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Sunday, January 04, 2009

Dershowitz on proportionality in war

In a recent op-ed published in the Wall Street Journal, Alan Dershowitz replies to a popular criticism of Israel's latest tactics in Gaza. This is the claim that Israel's response to Hamas is somehow "disproportionate."

The argument usually goes something like this:
1. Prior to Israel's attack, Hamas killed X number of people with indiscriminate rocket fire.
2. Israel's response has killed Y number of Palestinians.
3. Y is greater than X.
4. Therefore, Israel's response is "disproportionate", and hence immoral.

This is a bad argument, for a number of reasons. In just war theory, proportionality comes in on two levels: first, when one is evaluating the justice of going to war in the first place; second, when one is evaluating conduct once war has ensued.

One of my old professors wrote the Stanford Encyclopedia of Philosophy's entry on the topic, which you can read here.

Put concisely, neither meaning of proportionality allows one to evaluate the morality of wartime action through such a simple equation as that used in the argument above.

In his op-ed, Dershowitz makes his case along similar lines:

Israel's actions in Gaza are justified under international law, and Israel should be commended for its self-defense against terrorism. Article 51 of the United Nations Charter reserves to every nation the right to engage in self-defense against armed attacks. The only limitation international law places on a democracy is that its actions must satisfy the principle of proportionality.

War for self-defense is justified, but conduct in war is subject to a number of moral limitations. Most importantly, a nation cannot deliberately target non-combatants. Within the constraints of proportionality, foreseen but unintended non-combatant deaths are acceptable (though regrettable.)

Proportionality does not require that a nation's use of force be somehow "equal" to the force to which it is responding. What proportionality requires is that the use of force be limited to the minimum amount required to achieve military goals.

As Dershowitz notes:

The claim that Israel has violated the principle of proportionality -- by killing more Hamas terrorists than the number of Israeli civilians killed by Hamas rockets -- is absurd. First, there is no legal equivalence between the deliberate killing of innocent civilians and the deliberate killings of Hamas combatants. Under the laws of war, any number of combatants can be killed to prevent the killing of even one innocent civilian.

Israel is not deliberately killing non-combatants. In addition, its conduct falls within the constraints of proportionality. Insofar as stopping rocket attacks on its citizens is a worthy end, it is permissible for Israel to use a large degree of force to stop Hamas, as long as the force is intended to stop Hamas (and not, for example, intended to kill non-combatants.)

Part of Dershowitz's argument is that the fact that the rockets Hamas launches have so far killed few civilians does not really matter: it is the risk the rockets pose to civilians that makes Israel's use of force justified.

One can debate whether Israel's tactics will stop Hamas. Perhaps more force is needed, rather than less. But the argument that Israel must be condemned simply because it has recently killed more people than Hamas is a non-starter.

Posted by Terrence Watson on January 4, 2009 | Permalink

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A fact often missed is that the Israeli Defense Ministry stubbornly refused to employ or even test technological means to intercept the Kassam rockets fired from Gaza.

To make a long story short, Israel refused to protect its attacked citizens with a C-RAM system based on the Phalanx canon or a laser canon. Both said to be tested successfully in Iraq for similar aims.

There were serious public objections to this policy, even a semi-campaign led by the Haaretz newspaper to at least try one of these weapon systems but the MoD stood firm.

Posted by: An Israeli | 2009-01-04 5:46:55 PM

Israeli,

Interesting stuff. I just did a search. Is it true that the Ministry of Defense has recently shifted gears on using some kind of missile defense system and come out more in favor of it?

Thanks for bringing this up!

Best,

Terrence

Posted by: Terrence Watson | 2009-01-04 6:27:58 PM

The UN Article 51 misses the most important aspect of any war. IE. Once war is started (Declared or not) Art.51 and The Geneva Convention become sidelined. One has only to look back at London; Coventry; Hamburg; Nagasaki and Hiroshima to realize that a "Tooth for a tooth, an eye for Etc." will prevail and proportionality only breeds dis-proportionality.
Article 51 was constructed for this very reason, but obviously it is toothless.

