicide bombings inside the Green Line." (Yediot Achronot, November 25, 2001.) Sure enough, one week later there were suicide bombing attacks in Jerusalem and Haifa. In March 2004 Sheikh Ahmed Yassin was killed by an aerial rocket attack that also killed two of his children and six passers-by; his successor Abdul Al-Aziz Rantisi was killed in a similar rocket attack in April. In September, Hamas responded with a double suicide-bombing attack in Beer Sheva. Are these retaliatory suicide bombings different in kind from those that had come earlier?

Israel, of course, will point out that whatever "gentleman's agreement" (or, later, more formal truce agreements) Hamas might enter into, prior to that time it had launched murderous attacks during the Second Intifadah. Hamas proposed that those were acts "defending" the Palestinian people, and that the failure to distinguish between combatants and non-combatants is based on the same arguments that Israel has used for decades to justify attacks on civilian infrastructure and political authorities. These are unpersuasive defenses. As a matter of jus ad bellum, Hamas' claim of "defending" the Palestinian people as a nation is incoherent for many reasons, starting with the fact that Hamas was not the representative of a nation embodied in a political state. As a matter of jus in bello, Hamas' deployment of suicide bombers to attack civilian targets is obviously a criminal act of the first order.

But what about Israel's response to those attacks, its program of assassinations using means that necessarily resulted in significant numbers of civilian casualties? Keep in mind that there is no tit-for-tat theory of proportionality; the fire-bombing of Dresden cannot be justified by Nazi massacres elsewhere. The evaluation of Israel's actions under a standard of proportionality stands on its own.

Here's where we get that category confusion, again. When a state acts, it acts as a collective, and the consequences of its actions may be visited on the collectivity without distinguishing individual levels of culpability. When a non-state actor acts, we usually think of that actor as an individual, or as the members of a group. It is a form of the supposed conundrum that was being floated in American political discussions after September 11th: neoconservatives accused liberals and traditionalists of thinking in police terms when they should have been thinking in military terms. If Hamas is not a government, then individual culpability is not affected by a collective authority's policies, and the apprehension of guilty individuals by force is an appropriate police measure. If Hamas is a government, then during a period of belligerency the use of military force against its forces is appropriate.

As a matter of jus ad bellum, Israel's assassinations do not seem to fit either model. Hamas leaders like Yassin were not killed in the act of committing an attack, they were killed either as punishment for past attacks (essentially a police justification) or to prevent predicted future attacks (a military justification). As a matter of jus in bello, the civilian death toll involved in firing rockets from jets into a city block outside a mosque is both predictable and intolerable. A policeman who kills the children of murders is itself an act of murder and targeting the children of enemy combatants is a war crime. On the other hand, under the calculus of Article 51(5) causing the deaths of those same children for a sufficient concrete military gain may be justifiable. It remains the case that assassination widely regarded as wrong as a tactic in wars between states - partly because it makes cease-fires very difficult to maintain - but the real point is the necessity of first establishing the appropriateness of applying the military logic. Hamas was not a government ruling a territory within which passers-by on the street can be assumed to be part of a mutually culpable collective; this is the source of the category confusion.

In the pre-election period, then, it seems unassailable that Hamas' acts of terrorism were not justified under a theory of collective self-defense or preemption, and were not proportional to any articulable claim of cognizable grievance. Israel's reactions to Hamas' attacks were defensive, and thus justifiable in the first instance as a matter of jus ad bellum; whether the choice of mean violated principles of proportionality is a complicated question. To find Israel's arguments persuasive here requires reshaping the categories of the discussion, which raises the question: what does that same reshaping of categories do to our assessment of Hamas' terrorist attacks?

2) The period following Hamas' election.

In January 2006 Hamas was elected to power in Gaza. This followed a 2005 cease-fire between the PA and Israel, by which Hamas pledged to abide in September of that year. What happened next is complicated, but basically Israel and the U.S. supported an attempt by the Palestinian Authority to launch a coup which was defeated by a preemptive Hamas attack. This was followed by months of frequently bloody fighting between Hamas and Fatah forces.

