Israeli Politics Operation Cast Lead Proportionality

Just War Theory and Proportionality…….

The Tundra Tabloids’ comment box is an interesting place, and because that’s so, this post is dedicated to Wouter, who commented to a post the TT uploaded yesterday about Martti Koskenniemi, a Finnish lawyer on international law.
Wouter states:What is wrong about the principle of proportionality? It is used in normal justice. It’s used when we judge our kids. The fact that it compares absolute numbers which can’t be denied, is that a problem?
He’s from Finland. It’s strange how someone far from the conflict that uses factual evidence in a heated up conflict can be insulted so hard.
Being ‘neutral and objective and outspoken’ in wartime has through history been tested: it’s a very very dangerous proposition. I guess for some, the scary thing about using unchangable numbers, is that it would shut up room for fanatic judgement and bring us closer to justice.”
The TT’s harsh opinion about Koskenniemi stems not from his rendering an opinion, on the contrary, there have been a host of Finnish talking heads (“experts”) who have cried disproportionate use of force concerning Israel’s use of force in the Gaza War. What is most imortant here to remember, is that Koskeniemi is THE voice on matters such as these in Finland, and what he states is of potentially great influence. That Koskenniemi only tells one side of the coin where international law is concernced, let alone outright obfuscating the chief points in IL that all states point to when they justify their military actions, is digusting, which makes him a dispenser of propaganda, not an unbiased academic rendering his/her analysis on what constitutes international law. Here is a solid article written by Michael Walzer, that explains things in full, and if his observations don’t influence your thinking, then see Justus Weiner’s pdf file at the TT’s side bar, about International Law and the Gaza War. KGS
by Michael Walzer

How much is too much in war?

Post Date January 08, 2009January 8 2009Let’s talk about proportionality–or, more important, about its negative form. “Disproportionate” is the favorite critical term in current discussions of the morality of war. But most of the people who use it don’t know what it means in international law or in just war theory. Curiously, they don’t realize that it has been used far more often to justify than to criticize what we might think of as excessive violence. It is a dangerous idea.

Proportionality doesn’t mean “tit for tat,” as in the family feud. The Hatfields kill three McCoys, so the McCoys must kill three Hatfields. More than three, and they are breaking the rules of the feud, where proportionality means symmetry. The use of the term is different with regard to war, because war isn’t an act of retribution; it isn’t a backward-looking activity, and the law of even-Steven doesn’t apply. Like it or not, war is always purposive in character; it has a goal, an end-in-view. The end is often misconceived, but not always: to defeat the Nazis, to stop the dominos from falling, to rescue Kuwait, to destroy Iraq’s weapons of mass destruction. Proportionality implies a measure, and the measure here is the value of the end-in-view. How many civilian deaths are “not disproportionate to” the value of defeating the Nazis? Answer that question, put that way, and you are likely to justify too much–and that is the way proportionality arguments have worked over most of their history.

The case is the same with arguments focused on particular acts of war. Consider the example of an American air raid on a German tank factory in World War Two that kills a number of civilians living nearby. The justification goes like this: The number of civilians killed is “not disproportionate to” the damage those tanks would do in days and months to come if they continued to roll off the assembly line. That is a good argument, and it does indeed justify some number of the unintended civilian deaths. But what number? How do you set an upper limit, given that there could be many tanks and much damage?

Because proportionality arguments are forward-looking, and because we don’t have positive, but only speculative, knowledge about the future, we need to be very cautious in using this justification. The commentators and critics using it today, however, are not being cautious at all; they are not making any kind of measured judgment, not even a speculative kind. “Disproportionate” violence for them is simply violence they don’t like, or it is violence committed by people they don’t like.

So Israel’s Gaza war was called “disproportionate” on day one, before anyone knew very much about how many people had been killed or who they were. The standard proportionality argument, looking ahead as these arguments rightly do, would come from the other side. Before the six months of cease-fire (when the fire never ceased), Hamas had only primitive and home-made rockets that could hit nearby small towns in Israel. By the end of the six months, they had far more advanced rockets, no longer home-made, that can hit cities 30 or 40 kilometers away. Another six months of the same kind of cease-fire, which is what many nations at the UN demanded, and Hamas would have rockets capable of hitting Tel Aviv. And this is an organization explicitly committed to the destruction of Israel. How many civilian casualties are “not disproportionate to” the value of avoiding the rocketing of Tel Aviv? How many civilian casualties would America’s leaders think were “not disproportionate to” the value of avoiding the rocketing of New York?

