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Proportionality
Rue D'Awakening
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HUMAN RIGHTS ADVOCATES EMBARRASS THEMSELVES.
Out of Proportion
by Joshua Brook
Only at TNR Online
Post date: 07.28.06
The war between Israel and Hezbollah has sparked widespread debate on the subject of proportionality. One might have hoped that the human rights community would take this opportunity to educate political leaders and the public on the international law of proportionality and how it applies to the current fighting. Indeed, some groups have done just that. But others have chosen to brazenly distort international law in their zeal to condemn Israel.
Most of the public discussion of proportionality focuses on two questions: first, whether the amount of force employed by Israel is proportionate to the amount of force used by Hezbollah; and, second, whether the number of Lebanese civilians killed by Israel is proportionate to the number of Israeli civilians killed by Hezbollah. These questions may or may not be legitimate ones, but they have nothing to do with the concept of proportionality as that term is used in international law. Under humanitarian law--that is, the body of international law that governs the conduct of armed conflict--proportionality has a specific meaning, the application of which is critical to determining whether a party to an armed conflict has committed war crimes.
Broadly speaking, the law of war is divided into jus ad bellum, which governs when a party may engage in armed conflict, and jus in bello (also known as humanitarian law), which governs the conduct of parties engaged in armed conflict. While there is little disagreement that Israel's use of armed force in Lebanon satisfies the requirements of jus ad bellum (Michael Walzer laid out the case last week in TNR), there has been a vigorous debate over whether the means chosen by Israel violate humanitarian law.
Jus in bello has two prongs: First, weapons and methods of warfare that cause unnecessary injury are prohibited. (The most famous example is poison gas.) Second, parties to armed conflict are required to distinguish between combatants and civilians, and, therefore, are prohibited from attacking purely civilian targets--that is, targets with no military function. However, the law recognizes that targets with military objectives may be situated among civilians or have both civilian and military uses. In such cases, the law prohibits indiscriminate attacks and requires the attacking party to employ methods of warfare that minimize the harm to civilians.
The proportionality principle requires parties to an armed conflict to balance the expected military advantage of an attack with the expected harm to civilians. The Fourth Geneva Convention prohibits attacks against military objectives where the damage to civilians would be "excessive" in relation to the concrete military advantage anticipated by the attack. Of course, predicting the military advantage and civilian damage that will result from a particular attack is inherently uncertain. Furthermore, the term "excessive" is not defined. Thus, the application of the principle of proportionality--i.e. determining whether a particular attack is disproportionate--is imprecise and involves a large degree of subjectivity. (If missiles are falling on your house or your friend's house, you are less likely to believe a counterstrike is disproportionate than if missiles are falling on a stranger's house or your enemy's house.)
Given the ambiguous state of the law, there is certainly plenty of room for legitimate debate as to whether, in the current conflict, Israel has abided by its legal obligations. But what is beyond debate is that, during the last few weeks, some human rights advocates have misinterpreted the principle of proportionality--twisting the law in order to make unfounded accusations against Israel.
To understand just how shoddy some of these human rights advocates have been in their legal reasoning, it helps to start with those human rights groups that are actually treating international law seriously. Take Human Rights Watch (HRW) first. On July 17, the organization published a comprehensive document titled "Questions and Answers on Hostilities Between Israel and Hezbollah." The Q&A accurately explains humanitarian law and fairly applies it to the current conflict. With regard to Hezbollah, HRW states that the taking of hostages is "strictly forbidden" and is a "war crime." It further states that the use of imprecise Katyusha rockets in civilian areas "violates the prohibition on indiscriminate attacks and would be a war crime." With regard to targets attacked by Israel, HRW states that civilian targets with military uses (airports, roads, bridges) may, in certain circumstances, be legally attacked, but that Israel is constrained by the principle of proportionality. With regard to whether the destruction of power stations is disproportionate, HRW reserves judgment but notes that "Israel faces a very high burden to justify these attacks." HRW has also urged Israel to cease the use of cluster munitions in populated areas, as such use "may violate the prohibition on indiscriminate attacks contained in international humanitarian law."
