Proportionality and Responsibility

by Jonathan Wallace

I have written many articles over the years highly critical of Israel and advocating a two state solution involving the foundation of a Palestinian state on a fair division of land. It took until now for me to feel more sympathetic to Israel than I do to the Palestinians.

The reason is that the Palestinians have, stunningly, squandered a major opportunity for land and peace and set their own cause back by decades through a combination of fanaticism and weakness. Israel gave back Gaza, and Hamas promptly started launching missiles from it. In a matter of weeks, all of the infrastructure that was starting to come with peace has been destroyed. Similarly, when Hezbollah got into the act and started launching ever more powerful missiles into Israel from Lebanon, the result has been to ruin all of the building, development and progress that followed the Israeli withdrawal from Lebanon.

Whose fault is it? There is an interesting phenomenon under which states hold the state actor in an assymetrical war responsible, while acting as if the nonstate actor is invisible or excusable, like a fondly regarded errant child. Israel, therefore, is receiving a barrage of criticism that its response originally to the murder and abduction of a few soldiers is disproportionate, while no one is attempting to deliver the message to Hamas or Hezbollah that their tactics of suicide bombings and rocketing of civilian targets is also disproportional.

I have to be careful here. Israel has made a lot of mistakes and committed some war crimes along the way. I disdain the style of argument that attempts to exculpate by arguing that others including the adversary are equally bad. What I would like to do instead is examine the context:in what kind of international legal and moral system is this discussion of proprtionality taking place? Once we have cleared that up, we can talk about the rules we would like to see.

Here are some definitions. From Wikipedia:"The overall destruction expected from the use of force must be outweighed by the good to be achieved." From a university site on the law of war,

"Proportionality for Jus In Bello requires tempering the extent and violence of warfare to minimise destruction and casualties. It is broadly utilitarian in that it seeks to minimize overall suffering, but it can also be understood from other moral perspectives, for instance, from harboring good will to all (Kantian ethics), or acting virtuously (Aristotelian ethics). Whilst the consideration of discrimination focuses on who is a legitimate target of war, the principle of proportionality deals with what kind of force is morally permissible.

Another university site defines the term as "a reasonable balance between the damage done in the responding attack and the military value of the targets destroyed". Proportionality, viewed in a vacuum, is a morally salutary rule. If someone shoots at you with arrows, you don't respond with nukes. Ultimately, the extremely effective Nazi deterrent for acts of resistance hangs in the background of any discussion of proportional responses--if they kill one Nazi, kill twenty French people, fifty Italians, whatever.

However, the entire intellectual framework of which proportionality forms a part has an air of absurdity about it. Rules of war must take their place in the same pantheon as rules of murder or rules of pillage--we are attempting to govern bloody and chaotic human behavior as a substitute for eliminating it. Proportionality means "if they kill you a little, you can only kill them a little." Also, there is no framework--no universally accepted law of war backed by a legal system ready to adjudicate these issues. None of the states complaining about disproportionality today have ever themselves been proportional when the shit hit the fan--nor were there ever any consequences. (Looking at the American example--though we are not one of Israel's critics today--in the most moral war we ever fought, the deliberate bombing and destruction of civilian targets such as Dresden and Hiroshima seems highly disproportionate.) Proportionality today is being used as a hypocrite's hammer, by people many of whom have no real dedication to a universal application of the concept.

Assuming the ultimate validity of rules of proportionality fairly and universally applied (I really do, despite the foregoing): Israel's response to the Hezbollah and Hamas rocket attacks has been proportional. This is an assymetrical war in which the adversary hides inside other people's nationstates and attacks from civilian areas. Therefore by definition there is no way to fight them without harming some number of civilians. While Israel has been, often appropriately, criticized for bombs that hit unintended targets, or targets wrongly selected, there is little evidence that Israel has been deliberately bombing civilian populations forthe purpose of instilling suffering and terror (the way the adversary does, or the way we ourselves did in Hiroshima and Dresden). Each Israeli strike appears to be linked to a military target. Israel has been dropping leaflets and even making phone calls warning civilians to leave (though of course this is not always possible). Israel's real choices are either to sit still and be rocketed without a response (something which would embolden the adversary to kill even more Israelis) or to respond appropriately while trying to kill as few civilians as possible. Israel has done the latter, very reasonably.

Most commentators fail to look at the larger ethics of the situation. Israel gave back land. A retreat to pre-1967 borders was fleetingly possible. Organizations dedicated to complete destruction of Israel responded by using the land that was returned as a platform to launch rockets. Yes, a lot of civilians have been killed. Hamas and Hezbollah put them in harms' way.

The ethics of responsibility needs to be examined as well. Terrorist organizations are masters of the dissemination and denial of responsibility. Even when they claim their deeds, finding the perpetrator, who is hiding in a nation-state somewhere, is always a problem. In the Middle East these states, while denying responsibility, have failed to eradicate or expel these organizations. This is a very key point. While I feel sorry for Lebanese civilians and Palestinian civilians killed in Israeli actions, I do not feel sorry for the Lebanese government or the Palestinian Authority. Want to avoid being bombed? Prevent terrorists from mounting attacks from your territory. Its that simple. If you tolerate their presence, you have delegated to them the ability to declare war on your behalf. Lebanon today is at war with Israel, because Hezbollah is. There is no way to sit it out and say, "We couldn't prevent it." If the Lebanese army or the Fatah security forces were out securing the missile sites, things would be different. The Israelis, dishonest as they are capable of being, have been correct for a long time when they said there was no partner for peace.

A moral issue raised in the case of almost all terrorist organizations is whether to regard them for political and strategic purposes as human actors or as something else (vicious animals, primitive life forms like a virus, natural calamities like the weather). The trend has been towards treating Hamas and Hezbollah as if they were a virus or the weather. When a Lebanese government minister criticizes the Israeli military response without mentioning Hezbollah, it is as if he said the following: "It is not our fault that tornados have been forming within our borders and causing destruction in yours. Your aggressive response is inappropriate." Criticism of Israel by various European and other commentators tends to sound very much like "Israel's response to the AIDS virus has been overbearing, cruel and inappropriate", as if Israel had been arresting and quarantining people suspected of being carriers.

It is to the advantage of terrorist organizations to be regarded as viruses or weather, and Hamas, Hezbollah and Al Qaeda long ago won this propaganda battle. The structure and behavior of secret terrorist organizations is rather virus-like; they infiltrate political and geographical bodies, have outbreaks, etc. Regarding them as primitive life forms or as natural phenomena makes them scarier and more powerful, and also completely lets them off the hook as human actors who can be held responsible for their choices. While terrorists sometimes like to take responsibility (videos of beheadings, claims disseminated to press organizations) they also like to do so in a way where responsibility is so widely and strangely disseminated it belongs to nobody. A prime example is the claim (think IRA, Al Fatah and now Hamas) that the political wing doesn't know what the military wing is planning ("We're here to negotiate; we have nothing to do with the fact that our colleagues are continuing to kill you"). Of course, insurgencies which survive to negotiate political solutions (think FLN in Algeria, and IRA) want, as the peaceful times begin, everyone to understand that they were human actors all along.

Israel's return of Gaza, and beginning of considerations for withdrawing from at least some of the West Bank, should have been assertively met in peaceful negotiations as a step to peace based on pre-1967 borders. That was a hell of a good offer. The people who rejected it and chose to launch a war that Lebanon and Palestine can ill afford are cut from the same mental and moral cloth as the fundamentalist killers of Al Qaeda.