The answer, again, is too many. We have to make proportionality calculations, but those calculations won’t provide the most important moral limits on warfare.These are the questions that point us toward the important limits.

First, before the war begins: Are there other ways of achieving the end-in-view? In the Israeli case, this question has shaped the intense political arguments that have been going on since the withdrawal from Gaza: What is the right way to stop the rocket attacks? How do you guarantee that Hamas won’t acquire more and more advanced rocketry? Many policies have been advocated, and many have been tried.

Second, once the fighting begins, who is responsible for putting civilians in the line of fire? It is worth recalling that in the Lebanon war of 2006, Kofi Annan, then the Secretary-General of the UN, though he criticized Israel for a “disproportionate” response to Hezbollah’s raid, also criticized Hezbollah–not just for firing rockets at civilians, but also for firing them from heavily populated civilian areas, so that any response would inevitably kill or injure civilians. I don’t think that the new Secretary General has made the same criticism of Hamas, but Hamas clearly has a similar policy.

The third question: Is the attacking army acting in concrete ways to minimize the risks they impose on civilians? Are they taking risks themselves for that purpose? Armies choose tactics that are more or less protective of the civilian population, and we judge them by their choices. I haven’t heard this question asked about the Gaza war by commentators and critics in the Western media; it is a hard question, since any answer would have to take into account the tactical choices of Hamas.

In fact, all three are hard questions, but they are the ones that have to be asked and answered if we are to make serious moral judgments about Gaza–or any other war. The question “Is it disproportionate?” isn’t hard at all for people eager to say yes, but asked honestly, the answer will often be no, and that answer may justify more than we ought to justify. Asking the hard questions and worrying about the right answers–these are the moral obligations of commentators and critics, who are supposed to enlighten us about the moral obligations of soldiers. There hasn’t been much enlightenment these last days.

Michael Walzer is a contributing editor at The New Republic. This piece also appears on the website for Dissent Magazine.

NOTE: Here’s another reminder of why civilian targets get hit, thanks to Arabs’ use of them in times of conflict as shields. KGS

20 Responses

  1. So if I accept one is ‘just’, and the other not, then I can understand why one side can kill many times more humans than the other side, and why the other side can’t.

  2. Eh….no. You miss the entire point, perhaps on purpose?

    Besides, the only reason why one side has killed more in this latest war, is solely due to the strategy of Hamas using its people as human shields.

    But you knew that already.

  3. Hi KGS, the text of MW said: “Disproportionate” is the favorite critical term in current discussions of the morality of war. But most of the people who use it don’t know what it means in international law or in just war theory.”
    The bug in this argument seems that it forces to choose whose just.
    About human shields sinds it is now mentioned as solely reason for my initial question on proportionality: Almost everybody killed would have to be a ‘human shield’ to make your math work. The international press didn’t confirm it. Again something to pre-accept. Could have happened ofcourse.

  4. Hi Wouter, it seems that what is in question here, is your disagreement with international law. It is what it is, and by its own definitions, Israel can't be held legally or morally responsible for civilian deaths that ensued from the fighting.

    I would say that the overwhelming majority of those killed were iin fact human shields. the evidence is overwhelming, especially when one looks at Hamas officals proudly stating that is the case.

    But once again, even if that were not the case, the fact that there were civilian casualties does not mean a disporportionate use of force.

    International law allows for a state to plan its defence against the possible threat that an aggressor poses to its people, at the time, as well as in the future.

    I understand that people view one death a death to many, but that is the nature of war, and people have to defend themselves, something of which the Hamas & ilk, had nothing to fear from Israel if it had chosen a different route. Since it chose to allow war crime Qassams to be launched from its turf into Israeli civilian centers, it must bear the total responsibilty of all damage and loss of life that ensued from Operation Cast Lead.

    It can't be explained any better than that.

  5. Reffering to international law is good but a party engaged in war has tendency to forget facts, in my opinion by definition has that tendency.
    So an international verdict needs to follow up. That’s how justice works best. I think to accept international courts would be an amazing news for Israelian an Palestine people.

  6. brings us back to Martti Koskenniemi,
    specialist in international law.

  7. Anon said: “So an international verdict needs to follow up. That’s how justice works best. I think to accept international courts would be an amazing news for Israelian an Palestine people.”

    The problem that arises from that though is, in past times and presently, there is an institutionalized biased directed against Israel in these international bodies.

    Israel can expect the same kind of verdicts (justice) from these international institutions that Blacks received from courts in a segregated south.

