Israel: The “Proportionality” Argument – Again

31 Dec, 2008 by McQ

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It seems like each time some terrorist group attacks Israel and Israel responds we have to go about explaining “proportionality” again.

That’s because it is obvious some self-appointed experts haven’t a clue.

Some apparently think that a proportional response means the math must add up. If they only kill 2 or 3, that’s all you’re allowed to kill if responding – minus civilians, of course. Naturally the fact that the original 2 or 3 the terrorists killed were civilians always escapes notice.

Or the math may limit the number of weapons used against an enemy. That most likely wont be used because I’m sure Israel’s latest response is still well behind the 4,000 rockets and thousands of mortar shells which have rained down on it since 2001.

In fact, the concept of proportionality is a part of “Just War”, or what is or isn’t legitimate in warfare. Of course, in most cases that assumes that two civilized antagonists are fighting it out and both are open to “rules”.

But when you’re fighting terrorists, it seems it is only one side which is held to such doctrines. In this case it is Israel.

Why the double standard?

Apparently we expect terrorists to be inhuman. When they are we accept that as the nature of the beast. Consequently when they purposely lob rockets targeting civilians and filled with ball bearings, we essentially pass the behavior off as typical. They’re not the subject of scrutiny like Israel is because their barbarity is expected behavior. They’re terrorists. We expect that of terrorists. And they take advantage of our willingness to essentially be less critical of their behavior.

So while Hamas continues attempting to kill Israeli civilians with missiles designed to maximize their civilian killing potential, nary a question is asked about whether they use weapons and ammunition which “conforms with international law” or “proportionality”.

They’re terrorists for heaven sake.

Israel, however, is held to a different standard. Proportionality is only ever uttered as a criticism against them. It is an attempt to discredit and defang a legitimate use of force.

Let me explain.

A part of the Just War doctrine is the principle of double effect. The principle outlines parameters and conditions in which the conduct of warfare is deemed just or unjust.

Michael Walzer, in his outstanding book “Just and Unjust Wars: A Moral Argument with Historical Illustrations” does a terrific job in laying out the double effect principle as it applies to civilians and combatants in a time of war.

The principle is argued as follows:

1) The act is good in itself or at least indifferent, which means, for our purposes, that it is a legitimate act of war.

2) The direct effect is morally acceptable – the destruction of military supplies, for example, or the killing of enemy soldiers.

3) The intention of the actor is good, that is, he aims only at the acceptable effect; the evil effect is not one of this ends, nor is it a means to his ends.

4) The good effect is sufficiently good to compensate for allowing the evil effect. Justifiable under Sidgwick’s proportionality rule.

Modern warfare, except for on the sea or in the desert, always takes place in close proximity to civilians. It is as unavoidable as the sun coming up. So at best, what combatants can do is to try their very best to minimize civilian deaths. As Walzer points out, the principle of double effect is a “way of reconciling the absolute prohibition against attacking non-combatants with the legitimate conduct of military activity”.

So back to our 4 points as they apply to the Israeli effort. Assume point 1 is talking about an attack on a target which is in a civilian area. A rocket launcher for instance. Taking out the rocket launcher which is firing on Israelis would be classified as attacking a legitimate target in a legitimate act of war. In that context, the act is “good in itself”.

Obviously then point two is also satisfied. The destruction of the rocket launcher and crew, a legitimate act of war, is therefore morally acceptable. So far, so good.

But as Walzer points out, the burden of the argument is carried in point 3.

Starting with the first part of the point, “the intention of the actor is good, that is, he aims only at an acceptable effect.”

“Acceptable effect” in that context means enough to destroy the rocket launcher and crew but not more than that. The accepted effect morally would be the utter destruction of the target. But there is another consideration which must be taken into effect as well: the location of the rocket launcher.

If it were alone in the desert surrounded by nothing but other military targets, then not many would care if you dropped a 500, 1,000 or 2,000 lb bomb on it. What ever was available would be fine. On the other hand, if it were in a civilian area and you had a choice of munitions, that which would effectively destroy the target while minimizing death to civilian would be the morally defensible munition to be used.

An important point here. The key word is “minimize”. Note that it isn’t to prevent the death of civilian, but to minimize them. Which brings us to the second part of point 3: “the evil effect is not one of his ends, or is it a means to his ends”.

In other words, the evil effect – death to civilians – isn’t something for which the combatant is striving. He’s not out to kill civilians and he isn’t attempting too either. His intent is to avoid them where tactically possible. But make no mistake – his mission to engage and destroy the enemy will take precedence over his attempt to minimize civilian casualties.

Point 4 mostly speaks to proportionality. Is the good effect [destroying the rocket launcher] of sufficient good that it compensates or ameliorates the evil effect [killing the civilians]? “Sidgwick’s rules of proportionality” referenced by Walzer are from Henry Sidgewick, and state, it is not permissible to do, “any mischief which does not tend materially to the end, nor any mischief of which the conduciveness to the end is slight in comparison with the amount of the mischief.”

Applied to the Israelis it means that morally they should respond to the threat or action of the enemy proportionally, i.e. go after those who are committing acts of violence and their means of doing so. Or as we’ve mentioned above, do what is necessary to destroy the enemy but no more if it can be reasonably helped.

That’s the argument.

So what is the toll thus far in terms of civilians?

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.

And reports tell us that they’ve used smart munitions to minimize civilian casualties. Given the reports above, that seems to be their intent. So since Hamas is still in charge and still attacking Israel while Israel takes every precaution it can reasonably take to minimize civilian casualties, their attacks remain proportional until Hamas surrenders or is destroyed.