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A Question of Proportionality: Israel's Excessive Airstrikes

A blog is not a book, not even the facsimile of a chapter. At best (and worst) it is a strong conclusion and a terse abridgement of the facts, premises, analogies and values on which that conclusion rests. So it's an awkward medium for an academic like me who cherishes the canon of the academy which values the fully exposed process of thought behind conclusions more than the conclusions themselves. What a blog can do, however, is place a small obstacle in the path of a herd-like rush to judgment in a morally complicated case. In order to slow the stampede, you often have to shout. If the herd slows, then there is space for reasoned debate.

My last blog is a case in point. The balance of early reaction to Israel's devastating response to rockets launched from Gaza was to dismiss contemptuously criticism or even expressions of concern about the hundreds of dead non-combatants and the widespread destruction of homes, schools, and the basic civilian infrastructure among a group of people already suffering from malnutrition and other pathologies of poverty aggravated by blockade. "Obviously," an emerging consensus declared (echoing the official Israeli position), "a country is entitled to use force, as long as it does not target non-combatants, to defend its citizens from attack even if very few of them have thus far been killed or injured."

Even if Gaza were a foreign country, this rationalization of the devastation of Gaza was not, it seemed to me, self-evident. Of course international law recognizes a right to self defense and, arguably, to reprisal as a deterrent. But in either case the use of force must be "proportional." The position of defenders of Israeli action appeared to be that whatever degree of destruction was needed, in the opinion of the Israeli government, to deter further violence by militants in Gaza, was proportional. But surely there are limits. Suppose the government had decided that because Hamas fighters were intermingled with the population, it needed to pulverize every part of the tiny territory to be sure of eliminating those fighters. Would it be a sufficient defense of such a policy that the slaughter of the population was an unfortunate incident of ending any threat of future violence? Surely a reasonable person might reasonably conclude that it was not.

There is here not only a question of proportionality, but also of whether force, particularly force certain to cause terrible suffering to non-combatants, must be a means of last resort. Suppose Israel could achieve its goal by agreeing to end some illegal activity which had precipitated the violence. While violence directed indiscriminately at civilians (i.e. the Hamas rocket attacks) cannot be justified even to rectify a legal wrong, if ending the wrong would eliminate the need for retaliatory violence, there is a case, if not in law than certainly in Just War theory, for ceasing the wrongful act rather than resorting to retaliatory violence.

But if, as I believe, Gaza is not analogous to an autonomous foreign country but is effectively part of Israel, then the restraints on violence are broader. Governments have far greater responsibilities towards the inhabitants of territory they control than toward the inhabitants of foreign countries. Suppose, for instance, bank robbers whose car had been disabled invaded a primary school and demanded a car as a condition for releasing the hostage children. And suppose rather than giving them a car and safe passage from the scene, the government ordered an attack on the school which predictably resulted in the deaths not only of the robbers but of 300 children, would the generality of opinion dismiss the deaths with a facile "Governments must maintain order"? I doubt it.

Thus my emphasis on the analogy between Gaza (and the West Bank Palestinian enclaves too) as a large prison from which the government, for reasons of economy and image, has removed its jailers, hitherto responsible for order within the prison and for notionally looking after the welfare of prisoners, to the outside of the prison's boundaries. Since Israel controls egress and ingress to Gaza, controls its air space and its shore line, and reserves the right to enter at any time and, indeed, to reoccupy the premises, since Gazans are, therefore, in a real sense captives, the analogy to a prison does not seem far-fetched. And it is a prison in which both Hamas combatants and ordinary civilians live with their wives and children. If the Israeli Government conceded it to be a prison and one in which criminals (albeit unconvicted) mixed with a majority of ordinary people, and if, nevertheless, it bombed and shelled the prison killing hundreds of women and children (and passive male prisoners), because some prisoners fired primitive rockets over the prison walls in a bid to secure their release, I suspect more people would have doubts about the moral propriety of this response.

One reason those doubts seem to me justified is that because Gaza is not a foreign country but rather a territory under Israeli control, Israel has the power to fashion new political arrangements that would encourage the Gazans themselves to restrain the incorrigibles. The case for exhausting those political options is all the stronger because, as I argue at length in my recent book "Confronting Global Terrorism and American Neo-Conservatism," the existing political arrangements violate broadly accepted principles of international human rights law and Western morality. The current political arrangements are delinquent because the Palestinians living in Gaza and on the West Bank and in East Jerusalem have neither the option of exercising their right of self-determination to form an independent state in virtually the entire territory occupied by Israel in 1967 (a territory that is a mere 22 percent of the Palestine Mandate ordered by the UN in 1947 to be divided into roughly equal halves in which the Jewish and non-Jewish populations respectively would enjoy a clear majority) nor eventually becoming citizens of Israel. I do not see any other option that would allow the Palestinians of the occupied territories to exercise their undoubted right to participate in their own governance.

In my book I elaborate the safeguards Israel could reasonably demand as a condition for withdrawing from the occupied territories. In passing I note that the white population of South Africa had none of the safeguards I enumerate when its government decided to grant citizenship to the non-white population which outnumbered the white electorate by at least 7-1 and had been treated at least as badly as the Palestinians for a much longer time. That decision by South Africa's white minority had been demanded by most Western governments despite the existential threat it posed to a population that had been living in the country for four centuries. Only the far right wing of western polities defended the claimed right of the South African whites to monopolize political power.

That said, I remain convinced that a two-state solution remains the legally and morally appropriate route to security for both Israelis and Palestinians. That solution is, of course, incompatible with the colonization of the territories occupied in 1967.

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