Posted by: David N Morgan | 2009-01-04 6:28:04 PM

Hello "An Israeli":
Do you have practical experience with the Phalanx ICWS? Do you understand the engineering and design expectations of the ICWS? As you suggest that this may be something that Israel could use, allow me to pass on a few hastily scribbled thoughts.

Phalanx is a line of sight system; its targeting system must be able to see the rocket or missile, hence the reason they are installed, without exception, on naval vessels. Also, it works best when the rocket/ missile is coming AT it, not flying overhead or laterally from it (BTW, what do you think would happen to the thousands of rounds of explosive munitions that will MISS the rocket? In a naval setting they fall into the ocean, in a land setting they fall onto people). Plus the rockets that are used against Israeli civilians do not fly very straight, they oscillate wildy while in flight making a direct hit from a few thousand metres very difficult- cruise missiles, for which Phalanx is designed to protect against, follow a fairly flat and straight tragectory, making them a predictable and relatively "easy" thing to target and take down. Israel would needs ten of thousands of static ICWS' operating day and night for this to be close to practical.

I won't even mention your idea of a "laser cannon". Stop watching Star Wars. There are laser targeted cannons, but again, with the rockets spinning like tops while in flight how to you get a target fix? Such systems work well with the "predictable" movement like that of, say, a tank, not so well with a whirling dervish.

What really is funniest though is that your idea would be that Israel would have to just sit and allow terrorist rockets to be fired at it, hoping that a weapon system designed for en entirely different job would MAYBE protect them. The best way to protect against civilian death by terrorist rockets is to prevent the firing of the rockets, and the only way to prevent that is to kill those firing rockets. Lets all pray that the IDF is able to finish the job.

Posted by: Dave Tracey | 2009-01-04 6:51:19 PM

The U.N. is like a modern politically correct school with a "zero tolerance" policy for violence where the bully and victim are considered equally culpable. Except of course that Israel is more equally culpable than others.

Posted by: Michael Albert Shaw | 2009-01-04 7:09:09 PM

Israel is not deliberately killing non-combatants? Let's consider that proposition for a moment. We're all deemed to intend the logical and foreseeable consequences of our acts. When you resort to aerial bombing of a densely populated area, you're fully intending to kill all those within the lethal blast radius of the weapon you choose to employ.

Did America not intend to kill the entire populations of Hiroshima and Nagasaki within the lethal radius of the weapons they employed? Of course they did. To claim otherwise would be childish.

Intent isn't based on whether Israel desired the death or mutilation of any particular woman or any particular child, the question is whether, in dropping high explosive ordinance, they knew or ought to have known that, given the target, they would probably kill innocents. With the use of the weapons used by the Israeli Air Force, the queestion answers itself.

Modern aerial bombardment, whether we're trying to winkle out a few Taliban hiding in a village in Afghanistan (or an Afghan wedding party for that matter) or a supposedly nasty individual who is found in a densely populated place, is an act of terrorism in that it terrorizes the innocent and inflicts not merely death but massive physical and emotional damage.

Aerial bombardment is a cheap and dirty form of warfare. Losses among pilots are extremely rare. It's pretty much a one-way street.

I carry no brief for Hamas and certainly none for Israel either. Both have blood on their hands, in direct proportion to their ability to butcher the innocents of the other.

Posted by: MoS | 2009-01-04 7:44:16 PM

MoS is correct about ariel bombing, though it is hardly cheap, modern warplanes being rather expensive and all. I do quibble with the actual number of "innocents" in Gaza, excepting the young and feeble though.

Posted by: Dave | 2009-01-04 7:56:48 PM

What is a non-combattant? Is it the individual who willingly labours at creating munitions? Is it the worker who creats the infrastructure that allows weaponry to be used? Is it the farmer that supplies the victuals to feed those employed directly in the fighting? Is it the person who joins the crowd in the street to support the fighters? Is it those who supply the homes that hide the fighters? Is it those who stand by and don't rise up against Hamas? What is a non-commbattant?

