Proportionality and Discrimination in Israel's war against Hamas

Cross-posted to Catholic Friends of Israel

There is an aspect to the debate over "proportionality" that seems to reduce it to a mathematical tit-for-tat -- as if the governing consideration was maintaining an equal body count among both parties. A good example is this post from Vox Nova:

I’m not sure I really care about anyone’s definition of proportion if it involves over 270 dead in 7 days to “protect” from 7 dead in two years from rocket attacks in a population over 5 million. As I would likewise condemn the daily shootings in Milwaukee, I will also go out on a limb and say bombing Milwaukee would be a gross injustice, be it by the State of Wisconsin or any other entity empowered to promote justice and the general welfare.

To which DarwinCatholic responds:

I guess the question would be: Does incompetance in achieving one’s aim (I think one can hardly imagine that it’s Hamas’s intent not to actually kill many people when firing thousands or rockets into Israel) make one less deserving of retaliation for an attack? It would tend to strike me that the fact that the faction which controls the government of Gaza is constantly launching rockets into Israel would make taking them down justifiable (though one can certainly question Israel’s chosen means) regardless of whether they generally achieved their goal of killing Israelis.

David Keyes' strikes a similar note in Commentary's blog "Contentions":

Israel is like a battered woman who speaks glowingly of the days when she is beaten lightly. Any sensible nation would recognize that the number killed from such attacks is utterly irrelevant. What matters is the number of people the terrorists intended to kill and the number of citizens living in fear. Six people were killed in the 1993 World Trade Center attack. But 60,000 would have been killed has the terrorists not been so dim-witted and miscalculated the proper size of the bomb. The question arises: Should the US have responded to six deaths or 60,000 deaths? The answer is patently clear. Stupidity, incompetence and the inability to shoot accurately does not absolve terrorists of responsibility for their intentions. Israel, in other words, should respond to every rocket as if it landed directly on a restaurant or school.

Again, since Israel left Gaza in 2005, giving Palestinians an opportunity to administer their own affairs, more than 6300 rockets and mortars have been fired by Gaza into Israel -- more than 3,000 in the past year alone. It is true that the body count inflicted by Hamas is minimal -- due to a combination of Israeli's speedy reaction to warnings of impending attacks; the poor accuracy and short range of some of its rockets (such as the home-made Qassam, lacking any guidance system); and the sheer good fortune (as when a rocket hit a synagogue in Sderot shortly after services ended).

Obviously, the low Israeli body count at present is certainly not for lack of trying on Hamas' part. On December 31st, Hamas fired 60 long-range Chinese rockets at Israel ("Danger Room" Wired.com 12/31/08):

These weren't short-range, home-made Qassam rockets that make up the bulk of Hamas' arsenal. Nor were they the longer-flying 122 mm Grad rockets, designed by the Soviets and made in Iran. Some of today's rockets flew an alarming 22 miles, hitting an empty school house in Beersheva, the unofficial capital of the Negev Desert region. And they were made in China.

The Israel military says that these Chinese rockets not only fly twice as far as the Grads, and four times further than the Qassams. They can "potentially cause much greater damage," too -- with "metal pallets that can spread out across a radius of up to 100 meters from the point of impact," according to YnetNews.

The presence of these rockets changes the equation significantly, placing in grave danger all communities within 24 miles of the Gaza strip.

In The Proportionality Trap" (Commentary 12/28/2008), J.G. Thayer examines some problems in deciding the "proportionate use of force" against a terrorist organization:

The notion that one should only respond to an attack with roughly the same force used by the aggressor is based on some fatally flawed presumptions.

The first is that the aggressor can be expected to respond in a rational manner. In this case, the presumption is that Hamas is actually interested in a peaceful solution and mutually beneficial situation. That is provably false. One need only look at Hamas’s charter and the group’s words and deeds to see that it is unabashedly dedicated to the absolute destruction of Israel.

The second fallacy is more subtle. The point of a “proportional” response is that it is intended to end the current hostilities and return to the status quo. And in this case, it implies that the status quo prior to the provocations was acceptable.

