Proportionality Explained, Again

I've written on this before, myself. But here's an excellent article about the doctrine of proportionality in war.

"The notion that a lopsided casualty ratio between the IDF and Hezbollah or Hamas militants is sufficient evidence of some moral failing on the part of the IDF so radically departs from any recognizable understanding of the requirements of proportionality and so evidences a lack of moral seriousness that one cannot help but wonder whether something even more pernicious was involved."

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"Although the jus in bello principle of proportionality has to do almost entirely with the foreseen but unintended harm to noncombatants, there is one exception — although even that exception does not give Israel’s critics a leg to stand on. Scholarly discussions of proportionality often mention the avoidance of gratuitous harm"

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"...the law of war requires that gratuitous harm against enemy combatants be avoided. This principle, explains Cohen, rests on the fundamental premise that “it is not the destruction of enemy forces, but the imposition of the nation’s will on the enemy that is the ultimate goal in warfare, and this can sometimes be accomplished by neutralizing enemy forces without destroying them.”"

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"Why didn’t Annan and the other critics who claimed that Israel’s actions were not proportionate explicitly condemn with at least as much vigor Hezbollah’s systematic endangerment of civilians? Or do Annan and company believe that the hostage-shield tactics of terrorists and insurgents are required by “military necessity”? Walzer is right to suggest that before discussing issues of proportionality we should ask questions about responsibility; the matter of just who put noncombatants at risk in the first place is logically and morally prior to questions of proportionality."

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"...when Hamas or Hezbollah fighters choose to fire rockets from heavily populated areas, when they deliberately choose to make a response to their rocket attacks morally difficult by hiding among civilians, or seek to ensure that a response will be condemned throughout the world, or decide to use civilians as human shields, “the primary responsibility for [civilian] deaths then falls on the Hezbollah or Hamas militants who were using them.”"

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"This challenge to the laws of war on behalf of irregulars connects back to the issue of proportionality. The same argument that “military necessity” permits irregulars to eschew uniforms can be extended to operational behavior; perhaps it also allows irregulars to use babies and noncombatants as shields. By this topsy-turvy reasoning, a non-state actor would escape moral censure even though he completely disregards the principle of discrimination, but a military force that abides by the principle of discrimination both in refusing to target civilians and in refusing to use civilians as hostage shields would be subject to censure because its collateral damage is deemed disproportional. As Cohen remarked two decades ago,

'It is one of the striking oddities of contemporary politics and values that military necessity, so indignantly and unanimously rejected when it is brought in to justify the behavior of regular troops, should be so timidly readmitted through the back door when it is guerrillas who have come to call.'"

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"...even if many of the victims were civilians, ... When non-state fighters and militants hide among civilians, they may well bear a greater responsibility for civilian deaths.”

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"“the crucial means for limiting the scope of warfare is to draw a sharp line between combatants and noncombatants.”"

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"...terrorism is “a concerted effort to blur this distinction so as to turn civilians into legitimate targets.”"

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"Israel or any other country’s opposition to terrorist tactics can be vindicated by not engaging in terrorism. It can be vindicated by condemning without equivocation those who do. It can be vindicated by not using civilians as shields."

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"Israel’s military actions in Gaza were preceded by “widely distributed warning leaflets, more than 150,000 warning phone calls to terrorists’ neighbors, and nonlethal warning fire — unprecedented efforts in every respect.”"

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"...it is radical, indeed morally perverse, to claim that an army that strives to forewarn civilians fails, like terrorists hiding behind civilians, to behave morally."

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"Walzer “encourages and enhances terrorism” in a practical sense by insisting that moral state actors assume new operational obligations to protect civilians, by providing a greater incentive for terrorists and insurgents to hide among civilians, and by even providing an incentive for terrorist sympathizers to offer themselves up as hostage shields."

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"...those who willingly offer themselves to terrorists and insurgents as human shields, remains exactly where the traditional doctrine of double effect locates it: Never attack them directly. Never attack them as means to get at the enemy. And limit the unintended harm likely to fall upon them to that which is proportional to the just tactical and strategic objective. For the law of war to seek more than this is to incentivize what Paul Ramsey called the “wickedness” of using noncombatants as shields — and even the wickedness of terrorism itself."

ht: Sigmund, Carl and Alfred