Haaretz: In a letter to U.S. Secretary of State Condoleezza Rice, Amnesty’s U.S. branch said the U.S. government must not ignore Israel’s “disproportionate response” against Gaza and policies the group said had brought Hamas-ruled Gaza to the brink of “humanitarian disaster.”
“Amnesty International USA is particularly dismayed at the lopsided response by the U.S. government to the recent violence and its lackadaisical efforts to ameliorate the humanitarian crisis in Gaza,” the group told Rice in the letter, which was released to the media by Amnesty.
Amnesty said it was also deeply concerned by weaponry and military equipment supplied to Israel by Washington that the group said had been used in recent strikes on densely populated residential areas in Gaza. “The United States must suspend the transfer of weapons to Israel immediately and conduct an investigation into whether U.S. weapons were used to commit human rights abuses,” said Amnesty.
Here is an excellent report by Dore Gold about the use of force by a military power under the guidlines set by international law, and the use of “disproportionate use of force” as a political weapon.
Proportionality and International Law: The Protection of Innocent Civilians
The charge that Israel uses disproportionate force keeps resurfacing whenever it has to defend its citizens from non-state terrorist organizations and the rocket attacks they perpetrate. From a purely legal perspective, Israel’s current military actions in Gaza are on solid ground. According to international law, Israel is not required to calibrate its use of force precisely according to the size and range of the weaponry used against it (Israel is not expected to make Kassam rockets and lob them back into Gaza).
When international legal experts use the term “disproportionate use of force,” they have a very precise meaning in mind. As the President of the International Court of Justice (ICJ) in The Hague, Rosalyn Higgins, has noted, proportionality “cannot be in relation to any specific prior injury – it has to be in relation to the overall legitimate objective of ending the aggression.”8 In other words, if a state, like Israel, is facing aggression, then proportionality addresses whether force was specifically used by Israel to bring an end to the armed attack against it. By implication, force becomes excessive if it is employed for another purpose, like causing unnecessary harm to civilians. The pivotal factor determining whether force is excessive is the intent of the military commander. In particular, one has to assess what was the commander’s intent regarding collateral civilian damage.9
What about reports concerning civilian casualties? Some international news agencies have stressed that the vast majority of those killed in the first phase of the current Gaza operation were Hamas operatives. Ibrahim Barzak and Amy Teibel wrote for the Associated Press on December 28 that most of the 230 Palestinians who were reportedly killed were “security forces,” and Palestinian officials said “at least 15 civilians were among the dead.”10 It is far too early to definitely assess Palestinian casualties, but even if they increase, the numbers reported indicate that there was no clear intent to inflict disproportionate collateral civilian casualties.
During the Second Lebanon War, Professor Michael Newton of Vanderbilt University was in email communication with William Safire of the New York Times about the issue of proportionality and international law. Newton had been quoted by the Council on Foreign Relations as explaining proportionality by proposing a test: “If someone punches you in the nose, you don’t burn down their house.” He was serving as an international criminal law expert in Baghdad and sought to correct the impression given by his quote. According to Newton, no responsible military commander intentionally targets civilians, and he accepted that this was Israeli practice.
What was critical from the standpoint of international law was that if the attempt had been made “to minimize civilian damage, then even a strike that causes large amounts of damage – but is directed at a target with very large military value – would be lawful.”11 Numbers matter less than the purpose of the use of force. Israel has argued that it is specifically targeting facilities serving the Hamas regime and its determined effort to continue its rocket assault on Israel: headquarters, training bases, weapons depots, command and control networks, and weapons-smuggling tunnels. This way Israel is respecting the international legal concept of proportionality.
Alternatively, disproportionality would occur if the military sought to attack even if the value of a target selected was minimal in comparison with the enormous risk of civilian collateral damage. This point was made by Luis Moreno-Ocampo, the Chief Prosecutor of the International Criminal Court, on February 9, 2006, in analyzing the Iraq War. He explained that international humanitarian law and the Rome Statute of the International Criminal Court “permit belligerents to carry out proportionate attacks [emphasis added] against military objectives, even when it is known that some civilian deaths or injuries will occur.” The attack becomes a war crime when it is directed against civilians (which is precisely what Hamas does) or when “the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage.”12 In fact, Israeli legal experts right up the chain of command within the IDF make this calculation before all military operations of this sort.
Proportionality as a Strategic Issue
Moving beyond the question of international law, the charge that Israel is using a disproportionate amount of force in the Gaza Strip because of reports of Palestinian casualties has to be looked at critically. Israelis have often said among themselves over the last seven years that when a Hamas rocket makes a direct strike on a crowded school, killing many children, then Israel will finally act.
This scenario raises the question of whether the doctrine of proportionality requires that Israel wait for this horror to occur, or whether Israel could act on the basis of the destructive capability of the arsenal Hamas already possesses, the hostile declarations of intent of its leaders, and its readiness to use its rocket forces already. Alan Dershowitz noted two years ago: “Proportion must be defined by reference to the threat proposed by an enemy and not by the harm it has produced.” Waiting for a Hamas rocket to fall on an Israeli school, he rightly notes, would put Israel in the position of allowing “its enemies to play Russian Roulette with its children.”13
The fundamental fact is that in fighting terrorism, no state is willing to play Russian Roulette. After the U.S. was attacked on 9/11, the Western alliance united to collectively topple the Taliban regime in Afghanistan; no one compared Afghan casualties in 2001 to the actual numbers that died from al-Qaeda’s attack. Given that al-Qaeda was seeking non-conventional capabilities, it was essential to wage a campaign to deny it the sanctuary it had enjoyed in Afghanistan, even though that struggle continues right up to the present.
Israel is not using a disproportionate response to Hamas’ attacks. Read the report from those who know, and look at the facts. Anyone saying otherwise either doesn’t know what he or she is talking about, or worse still, know what Dore Gold says is true, but for political reasons, chooses to criticize Israel. KGS