Hamas speaks of a “truce,” but their definition of a “truce” is one that no one else would recognize as valid. It consisted of a steady, constant bombardment of Israel by rocket and mortar shells. When they declared the truce to be at an end, they escalated the attacks, which in turn prompted Israel’s air strikes. Had Israel restrained itself to a “proportional” attack, then it would have been saying that the prior status quo — the rocket and mortar attacks reduced to one or two a day — was acceptable.

Thus far, those criticizing Israel have yet to offer a reasonable and practical suggestion as to how it can defend itself against Hamas' terror attacks.

In "Gaza and the Law of Armed Conflict", Michael Totten examines the behavior of Israel and Hamas in light of "The Laws of Armed Conflict" between civilized nations; namely, the idea of proportionality:

Proportionality, in short and according to the law, “prohibits the use of any kind or degree of force that exceeds that needed to accomplish the military objective.”

In other words, if a surgical strike is all that is needed to take out a Grad rocket launcher, carpet bombing the entire city or even the neighborhood isn’t allowed.

Hamas is still firing rockets; therefore, the IDF is not using more force than necessary to disrupt the firing of rockets. Israel, arguably, is using less force than necessary. And the IDF, unlike Hamas, does what it can to minimize injury to civilians. Militants often operate against Israel from civilian areas,” the Associated Press reported last week. “Late Saturday, thousands of Gazans received Arabic-language cell-phone messages from the Israeli military, urging them to leave homes where militants might have stashed weapons.” Israeli commanders are even warning individual Hamas leaders that their homes are on the target list so they can vacate the premises in advance.

and discrimination in the selection of targets:

Distinction, according to the Law of Armed Conflict, “means discriminating between lawful combatant targets and noncombatant targets such as civilians, civilian property, POWs, and wounded personnel who are out of combat. The central idea of distinction is to only engage valid military targets. An indiscriminate attack is one that strikes military objectives and civilians or civilian objects without distinction. Distinction requires defenders to separate military objects from civilian objects to the maximum extent feasible. Therefore, it would be inappropriate to locate a hospital or POW camp next to an ammunition factory.”

Hamas violates this doctrine in two ways at once. Its fighters launch Qassam, Katyusha, and Grad rockets into Israeli civilian areas, and they fire those rockets from inside Palestinian civilian areas. Both are prohibited by the Law of Armed Conflict.

The law does not, however, prohibit Israel from striking legitimate military targets in civilian areas. “Although civilians may not be made the object of a direct attack, the LOAC recognizes that a military target need not be spared because its destruction may cause collateral damage that results in the unintended death or injury to civilians or damage to their property.”

Curiously, the majority of the commentary on the war has focused not so much on Hamas' ongoing terrorist attacks on Israeli towns (with the intent of killing and injuring civilians and promoting terror -- and with the stated intent of obliterating the Jewish state) as the measures Israel is taking in self-defense.

Probably the most substantial treatment of this issue that I've seen to date is the recent paper, International Law and Fighting in Gaza, by Justus Reid Weiner and Avi Bell (Jerusalem Center for Global Affairs).

Additional News & Commentary

• Moral Clarity in Gaza, by Charles Krauthammer. Washington Post January 2, 2009. "At war today in Gaza, one combatant is committed to causing the most civilian pain and suffering on both sides. The other combatant is committed to saving as many lives as possible -- also on both sides."
• Hard Truths About the Conflict, by Robert J. Leiber. Washington Post January 1, 2008:

  ... what we are witnessing is not a "cycle" of violence. The IDF airstrikes are a reaction to the unrelenting rocket and mortar attacks against the Jewish state. Israel withdrew from Gaza in 2005 in the hope that the Palestinians would use the opportunity to prepare for an eventual agreement and a two-state solution in which they would live side by side in peace with Israel. Since then, there have been more than 3,500 such attacks aimed at areas of southern Israel, including over 200 launches since Dec. 19, after Hamas chose not to extend a six-month truce. The expanding range of these missiles now covers an area populated by as many as 700,000 Israelis.