Posted by: DML | 2009-01-04 8:33:42 PM

Somehow (Either my intelligence or other) I am missing the point of most of the comments.
In 1945 the Israelis were given back their supposed "Homeland". The Palestinians didn't like it and for the last 53 years "Skirmishes" of every kind have become an everyday affair.
Proportionality and Article 51 misses everything to do with warfare, namely you fight back with what you have.
The Hamas fire rockets at Israel (Not sure how pinpointed these rockets are) but Hamas knew that innocent civilians would be harmed. Israel retaliates with Airstrikes (Once again knowing innocent civilians would be harmed). This is war like it or not.
Past "Wars" were not concluded by Politician's words, but by the threat that unless the weaker (Not the right or wrong) side realizes that further escalation is imminent and possible. Israel and or Hamas will awaken to this in due course.
Leave them to it, it is unfortunate but it beats the long drawn out episodes like the IRA and Britain among others taking decades to conclude.
This is a very callous approach, but being long in the tooth I have come to realize that Diplomatic solutions don't work and until the human race collectively starts to respect each other nothing short of the above will prevail.

Posted by: David N Morgan | 2009-01-04 8:54:06 PM

Actually, Dave, the US Army is working with Israel on field-deployable laser cannons that have already successfully shot down artillery shells(!) in flight. Of course as you say the weak link in the chain is detection, and these crappy little bottle rockets are so small as to be virtually undetectable. Even thermal would probably be useless, given the short flight times and the burning desert background they'd have to pluck a missile plume from. A line of highly sensitive microphones might have better luck.

Anyway, Israel has the right to retaliate against a state that is lobbing artillery onto its territory. The fact that the Palestinians are insanely overmatched does not mean the Israelis have to tread lightly. It means that Hamas should give their heads a shake. ANY amount of retaliation on Israel's part would be deemed "excessive" by Arab governments, so they may as well go the whole hog.

Posted by: Shane Matthews | 2009-01-04 8:56:35 PM

Hey Joe, just wanted to say "Thanks for the comic relief".

Posted by: prairie dog | 2009-01-04 9:03:48 PM

Joe wrote: “1. Most of the world, apart from those areas controlled by the rat-faced jewish cabal, know full well of the immeasurable lust for blood that jews exhibit.”

1. Proof, please.

2. Most of the “massacred” were Hamas thugs, and the few civilians who were killed were either being used as human shields or ignoring Israeli warnings to vacate their homes. The fact that Israel should feel compelled to give advance notice of military strikes is in itself insane. You can be sure the terrorists will be long gone, leaving the civilians to take the hit.

3. They may have been “aware” of sacrificial killings, Joe, but no proof of this fantastic fable has ever been discovered. You, apparently, are NOT “aware” that the “Protocols of the Elders of Zion” was in fact a forgery and a provocation. The practice specifically requires a lamb, not a child. The Jews were actually among the FIRST Western peoples to abandon human sacrifice, even as neighbouring Semitic peoples burned infants alive in hollow idols of Melqart and made their children pass through the fire.

4. Boo hoo. If Hamas would stop with the rocket attacks there’d be no more military action. Why aren’t you condemning that, Joe?

5. I’ll give you 1000 to one at those odds. Against.

6. Joe, you’re a troll. Mind your face doesn’t have an unfortunate encounter with the hooves of the Billy Goats Gruff.

Posted by: Shane Matthews | 2009-01-04 9:08:38 PM

There is no peace to be had with muslims. All over the world muslims are in conflict with their infidel neighbors. There will only be peace for awhile after another bloodletting of apocalyptic proportions. Cue WW3.

Posted by: Sean | 2009-01-04 9:22:46 PM

MoS: “1. Israel is not deliberately killing non-combatants? Let's consider that proposition for a moment. We're all deemed to intend the logical and foreseeable consequences of our acts. When you resort to aerial bombing of a densely populated area, you're fully intending to kill all those within the lethal blast radius of the weapon you choose to employ.”

1. MoS, don’t use phrases like “let’s consider that proposition for a moment,” or “sit with that for a second.” They do not convey authority. On the contrary, they most often suggest that a subjective, emotional, and biased opinion will follow. Israel provides advance warning of its targets, allowing civilians time to evacuate. Does Hamas? No, and they couldn’t, even if they had they had the inclination, because those coke-bottle rockets are so incredibly inaccurate that the only safe place is the launch site.

