Once again Israel is under fire for using disproportionate force in response to Hamas rocket fire from Gaza. Israeli bombs have left hundreds of Palestinians dead, the bulk of them Hamas militants but dozens of citizens have died as well. So is Israel justified in its retaliation or did it violate international norms on proportionality?
The operative phrase tossed around is "self-defense," enshrined by Article 51 in the UN Charter. If a country -- or non-state actor for that matter -- attacks you, you are entitled to respond to defend yourself. But you cannot respond with disproportionate force. I cannot burn your house down if you spit on me. But I can slug you one in the face and be in the clear.
The targeting of civilians, whether deliberate or not, violates the 1949 Geneva Conventions. As such, Hamas sprinkles its militants around population centers as a form of deterrence but also to maximize world outrage when Israel responds with overwhelming force and ends up killing scores of civilians. What's remarkable is that time and again Israel falls for the bait. Regardless of how many Hamas fighters it kills or what kind of signal it sends to Syria and Iran, world perception is what ultimately matters, not body counts. And the tide of public opinion seems to invariably side with the underdog, regardless of who's to blame.
Hence, Israel now finds itself in the awkward yet familiar position of defending its actions. A state is legally allowed to unilaterally defend itself and right a wrong provided the response is proportional to the injury suffered and is immediate, necessary, refrains from targeting civilians, and requires only enough force to reinstate the status quo ante. Also implied in this argument is the right of Israel to prevent Hamas from carrying out future cross-border attacks.
Yet there is growing confusion as to what constitutes a legitimate military target. Arguably, if a hospital or church is used to house enemy troops, or a bridge is vital to moving militants, then these areas would become fair targets. The same goes for an electric grid. As international legal expert Michael Glennon told me after the 2006 Israeli-Hezbollah conflict, "Virtually no target can, ipso facto, be de-listed from a list of potential military targets."
Critics say Israel has a history of using disproportionate force. For example, its war with Hezbollah drew international condemnation for its use of cluster bombs and disproportionate use of force, regardless of the fact that Hezbollah provoked the war. In 1993, Israel's seven-day bombing campaign of Lebanon in retaliation for Hezbollah rocket attacks was also criticized. And in 1981, Israel struck Iraq's Osirak nuclear reactor without provocation, a move Israelis said was justified under international norms on anticipatory self-defense.
The UN High Commissioner for Human Rights and French President Nicolas Sarkozy have condemned Israel's "disproportionate use of force" against Hamas. The Obama camp has been mum on the issue, only to issue anodyne statements standing by Israel's right to defend itself and urge a peaceful solution. But this issue -- what is an acceptable level of violence in response to attacks by non-state actors -- will rear its ugly head again, whether along the Turkish-Iraqi border, in northwest Pakistan, or in Gaza. There is no agreed-upon definition of what constitutes a proportionate response to terrorist attacks.
States, especially those with hyperactive militaries and nukes at their disposal, cannot be given carte blanche to retaliate. But it should be in their own self-interest not to respond with disproportionate force. After all, non-state actors tend not to be deterred much less defeated militarily. All that results is a surge in recruits and international sympathy for the non-state actor -- in this case, Hamas. Yes, it's tough for states to sit on their hands in the face of incoming rockets. But to respond, especially with disproportionate force, is suicidal.