Similarly, the International Committee of the Red Cross (ICRC), which has a mandate from states party to the Geneva Conventions to carry out certain humanitarian activities in connection with those treaties, has issued statements urging all parties to uphold their obligations under international law. The ICRC has not accused Israel (or Hezbollah, for that matter) of committing war crimes, and has implicitly endorsed the potential legitimacy of the Israeli blockade of Lebanon, while reminding Israel of its obligation "to respect the principle of proportionality when establishing a blockade."
By contrast, Amnesty International has jettisoned international law entirely; instead, the group seems to be defining a war crime as any military action of which Amnesty International disapproves. Its website blithely condemns the Israeli targeting of bridges, roads, power stations, and the Beirut airport as "blatant violations of international law, which include war crimes." This accusation makes no reference to the principle of proportionality or, indeed, to any international legal instrument whatsoever.
The United Nations high commissioner for human rights, Louise Arbour, hasn't been much better. In a press release dated July 14, she accurately stated the law of proportionality:
[W]hile Israel has legitimate security concerns, international humanitarian law requires that parties to a conflict refrain from attacks directed against civilian objects. In particular, they have an obligation to exercise precaution and to respect the proportionality principle in all military operations so as to prevent unnecessary suffering among the civilian population.
Yet five days later she argued that "the bombardment of sites with alleged military significance, but resulting invariably in the killing of innocent civilians, is unjustifiable"--and then went on to suggest that Israel may be guilty of war crimes. This statement badly twists humanitarian law by completely ignoring the principle of proportionality.
On Wednesday, U.N. humanitarian chief Jan Egeland became the latest human rights advocate to butcher the concept of proportionality. "Proportionality is there in the law," he said. "The law has been made through generations of experience on the battlefield. If you kill more civilians than military personnel, one should not attack." In fact, this one-to-one principle has no basis in the law. There are plenty of scenarios under which the proportionality principle would permit such a strike--say, an attack that killed two Hezbollah operatives about to launch a missile, while also killing three civilians who were being used as human shields.
One may certainly empathize with the reluctance of organizations that are ideologically committed to protecting the dignity of human life to acknowledge the legal reality that it is sometimes permissible to kill innocent people. But ideological convictions do not relieve these groups of the obligation to tell the truth or to fairly apply international law. As Human Rights Watch has shown, commitment to human rights and intellectual integrity need not be mutually exclusive.
By proscribing certain actions while permitting others, humanitarian law seeks to tame warfare of its cruelest practices. The proportionality principle seeks the maximum protection for civilians while acknowledging the ugly reality that, in warfare, 100 percent protection is impossible. By obliterating the distinction between war and war crimes, groups like Amnesty International and the United Nations undermine the protection that humanitarian law does afford to civilians caught up in armed conflict. International law is not strengthened by distorting or ignoring its provisions while solemnly invoking its principles. Sadly, this seems to have been lost on some of the organizations and institutions charged with protecting human rights.
Joshua Brook is an attorney in New York. He was research assistant to Senator Daniel Patrick Moynihan for his book, Secrecy: The American Experience (Yale University Press, 1998).
Out of Proportion
by Joshua Brook
Only at TNR Online
Post date: 07.28.06
The war between Israel and Hezbollah has sparked widespread debate on the subject of proportionality. One might have hoped that the human rights community would take this opportunity to educate political leaders and the public on the international law of proportionality and how it applies to the current fighting. Indeed, some groups have done just that. But others have chosen to brazenly distort international law in their zeal to condemn Israel.
Most of the public discussion of proportionality focuses on two questions: first, whether the amount of force employed by Israel is proportionate to the amount of force used by Hezbollah; and, second, whether the number of Lebanese civilians killed by Israel is proportionate to the number of Israeli civilians killed by Hezbollah. These questions may or may not be legitimate ones, but they have nothing to do with the concept of proportionality as that term is used in international law. Under humanitarian law--that is, the body of international law that governs the conduct of armed conflict--proportionality has a specific meaning, the application of which is critical to determining whether a party to an armed conflict has committed war crimes.