2., 3. You may not dance. You’re trying to redefine the accepted notion of intent into a context more supportive of a position that you had taken from the outset. Rather than examine the facts objectively and compute them rationally, you’ve instead begun with a decision you’ve already made and rationalized after the fact. It’s not kosher to work the formula backward that way, bub.

4. That aerial bombardment is an “act of terrorism” is your opinion, not fact. Even a war that successfully avoided a single civilian casualty would terrorize non-combatants in every nation concerned, because a lot of those non-combatants have combatant husbands, boyfriends, sons, fathers, relatives and friends. And if the war goes badly life can be crappy in general. Of course, there has not been a single war in history that completely avoided civilian casualties, so let’s not indulge in useless temporizing. And emotional damage, lest you forget, is not compensable.

5. Aerial bombardment is the most expensive form of warfare; those guided munitions are not cheap, and neither are the aircraft that drop them. It’s also easier on the party being bombed, because you suffer only surgical hits against precise targets rather than twenty regiments of infantry grinding the entire city underfoot. Aerial bombardment is only useful for softening up defences; no territory is taken until you have boots on the ground. You can take cover from bombs. Good luck hiding from determined foot soldiers.

6. Bull. Your entire harangue has targeted Israel, who at least makes an effort to minimize civilian casualties. Hamas and other terrorists target civilians exclusively. Only knuckleheaded and prejudicial reasoning could count the two as equivalent, much less argue that A really is worse than B. This is the true example of disproportionality, not hammering an incompetent enemy who nevertheless can’t keep his finger off the launch button.

Posted by: Shane Matthews | 2009-01-04 9:27:49 PM

Actually, DML, those who sympathize with Islamist terrorists have an interesting quirk of logic on their side. Since the only true non-civilians are uniformed soldiers, technically every terrorist, suicide bomber, or munitions maker is a civilian. In a place as infested with terrorists as Gaza, you really could almost play eenie-meenie-minie-moe.

Posted by: Shane Matthews | 2009-01-04 9:31:07 PM

I'm tired of the Gaza conflict already but I'm more tired of Gaza. I say bomb the border crossing with Egypt and give Gazan's a choice: flee to Egypt or into the sea.

I just don't understand all the protesting of Israel's relatively gentle military action. Isn't this what Hamas wanted? Isn't this exactly what Hamas was hoping for? A chance to fight and possibly kill a few Jews?

Posted by: chad | 2009-01-04 10:11:04 PM

With all the wealth in the Arab world why haven't oil rich countries like Saudi Arabia, Kuwait and Yemen (et;al) stepped up to help their Palestinian brethren? Why haven't they opened their borders and banks to help these people re locate to other nations and become productive citizens?
The answer I believe is that the Arab world quite enjoys leaving this thorn in Israel's side and are quite happy to leave things just as they are.
They have a great source of terrorist recruits in Palestine and they are able to pound their collective fists on the desk when Israel moves to protect itself. Obviously Hamas cares not at all for its own civilians.
In short, the Palstinians (Hamas) and the Arab world in general seem to be provokong this mess.
They will reep what they have sown.

Posted by: JC | 2009-01-05 6:49:37 AM

MoS:

"We're all deemed to intend the logical and foreseeable consequences of our acts."

I don't don't think this is right.

For example, I anticipated that, when I made this post, someone would disagree with the distinction between intention and foreknowledge. But certainly, I didn't intend for anyone to disagree with me on that point.

Yet that was a logical consequence of making this post.

Best,

Terrence

Posted by: Terrence Watson | 2009-01-05 9:46:17 AM

I would be more wary if i was facing the ww 2 versions of these items, especially considering the amount of damage caused by a Katyusha rocket or one fired from a Nebelwerfer..

http://www.youtube.com/watch?v=eN_AJmWB2-I&NR=1

Saying that, they don't just fire the 'coke bottle' Kassam, they have larger and more lethal rockets in their arsenal, though i dare say the big stuff is kept for special occasions..

I would be more scared of the 60, 80, and 120mm mortars Hamas deploys..those pack a real wallop.

Posted by: Kursk | 2009-01-05 12:47:42 PM

JC, you're right in that the Arabs are quite happy to use the Palestinians as proxy soldiers in their eternal intifada against the Jewish state. That and the fact that Palestinians are thoroughly loathed in the Arab world.