    Wouter said: “brings us back to Martti Koskenniemi, specialist in international law.”

    Koskenniemi represents the very same mindset I just referred to. The he himself uses the “disproportionate use of force” meme, when he clearly should know better, proves the man is incredibily biased, and ideologically driven. In my opinion….a loon.

    That he never actually explains how Israel is being disproportionate, or even “what would have been a proportionate response” shows he has more at stake in being as ambigous as possible….and I see that it works quite well.

  8. Precicely -a village idiot- and -loon- etc… and he’s not alone.
    My point was only: better not refer to international law when hiding from being tested to it.

  9. Other way around, don’t invoke the meme of “violation of international law due to use of Disproportionate use of force”, unless you are willing to back up your position 100%.

    That Koskenniemi chooses the same modus operandi as many of the media, academy and other anti-Israel nay sayers, proves my point exactly.

    When it comes down to the bare facts, Israel’s position is amazaginly clear and justifiable, that being, full of legally sound pretexts for what it is doing, as well as what it’s allowed to do but has refrained from doing, becuase indeed, they do value life more then the enemy they are fighting.

  10. I didn’t say that Israel violates international law, I said that their is a disproportionate amount of deads. You referrring to international law is ok, and more reason for an international court to find out what happened, after investigating all the facts.
    Palestine casualties will not likely go to Jewish courts, I suppose.

  11. I went over the entire discussion on two threads, and clrearly you were addressing the amount of dead as a sign of Israel’s response being “disproportionate”.

    Back to square one:
    “What is wrong about the principle of proportionality? It is used in normal justice. It’s used when we judge our kids.
    The fact that it compares absolute numbers which can’t be denied, is that a problem?”

    You’re claim that the dead is disproportionate is part of the same claim that Israel’s use of force was as well, and therefor, a violation of international law.

    You have yet to single out anyone portion of international law that would justify your claim that the number of Palestinian dead was “disproportionate”.

    Come to think of it, neither has Koskenniemi.

  12. No-no. You’re adding content to my words. The disproportionate number of Palestine deaths is an observation. International law, interpretation of facts, I leave that to the judge, period. Victims only can get justice after a verdict, not after reading a text.
    I think a verdict even when it is slightly bias no matter in what direction, can be credible for both sides, and wake up people out of the psychosis of war-thinking.

  13. I think not. You’are responding to a post in which I take to task an international lawyer who has criticized Israel’s use of force as being disproportionate.

    Wouter:”” What is wrong about the principle of proportionality?”

    As for “waking up people out of the psychosis of war-thinking.”

    No international verdict is going to wake genocidal religious supremacists out of their war-thinking, since it stems directly from the religious texts the worship. Good luck

  14. You don’t like me to talk about Israel’s much bigger amount of killings without mentioning Muslim threat and the bigger good of Israel.
    A Judge can do this.

  15. Talk till you’re blue in the face if you like, it still doesn’t change the fact that Hamas bears 100% responsibility for the carnage in Operation Cast Lead.

    You find an international court that’s not corrupted by NAM and the OIC…and I listen to you.

  16. It doesn’t matter if Israel and Palestine accept a such verdict. What matters is international credibility. Bush’s unilateralism is dismissed and the weapon industry for the first time couldn’t buy a president. International bodies will function. Mixed marriages, internet, English language and multinationals make the world a village. And who’s the village idiot? The greater good.

  17. Wouter, your thoughts are incoherent, sorry, but they are. International credibility as such that can be found within the corrputed halls of the UN has been greatly damaged by the one state one vote system within the UN.

    The only way for the IC to ever get back on its feet again, is by the free world’s rejecting the UN and beginning anew, with a United Nations of Democratic States, that has the same strict requirements that the EU uses in accepting members into the EU.

    If you think the US won’t act preemptively to protect its self interests just becuase Obama is in office, think again.

    But back to the issue at hand, something you keep skipping over, Hamas is 100% to blame for the tragedy in Gaza, no amount of beating around the subject will change that.

    International justice vis-a-vis Israel does not exist, due to anti-semitism. I have explained all of this time and again, and this is the last post on the subject.

  18. Palestine and Israel. No skipping over, just a different opinion as you. 2 to tango, 2 to fight, 2 to be blamed. Bye, and many thanks.

  19. HAHAHAHAHAHA if that’s the best you can come up with after all that…Israel has nothing to worry about at all.

  20. I agree. Israel has nuclear weapons and is allied with the US, Yes there is little to fear.

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