Posted on 01/03/2009 1:39:37 PM PST by 2ndDivisionVet
While much of the world engages in hand-wringing, placard-waving, teeth-gnashing, and rocket-launching over Israel’s “disproportionate” response to Hamas attacks from Gaza, it’s worth looking at what the doctrines of “proportionality” actually say.
Making the rounds is a two-year old quote from Lionel Beehner’s paper for the Council on Foreign Relations in which he summarizes the principle of proportionality as laid out by the 1907 Hague Conventions. “According to the doctrine, a state is legally allowed to unilaterally defend itself and right a wrong provided the response is proportional to the injury suffered. The response must also be immediate and necessary, refrain from targeting civilians, and require only enough force to reinstate the status quo ante.”
The precise wording of the doctrine can be found in Article 51, not Article 49 as Beehner writes, of the Draft Articles of the Responsibility of States for Internationally Wrongful Acts. “Countermeasures must be commensurate with the injury suffered, taking into account the gravity of the internationally wrongful act and the rights in question.”
This is vague and open to interpretation, as Beehner admits. And it’s further complicated by the fact that the doctrine was laid out at a time when war was fought between sovereign states with standing armies rather than asymmetrically between a sovereign state and a terrorist gang.
Proportion, as defined by Beehner and the Hague Conventions, is impossible between Israel and Hamas. The Israel Defense Forces are more professional, competent and technologically advanced than Hamas and will inflict greater damage as a matter of course. And Hamas’s war aim is entirely out of proportion to Israel’s. Israel wants to halt the incoming rocket fire, while Hamas seeks the destruction or evacuation of Israel.
Beehner’s proportionality doctrine is therefore unhelpful. Each side’s ends and means are disproportionate to the other. And nowhere in that doctrine are casualty figures or the intent of the warring parties factored in.
In any case, no war has ever been fought tit for tat, and the Hague Conventions doesn’t say any war should be. The American response to Japan’s attack on Pearl Harbor went well beyond sinking an equal number of ships in a Japanese harbor, for instance. And European Jews certainly were not entitled to execute six million German civilians after the Holocaust.
The proportionality doctrine spelled out here is really only useful up to a point. “It’s always a subjective test,” Beehner correctly quotes Vanderbilt University Professor Michael Newton as saying. “But if someone punches you in the nose, you don’t burn their house down.” That much most of us can agree on. Israel should not – and will not – implement a Dresden-style fire-bombing of Gaza City in response to Qassam and Grad rocket attacks.
So aside from the obvious, we’re wading into murky territory that could be debated forever. Another doctrine of proportionality, though, clearly applies to this war, and it’s found in the Law of Armed Conflict.
The Law of Armed Conflict “arises from a desire among civilized nations to prevent unnecessary suffering and destruction while not impeding the effective waging of war. A part of public international law, LOAC regulates the conduct of armed hostilities. It also aims to protect civilians, prisoners of war, the wounded, sick, and shipwrecked.”
Proportionality, in short and according to the law, “prohibits the use of any kind or degree of force that exceeds that needed to accomplish the military objective.”
In other words, if a surgical strike is all that is needed to take out a Grad rocket launcher, carpet bombing the entire city or even the neighborhood isn’t allowed.
Hamas is still firing rockets; therefore, the IDF is not using more force than necessary to disrupt the firing of rockets. Israel, arguably, is using less force than necessary. And the IDF, unlike Hamas, does what it can to minimize injury to civilians. “Militants often operate against Israel from civilian areas,” the Associated Press reported last week. “Late Saturday, thousands of Gazans received Arabic-language cell-phone messages from the Israeli military, urging them to leave homes where militants might have stashed weapons.” Israeli commanders are even warning individual Hamas leaders that their homes are on the target list so they can vacate the premises in advance.
It’s also worth looking at the doctrine of distinction, which Israel follows while Hamas does not.
Distinction, according to the Law of Armed Conflict, “means discriminating between lawful combatant targets and noncombatant targets such as civilians, civilian property, POWs, and wounded personnel who are out of combat. The central idea of distinction is to only engage valid military targets. An indiscriminate attack is one that strikes military objectives and civilians or civilian objects without distinction. Distinction requires defenders to separate military objects from civilian objects to the maximum extent feasible. Therefore, it would be inappropriate to locate a hospital or POW camp next to an ammunition factory.”
Hamas violates this doctrine in two ways at once. Its fighters launch Qassam, Katyusha, and Grad rockets into Israeli civilian areas, and they fire those rockets from inside Palestinian civilian areas. Both are prohibited by the Law of Armed Conflict.
The law does not, however, prohibit Israel from striking legitimate military targets in civilian areas. “Although civilians may not be made the object of a direct attack, the LOAC recognizes that a military target need not be spared because its destruction may cause collateral damage that results in the unintended death or injury to civilians or damage to their property.”
Hamas, then, is legally to blame for all, or nearly all, injuries and deaths of both Israelis and Palestinians.
I shouldn’t even need to point out that Hamas is not allowed to target civilians with rockets, but I’ll cite the law anyway. “The LOAC protects civilian populations. Military attacks against cities, towns, or villages not justified by military necessity are forbidden. Attacking noncombatants (generally referred to as civilians) for the sole purpose of terrorizing them is also prohibited.”
Concern for the suffering innocents of Gaza – and all children of all nations are innocent – is well, good, and proper. And whether Israel’s operation in Gaza will turn out to be prudent, wise, and productive is yet to be seen. But either way, and at the end of the day, Israel’s rules of engagement comply with the laws of war forged by civilized nations, while nearly every one of Hamas’s military tactics are war crimes.