Palestinian society is increasingly obsessed and dysfunctional and no Arab leader in his right mind would welcome the products of such a society into his own state. A few talented individuals, perhaps, but certainly not the entire population or even a significant portion thereof.

It makes more sense for Arabs to throw money and cheap weapons at Gaza and the West Bank and let the Palestinians grind away at a country that has bested most of them on the field of battle at one time or another. They don't care if Palestinians go extinct in the process.

Posted by: Shane Matthews | 2009-01-05 1:29:37 PM

The problem with artillery, Kursk, is that it produces a distinctive muzzle flash that is easily located. Such guns can't be packed up and moved as quickly as one would like and thus would be sitting ducks for Israeli pilots. Qassams, on the other hand, can be launched from anywhere, are much more difficult to track to their site of origin (which might be a schoolyard or playground or the roof of a mosque), and are much stealthier, making them ideal for a campaign of long-term, low-level harassment.

Posted by: Shane Matthews | 2009-01-05 1:37:37 PM

wait a minute...

I read the Stanford U prof's entry on proportionality cited by Terrence abve, and this is what it says:

A state must, prior to initiating a war, weigh the universal goods expected to result from it, such as securing the just cause, against the universal evils expected to result, notably casualties. Only if the benefits are proportional to, or “worth”, the costs may the war action proceed.

So, yes, the "Y is greater than X" equation is too simplistic. But isn't this a bit of a straw man? Who exactly is making this simplistic claim?

In any case, Terrence's argument that "all proportionality requires is that the use of force be limited to the minimum amount required to achieve military goals," is not supported by his Stanford prof's reference.

Posted by: bugjah | 2009-01-07 12:36:04 PM

Bug,

You're confusing the two levels of proportionality. The sense of proportionality I was referring to in the quoted passage refers to "justice in war."

The justice in war constraints should be observed even if the requirements of justice of war are not (even an unjust war can and should be waged in a just manner.)

Best,

Terrence

Posted by: Terrence Watson | 2009-01-07 12:52:56 PM

Bug,

Another thing: my initial post probably could have been clearer. Sorry about that. Dr. Orend's entry in the encyclopedia is much better, but even he talks about proportionality in at least two different places, corresponding to justice of war and justice in war.

Thanks for your comment!

Posted by: Terrence Watson | 2009-01-07 12:55:31 PM

Terrence,

Orend actually talks about proprotionality in all three sections of his discussions of justice of war:

1) Jus ad bellum, or the justice of resorting to war in the first place;

2) Jus in bello, or justice during war;

and 3) Jus pos bellum, justice in war termination.

I assume that you are raising the issue, Terrence, of whether class 1 or class 2 applies to the Gaza discussions vis-a-vis proportionality.

As Orend states, those held responsible for violations of the principles of jus ad bellum are heads of state, while those held responsible for jus in bello are military commanders & soldiers.

Proportionality in jus ad bellum is as I described: "Only if the benefits are proportional to, or “worth”, the costs may the war action proceed."

Proportionality in jus in bello is as you described: "Soldiers... must restrain their force to that amount appropriate to achieving their aim or target."

I would argue that the former is more appropriate to the discussion here. The question is whether the Israeli response to rocket attacks -launching a massive bombing campaign followed by invasion- violates the principle of proportionality.

I don't think many people would deny that the rocket fire, as a clear (and illegal) act of aggression, is a just causus belli (justification for war). Nevertheless, Orend clearly points out that in order to go to war justly, "a political community, or state, must fulfil each and every one of the following six requirements: just cause...right intention...proper authority...public declaration...last resort...probability of success....[and] proportionality."

Orend concludes the section on jus ad bellum thusly (his emphasis):

Just war theory insists all six criteria must each be fulfilled for a particular declaration of war to be justified: it's all or no justification, so to speak. Just war theory is thus quite demanding, as of course it should be, given the gravity of its subject matter.

By the way, terrence, i greatly appreciate the fact that you linked to Orend's article. It is a very well balanced essay that greatly illuminates issues that have been clouded quite a bit lately. I would argue that the Dershowitz piece that you referenced is actually a contributor to this "cloudiness."