At various points, Hamas' leadership appeared to be moving toward an acceptance of Israel's existence within the 1967 borders. As early as 1997, Sheikh Yassin raised the possibility of a "30-year truce" in return for Israel's withdrawal to its 1967 borders; both Yassin and Rantisi later reiterated offers of multi-year truces on the same basis; these were rejected as "insincere." On June 6, 2006 Haniyeh wrote a letter to President Bush, delivered to the State Department by an American intermediary, stating that "We are so concerned about stability and security in the area that we don't mind having a Palestinian state in the 1967 borders and offering a truce for many years." On June 27, 2006 Haniyeh and Mahmoud Abbas' jointy agreed - after weeks of negotiation -- to a manifesto calling for establishment of Palestinian state in West Bank and Gaza, conditional on its acceptance in a July 26th referendum; this was widely viewed as an implicit recognition of Israel's right to exist, although critics pointed out that Hamas had not changed the terms of its Charter. In November 2008, Haniyeh arguably went even further when he declared Hamas' willingness to accept a Palestinian state based on the 1967 borders.

Two days prior to the publication of the 2006 manifesto, however, on June 25th 2006, forces connected to Hamas (there were complicated and overlapping claims of responsibility) crossed the border and kidnapped Gilad Shalit; two other soldiers were killed and three wounded in the same raid. (Subsequent kidnappings by Hezbollah on the northern border led to Israel's invasion of Lebanon.) In response to the kidnapping of Shalit, on June 28th Israeli forces arrested 64 Hamas officials, including elected legislators, and launched "Operation Summer Rain," a military incursion characterized by heavy bombardment of civilian infrastructure starting with bridges and power plants. According to Ehud Olmert the goal of the operation was "not to mete out punishment but rather to apply pressure so that the abducted soldier will be freed. We want to create a new equation -- freeing the abducted soldier in return for lessening the pressure on the Palestinians." (This statement was originally quoted in HaAretz; I have only been able to find secondary sources repeating the statements, as here and here.)

Through the following year the conflict between Hamas and the PA continued to rage, until Hamas took full control in June 2007. During this period there were various attacks by Hamas against Israel and vice verse; also during this period, Israel imposed its blockade on Gaza. It is crucial to recognize that what Israel imposed was a total rather than a selective blockade. Unlike the U.S. blockade of Cuba, which involved preventing the importation of weapons, the Israel blockade applied -- and continues to apply -- to everything, including food, fuel, medicine, construction materials, consumer goods, and even money and electricity. In March of 2008 Israel launched another offensive into Gaza, ostensibly to search for Gilad Shalit, that resulted in more than 120 deaths. In April Hamas offered a truce, that was agreed to on June 18. Hamas spokesmen had indicated for moths that they would consider a long-term cease-firein return for Israel lifting the blockade (see here and here.) As widely reported, the understandings in June was that Israel would at least ease its blockade, that Hamas would participate in talks concerning Gilad Shalit, and that both sides would refrain from military attacks against the other. At the time of its initiation, Ehud Olmert warned that the truce would be "fragile."

The truce lasted for six months. During that time there were numerous events that each side claimed to constitute violations of the terms or the spirit of the agreement. Israel points to four separate occasions of cross-border attacks, extensive smuggling of both weapons and civilian goods through a network of tunnels similar in design to tunnels that had been used to launch attacks across the border in the past (including the kidnapping of Shalit). Hamas asserted that Israel had failed to lift its blockade and that the attacks across the border and occasional rocket fire - far less then before - were in retaliation for Israeli actions on the West Bank. Israeli raids against tunnels in Gaza on November 4 and November 17 were cited as further violations; Israel responded that the construction of the tunnels was a violation of the spirit of the truce. In December Hamas resumed large-scale rocket attacks on Israel, to which Israel responded with Operation Cast Lead.

Do the theories of proportionality and self-defense have any application to these events? From Israel's perspective, one might argue that Hamas' election made it the equivalent of a state actor, meaning that actions taken under its command and control or by those whom it harbors and supports constitute instances of jus ad bellum. There are two categories of such possible acts: the raid that resulted in the kidnapping of Gilad Shalit, and attacks on Israel prior to Hamas' election.

Do acts committed prior to accession to a position as a state actor carry over to provide grounds for military response against the state? In 1948, would Great Britain have been justified in launching military attacks against Israel - joining forces with the Arab states - on the grounds that during the pre-state period the new government had engaged in violent attacks against British forces? The answer has to be "no"; that is, while the justification for action to apprehend and punish individual non-state actors involved in violence does not disappear with those persons' election to office, and those same individuals may be held accountable for actions taken while in government, actions taken prior to being part of a government cannot provide a basis for military response against the state as a collectivity. In other words, the election of terrorists to government office is not a casus belli for war against the state they are elected to govern.

