Posted by: Tobias | January 17, 2009

On proportionality

Daniel Davies at Crooked Timber on the question of proportionality that has come up often recently in discussions over the war in Gaza:

Under Protocol 1, Article 57 [of the Geneva Convention], a commander has three duties (explained very clearly in “Constraints on the Waging of War: An Introduction to International Humanitarian Law” by Frits Kalshoven and Liesbeth Zegveld):

1) to do everything feasible to verify that the chosen target is a military objective

2) to take all feasible precautions in the choices of means and methods to avoid, or in any event minimise harm to civilians and damage to civilian objects

3) to refrain from carrying out an attack if may be reasonably be expected to cause such harm or damage in a quantity which would be excessive relative to the concrete and definite military advantage anticipated.

So, under international law, for example, “minimising civilian casualties” is a basic primary requirement – it’s something you always have to do, not something you get extra brownie points for and certainly not something you can trade off against a slightly dodgy choice of target. Furthermore, “minimised” casualties could still be “excessive” relative to the concrete and definite military advantage anticipated. And international law’s clear […] too about the kind of objective that can be set against the civilian casualties; it has to be “concrete” (no messing around with intangibles like “avoiding the rocketing of New York”), “definite” (as in, with a clear chain of causation to the enemy’s ability to wage war) and “military” (no bombing objectives in order to gain political advantage).

International law’s also very clear on the subject of “negative reciprocity” – the question of whether one side’s failure to play fair releases the other side from its obligations. The answer is it doesn’t, and specifically, that even if the other side breaches its obligation to protect its civilians, by using them to surround a military objective, you don’t get to ignore the existence of the human shields; the calculation of whether the harm to noncombatants is excessive relative to the CDM advantage has to be made on the basis of the actual harm anticipated, not some wishful-thinking assessment of what it ought to be.

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Responses

  1. Ok, I guess this one was directed at me? So let’s continue playing the devil’s advocate.

    As far as I understand, the aspect of “minimising civilian casualties” does not imply refraining from an attack all toghether in case civilian casualties cannnot be prevented (though arguably, the risk of civilian casualties would always be minimised if the attack doesn’t take place at all).
    Instead, this requirement could be fulfilled by making efforts of warning civilians gathered in a building before this building becomes the target of an air strike.
    Yet, of course, this still doesn’t prevent civilians from being killed, possibly also because Hamas doesn’t allow them to leave the building. In this case, an evaluation of the proportionality of the attack depends crucially on the definition of the term “excessive”. But when it comes to evaluating the price of destroying one of Hamas’ launching pads or tunnels, the interpretation of this term is likely to differ quite significantly depending on whether you ask a head of a family in Gaza City or Sderot.

    As to an attack’s objectives: While little is known on the precise aims of the Israeli government, I would still think that the most immediate objectives of the strikes are rather well-defined: the destruction of the military infrastructure of Hamas, including the tunnels which are used to trasport weaponry from Egypt to Gaza. In my view, this objective qualifies as “concrete”, “definite”, and “military”.

    As to your last point: I believe that there’s complete agreement that negative reciprocity should not hold.

  2. This wasn’t really directed at anyone. I, too, am just trying hard to understand the issues involved and what I think about them. This was just a way of letting you guys in on some of the things I’ve been reading. That said, I’m glad you took the bait =)

    I agree with you on almost all points. It was never my intention to argue that killing any civilians at all constitutes a violation of the Convention and is therefore a war crime and I don’t think I ever did. Of course there will always be civilian casualties in war. That simply cannot be avoided, certainly not in a place as crowded as Gaza.

    What I will disagree with you on is that the “immediate objectives of the strikes are rather well-defined”. I have no trouble getting on board with destroying the tunnels. But the Israeli government seems to be taking an awfully inclusive definition of what constitutes the “military infrastructure of Hamas”, a definition that has more than once clashed with mine and, I would claim, that of international law (e.g. the bombing of police stations)

    But even if we agreed on what targets are legitimately military ones, I still think the methods used to destroy these targets are sometimes excessive and disregard the commandment to minimize civilian casualties. Using shells that inflict damage in a radius of up to 300 meters in Gaza city, to give just one example, certainly does (and I’m not sure you have the right thing in mind when you speak of ‘launching pads’, see third picture here, and how much of a military advantage is gained by destroying one). I cannot imagine any reasonable definition of the word under which this kind of thing would not be “excessive”.

    Lastly, I wish there were complete agreement about negative reciprocity being inadmissible, but this is simply not so. I hear this argument not only from otherwise serious people in talk shows and internet discussions but also from Israeli government officials.


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