Cheers,
bug

Posted by: bugjah | 2009-01-08 7:58:48 AM

Alan Dershowitz has become perhaps the most prominent spokesman for Israeli interests.
He has also been caught plagiarizing and putting forth lies (say it aint¹ so!) in his books, such as his ³The Case for Israel². Norman Finkelstein has done a great job of skewering Dershowitz with regards to this. But here is some dirt on Dershowitz, a Jewish-American Zionist, that he has thus far successfully kept out of view from the general public due to his formidable litigious talents and disproportional access to the Zionized US media.
According to Jack Leavitt, Dershowitz¹s first wife found out that he was having an affair with another woman. His wife became enraged and brashly took many of Dershowitz¹s important legal papers from cases he was handling and tossed them into the street to be scattered by the winds to and fro.

In response, Alan Dershowitz allegedly pummeled and beat his wife up so badly that she had to be hospitalized. He then took custody of their two young sons, divorced and stripped his wife of financial support except for the bare minimum allowed. She then killed herself by jumping off the Brooklyn Bridge. Oddly the fall is 135 feet and it is very rarely fatal. Dershowitz, like others of his ilk, are basically soulless creatures. They don't believe in a God, have no remorse or conscious. At their center they believe in food, sex, money, power, and their superiority.
There was no place for nuance here. It was black and white, good versus evil, and any Jew who supported Israel was pure evil, and whatever fate Hitler and Goebbels deserved. "Dershowitz and Gibbels, just the same, the only difference is the name"
P,S.
According to a report in the Columbia Spectator, Finkelstein (at the foregoing event) characterized the Israeli-Palestinian conflict as a "contrived and fabricated controversy"; he declared that "regardless of intent, Israel is in effect guilty of state terrorism"; and he alleged that the "only difference between Israel terrorism and Hamas terrorism is that Israeli terrorism is three times as lethal."

http://www.realclearpolitics.com/articles/2009/01/a_question_for_my_friend_alan.html
http://palestinianpundit.blogspot.com/2009/01/how-nutty-professor-misstates.html
http://www.ucpress.edu/books/pages/10505.php
http://www.discoverthenetworks.org/individualProfile.asp?indid=2204
http://westernstandard.blogs.com/shotgun/2009/01/dershowitz-on-proportionality-in-war.html

Posted by: Finious | 2009-01-08 10:50:40 PM

Posted by: Finious | 2009-01-09 12:39:08 PM

MoS--Your rage should be directed at Hamas, not at Israel. Hamas has openly admitted to using elderly men, women and children as human shields in their aggressive war against Israel. If you don't believe me, just follow these links:
http://www.youtube.com/watch?v=RTu-AUE9ycs&NR=1 and
http://www.youtube.com/watch?v=kBYtij4Q7sE.

Hamas has fueled the culture of death deeply ingrained in Palestinian society, where suicide bombings are considered a supreme virtue among the young. They have openly proclaimed to love death more than life.

In addition, Hamas has officially and publicly proclaimed its aim to completely eradicate the Jewish state. It has sought to fulfill that aim with the current weaponry at its disposal--thousands of rocket missiles launched against Israeli civilians in southern Israel. Armed with a nuclear arsenal, it would have no qualms about destroying the entire Jewish state in a nanosecond.

Israel's assault in Gaza has been targeted against the Hamas leadership and militant infrastructure whose agenda is to kill Israeli civilians and ultimately destroy Israel. If Hamas encourages innocent civilians to stand in the line of fire, than it is THEY you should condemn, not Israel who's very survival depends on a complete dismantling of the Hamas military war machine.

Posted by: Amy | 2009-01-10 4:37:10 PM

Since when do university professors decide matters of international law, Bugjah? Oh, that's right...they don't. The good professor's opinion is just that--an opinion.

In any case, when do all these talking heads start holding the Palestinians to the same standards as they hold the Israelis? You cannot take something loathsome and base and turn it into something virtuous and just by prepending the words "poor man's" to it.

Posted by: Shane Matthews | 2009-01-10 8:36:32 PM

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Sunday, January 04, 2009

Dershowitz on proportionality in war

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