Alternatively, if Israel does not recognize Hamas as a state actor at all then the proportionality issue becomes sharper. If Hamas-controlled Gaza is not a state, then Israel's actions are not militarily defensive, they are collective punishment, a perversion of the police model of response that goes far beyond the collateral damage of its previous targeted assassinations. The attack and kidnapping of a solder - and the killing of two others - is certainly a justification for defensive action; again, however, Israel's jus in bello was wildly disproportionate by any plausible measure.

From Hamas' perspective - viewed as a "state" -- jus ad bellum is likewise not hard to find. Any of Israel's actions taken following the 2006 election - involvement in an attempted coup, air strikes, and above all the imposition of a general blockade - are classic examples of acts of war. (Israel, in fact, cited Egypt's blockade of the Straits of Tiran as casus belli for its preemptive attacks on Egyptian forces in1967). If Hamas-controlled Gaza is a state actor, then both Hamas and Israel have jus ad bellum.

The remaining question of means - jus in bello - cannot be answered by asking who struck first. In a way that's what proportionality is all about; if Japan strikes first by bombing Pearl Harbor and seizing Wake Island, one kind of American response is justified, but the same level of response would not have been justified by, say, North Vietnamese forces firing on a patrol boat in the Gulf of Tonkin even if the event had actually occurred. To repeat the observation that began this discussion, proportionality is an element of the grounds for military self-defense just as much as it is an element of the analysis of the means by which that defense is undertaken.

In discussions of the proportionality of means, Israel and its supporters often argue that there is a clear distinction: Hamas' rockets, no less than its earlier suicide bombers, deliberately target civilians, while Israel causes civilian deaths only as a secondary consequence of its pursuit of other, military aims. The argument is partly irrelevant; predictable civilian deaths, if excessive (applying any of the several measures of excessiveness) are a basis for finding a violation of proportionality. Beyond that observation, however, neither element of the distinction that Israel draws holds up very well. Hamas' rocket attacks employ Qassam and, more recently, recently, Grad rockets. While it is demonstrably true that these are weapons that can hit Ashkelon and Beer Sheva, they are not precision GPS or laser-guided munitions, they are basically "point-and-fire" weapons, which is why so many of them used to land in empty fields. Lately both the technology and the skill (gained through practice) have improved so that now rockets launched from Gaza have a good chance of hitting a target the size of a city. This demonstrates an "intent" to cause civilian casualties in a general sense, but perhaps not in the particular sense that is demonstrated by a suicide bomber standing in the entrance to a crowded nightclub.

This is not an excuse, merely a distinction, but it is a distinction that has weight when we consider the Israeli case. Israeli attacks are not "intended" to cause civilian casualties only if one employs the narrowest and most subjectivist conception of "intent" whereby it is the equivalent of something like "primary motive." Legal language is full of different ways to parse the idea of intentionality, but one basic principle is that a person is held to "intend" the foreseeable consequences of their actions. A person who fires a gun into a crowd or drops a brick from a high window is not excused by virtue of their lack of a specific intent to cause a particular death (although the particular crime charged may vary). Moreover, the blockade of Gaza is explicitly and directly "intended" to cause harm to civilians; that's its point, as repeated statements by Israeli political leaders have demonstrated. If intent is the test, then the defense of assassinations by missiles is at best highly questionable; the bombardment of civilian infrastructure is inexcusable; and the blockade is simply criminal. During this second period both Hamas and Israel are guilty of attempting the intentional killing of civilians in ways that defy any standard of proportionality.

Which leaves us back where we started. As the death toll approaches 1,000, are the means that Israel and Hamas are employing "proportional"? Like Hezbollah in Lebanon, Hamas uses the civilian infrastructure as military cover; as it did in Lebanon and in Gaza before, Israel deliberately targets the civilian infrastructure. Article 51(5) is difficult to apply to Israel's actions because the military goal of the operation is difficult to define. If the idea was to impair Hamas' future ability to launch rocket attacks, the calculation seems to be in doubt: Israeli intelligence officials have been quoted as saying that Hamas has lost only a few hundred of its estimated 20,000 fighters and retains significant supplies of rockets.

The deeper question, of course, is whether "proportionality" remains a useful category of analysis. By any accepted interpretation, the standard has been repeatedly violated by both Israel and Hamas; in an imaginary world governed by the rule of international law, officials from both sides should be looking ahead to trials for war crimes. That's not likely to happen, although officials on both sides may not be able to travel to Europe in years to come, a distinction they will share with officials from the Bush administration, Sudan, and Gulbuddin Hekmatyar.