Israel and the Principle of Proportionality

Today I was faced with a situation where I was expected to express my views on the legality of Israel's actions in Lebanon in terms of the international legal concept of proportionality. I was in an academic setting being questioned by a scholar with a clear pro-Israel stance. She challenged me to express a legal argument "free from personal bias." Despite the fact that her stance was anything but impersonally guided, I took her advice to heart and found great ease in expressing the illegality of Israel's atrocities in Lebanon from a "purely" academic perspective. I shall leave aside, for the moment, the preposterous belief that any legal view may be detached from a political bias, with the Supreme Court being a case in point.

On the question of what proportionality (in bello) in terms of international law means, there has been much confusion in the media and amongst the talking heads especially with respect to Israel's latest actions in both Gaza and Lebanon. Proportionality in international law does not refer to a situation where one side is constrained by the amount of force its enemy may or may not possess. In other words, because Hezbollah is limited in its weaponry does not mean that Israel must use the same level of force.

Proportionality in the conduct of war means that a state may unilaterally defend itself and/or undertake a reprisal provided the response is proportional to the injury sustained. The injury sustained, according to Israel, is the kidnapping of two of its soldiers. It was only after the commencement of its offensive against Lebanon that Israel expanded this injury to include ending the ability of Hezbollah to launch any further attacks against Israel. Whatever Israel is doing in Lebanon is supposedly in response to that wrong. Thus, proportionality must be evaluated in terms of that expressed wrong.

Fortunately, there is no positive law detailing numbers or ratios of acceptable "collateral damage". However, reasonable people can agree or disagree on what is considered "acceptable" and this level of acceptability is likely to be conditioned by what side of the conflict one sits, in addition to one's value of human life. For me, and for many others, that level has been exceeded in Lebanon. Thus, there are some who would argue that even one innocent civilian death is too many, while others at the other extreme, may draw the line at nuking a village or city if it means weeding out a "terrorist". The important issue here is that the principle does exist and what is in debate is where to draw the line.

However, the laws of war, as enumerated in numerous international conventions such as the Hague Conventions of 1907 and the Geneva Conventions of 1949, underline the fact that there are 2 overriding principles which should guide hostilities, namely, proportionality AND discrimination. This latter principle is defined by immunity of non-combatants from being targeted during times of war. This exclusion extends to civilian infrastructure and property.

Thus, when Israel bombs and kills over 1,200 civilians, decimates homes and destroys basic infrastructure needed by the civilian population to survive, in order, according to its own declarations, to root out 50 Hezbollah combatants, Israel may be held to account for contravening the laws of war - both proportionality and discrimination. The applicable terms are war crimes, genocide, and crimes against humanity.

The issue of proportionality and Israel's action in both Gaza and Lebanon were recently addressed by the Council on Foreign Relations and I quote:

"What is the doctrine of proportionality? The doctrine originated with the 1907 Hague Conventions, which govern the laws of war, and was later codified in Article 49 of the International Law Commission's 1980 Draft Articles on State Responsibility (PDF). The doctrine is also referred to indirectly in the 1977 Additional Protocols of the Geneva Conventions. Regardless of whether states are party to the treaties above, experts say the principle is part of what is known as customary international law. 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. That said, experts say the proportionality principle is open to interpretation and depends on the context. "It's always a subjective test," says Michael Newton, associate clinical professor of law at Vanderbilt University Law School. "But if someone punches you in the nose, you don't burn their house down."

The Council article goes on to say: "How does the doctrine apply to the current context in Israel? Many legal experts say Israel's response to the recent abductions has not upheld the principle of proportionality and violates international humanitarian law."

Human Rights Watch website contains a discussion of the Israeli action in Lebanon from the perspective of International Humanitarian Law. One interesting issue discussed relates to the so-called humanitarian Israeli practice of dropping leaflets on trapped civilians exhorting them to leave the vicinity (yet not allowing them the means to comply). Quote:

"Do the warnings given to Lebanese civilians in advance of IDF attacks comply with international humanitarian law? The IDF, through leaflets dropped by aircraft, radio broadcasts and recorded messages to telephones, has repeatedly called on civilians in southern Lebanon to evacuate their areas. International humanitarian law requires that warring parties give “effective advance warning” of attacks that may affect the civilian population, so long as circumstances permit. What constitutes an “effective” warning will depend on the circumstances. Such an assessment would take into account the timing of the warning and the ability of the civilians to leave the area. In some cases the IDF are reported to have dropped leaflets giving residents only two hours warning before a threatened attack. Bomb damage to roads and bridges, as well as air attacks on civilian vehicles, would also affect the ability of civilians to flee an expected attack. Civilians who do not evacuate following warnings are still fully protected by international law. Otherwise, warring parties could use warnings to cause forced displacement, threatening civilians with deliberate harm if they did not heed them. So, even after warnings have been given, attacking forces must still take all feasible precautions to avoid loss of civilian life and property. This includes canceling an attack when it becomes apparent that the target is civilian or that the civilian loss would be disproportionate to the expected military gain."

Today Israel demanded from the civilians of Tyre to evacuate the vicinity yet, in the same leaflet, warned against any attempt to leave in vehicles as all moving vehicles would be targeted for bombing. Does Israel assume that the elderly, young, sick and even the healthy are supposed to make a run for it by foot under the rain of Israeli bombardment across rivers, hills, mountains, and otherwise difficult terrain? In the absence of any other logic, this is beginning to look like an extermination campaign.... and that is a conclusion filled with personal bias not due to any political view but rather as a human being!

The terrorizing and killing of innocent civilians is defined as terrorism, perpetrated by terrorists. Israel has placed this label on Hezbollah. However, righting the wrong that Israel claims does not come about by descending to the same level and sinking even further into moral deficit and legal delict. Shame!