The Israelis are showing more concern for the civilians in Gaza than Hamas. Usually it is the government in a nation that is under attack that sounds alarms when an area is about to be attacked. In this case, the Israelis are calling ahead before their missiles arrive.
“If they want eternal war, well and good; we accept the issue, and will dispossess them and put our friends in their place. I know thousands and millions of good people who at simple notice would come to North Alabama and accept the elegant houses and plantations there. If the people of Huntsville think different, let them persist in war three years longer, and then they will not be consulted. Three years ago by a little reflection and patience they could have had a hundred years of peace and prosperity, but they preferred war; very well. Last year they could have saved their slaves, but now it is too late.
All the powers of earth cannot restore to them their slaves, any more than their dead grandfathers. Next year their lands will be taken, for in war we can take them, and rightfully, too, and in another year they may beg in vain for their lives. A people who will persevere in war beyond a certain limit ought to know the consequences. Many, many peoples with less pertinacity have been wiped out of national existence.”
William Tecumseh Sherman, 1864
http://en.wikiquote.org/wiki/William_Tecumseh_Sherman
Thanks for posting this quote.
I have lived in Huntsville for almost 20 years (I’m from Illinois) and had never seen this before.
Is that different from Sharia Law"
Is that different from Sharia Law?
This is completely illogical. Where is the risk to the party engaging in aggressive warfare? Under this guideline a country should continuously attack it's neighbors. After all the worst that can happen in a return to what you had to begin with.
Proportionality does little to discourage future hostile acts. Responses to aggression need to be of a magnitude to assure no future acts of aggression from anybody ever.
And to those in Rio Linda, that means if you slap us in the face, we stomp a mudhole in yo’ backside.
Israel ought to bomb and burn and bulldoze until nothing moves in the entire Gaza strip.
It is also sick and perverted. The entire concept of proportional response in war only ensures that conflict is never ending. It's the doctrine of sado-masochists.
“But if someone punches you in the nose, you don’t burn their house down.” That much most of us can agree on.
That depends upon why I was punched in the nose. If it was meant to send the message that worse is coming if I don't submit to some tyrannical demands then I would be a fool not to burn his house down.
Proportionality, in short and according to the law, “prohibits the use of any kind or degree of force that exceeds that needed to accomplish the military objective.”
What about political objectives? The military objective is usually just to quell the immediate threat. The political objective of the subject being threatened is to make sure the threat doesn't arise again. Or it should be if the objective is sane.
"...The response must also be immediate and necessary, refrain from targeting civilians, and require only enough force to reinstate the status quo ante.”
What insufferable garbage! The status quo ante being to live with murderous neighbors who are constantly planning for the next opportunity to kill you? Unacceptable.
Concern for the suffering innocents of Gaza – and all children of all nations are innocent – is well, good, and proper.
What innocents? The palestinians voted between two terrorist organizations to be their leaders and the majority chose the most radical group. They are all terrorists.
“Double Effect” rather than “Strategic Devastation” is another concept.
St Thomas Aquinas and others evolved the concept of the Just War . These concepts aren't new to the warrior, but completely muddled by the lawyer (and pundits and leftists—I know, one and the same).
There are a couple of excellent books on Just War theory.
“The Just War” by Tucker. Superb.
“Just and Unjust Wars” by Walzer. Written better and more clearly stated. Updated with recent scenarios.
Another book, though I think not too well written or argued is, “Just War Against Terror” by Elshtain.
The concept of the just war does not prohibit suffering of the innocent.
For preemptive acts against the enemy, we are allowed to attack first, we don’t have to be the one's to suffer first blood. This concept was codified through the “Caroline Doctrine.” 1837, Canadian rebels in the US, loading a ship with arms and ammunition in US waters, the Canadians attacked and killed several of the Canadians and one American. Daniel Webster argued on behalf of the Canadians, recognizing the right of a state to attack before being attacked, that a nation doesn't have to wait until the ships are on the horizon before they may act.
Most recently, we have hostile intent that allows us to attack if the intent appears to be hostile, whereas most of the lefty/liberal world only will act when a hostile act occurred. But I am straying.
Suffice it to say, other rules of war can be applied to discourage potential aggressors, and use compassion, logic, common sense and morals to establish rules of behavior--none of which the muslims possess.
That's my thinking about the "pirates" of Somalia. Should NO vessels be allowed to arrive or leave the shores for a generation (30 yr to be safe), future attempts would be severely dampened for a couple of generations. It's kind of Darwinian.
But, Gaza isn't a NATION.
What innocents?
Indeed!
And it isn't just their kiddie terror-porn cartoons, but also their school textbooks.
How horrible that this isn't just propaganda, but all too true of Hamas' "educational system"...and the P.A.'s, too:
Children of an enemy may not be legitimate targets but they are not ‘innocents.’ They are children of the enemy. If the children are trained to be soldiers or used as IEDs then they do become legitimate targets.
And the B*****ds who teach it to them are the lowest of the low.
And it isn't just the Palestinians.
That is horrible and contemptible.
Yes, it is; in fact, beneath contempt.
One of my wife’s cousins needed some therpy from the results of it.
He & his buddies had to shoot a little boy. He was only 3 or 4 years old, and had a big grin on his face as he was crawling through the barbed wire into their position in ‘Nam.
He was wired with grenades, and had no idea what was going on. His “handlers” were counting on the Americans ingrained aversion to harming kids to get him close enough to blow him up.
The brutality of using a child like that is unimaginable. That’s a monstrous mindset. May your wife’s cousin have peace. They were forced to make choice that was beyond all bounds of human judgment.
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