Broadly speaking, the law of war is divided into jus ad bellum, which governs when a party may engage in armed conflict, and jus in bello (also known as humanitarian law), which governs the conduct of parties engaged in armed conflict. While there is little disagreement that Israel's use of armed force in Lebanon satisfies the requirements of jus ad bellum (Michael Walzer laid out the case last week in TNR), there has been a vigorous debate over whether the means chosen by Israel violate humanitarian law.
Jus in bello has two prongs: First, weapons and methods of warfare that cause unnecessary injury are prohibited. (The most famous example is poison gas.) Second, parties to armed conflict are required to distinguish between combatants and civilians, and, therefore, are prohibited from attacking purely civilian targets--that is, targets with no military function. However, the law recognizes that targets with military objectives may be situated among civilians or have both civilian and military uses. In such cases, the law prohibits indiscriminate attacks and requires the attacking party to employ methods of warfare that minimize the harm to civilians.
The proportionality principle requires parties to an armed conflict to balance the expected military advantage of an attack with the expected harm to civilians. The Fourth Geneva Convention prohibits attacks against military objectives where the damage to civilians would be "excessive" in relation to the concrete military advantage anticipated by the attack. Of course, predicting the military advantage and civilian damage that will result from a particular attack is inherently uncertain. Furthermore, the term "excessive" is not defined. Thus, the application of the principle of proportionality--i.e. determining whether a particular attack is disproportionate--is imprecise and involves a large degree of subjectivity. (If missiles are falling on your house or your friend's house, you are less likely to believe a counterstrike is disproportionate than if missiles are falling on a stranger's house or your enemy's house.)
Given the ambiguous state of the law, there is certainly plenty of room for legitimate debate as to whether, in the current conflict, Israel has abided by its legal obligations. But what is beyond debate is that, during the last few weeks, some human rights advocates have misinterpreted the principle of proportionality--twisting the law in order to make unfounded accusations against Israel.
To understand just how shoddy some of these human rights advocates have been in their legal reasoning, it helps to start with those human rights groups that are actually treating international law seriously. Take Human Rights Watch (HRW) first. On July 17, the organization published a comprehensive document titled "Questions and Answers on Hostilities Between Israel and Hezbollah." The Q&A accurately explains humanitarian law and fairly applies it to the current conflict. With regard to Hezbollah, HRW states that the taking of hostages is "strictly forbidden" and is a "war crime." It further states that the use of imprecise Katyusha rockets in civilian areas "violates the prohibition on indiscriminate attacks and would be a war crime." With regard to targets attacked by Israel, HRW states that civilian targets with military uses (airports, roads, bridges) may, in certain circumstances, be legally attacked, but that Israel is constrained by the principle of proportionality. With regard to whether the destruction of power stations is disproportionate, HRW reserves judgment but notes that "Israel faces a very high burden to justify these attacks." HRW has also urged Israel to cease the use of cluster munitions in populated areas, as such use "may violate the prohibition on indiscriminate attacks contained in international humanitarian law."
Similarly, the International Committee of the Red Cross (ICRC), which has a mandate from states party to the Geneva Conventions to carry out certain humanitarian activities in connection with those treaties, has issued statements urging all parties to uphold their obligations under international law. The ICRC has not accused Israel (or Hezbollah, for that matter) of committing war crimes, and has implicitly endorsed the potential legitimacy of the Israeli blockade of Lebanon, while reminding Israel of its obligation "to respect the principle of proportionality when establishing a blockade."
By contrast, Amnesty International has jettisoned international law entirely; instead, the group seems to be defining a war crime as any military action of which Amnesty International disapproves. Its website blithely condemns the Israeli targeting of bridges, roads, power stations, and the Beirut airport as "blatant violations of international law, which include war crimes." This accusation makes no reference to the principle of proportionality or, indeed, to any international legal instrument whatsoever.
The United Nations high commissioner for human rights, Louise Arbour, hasn't been much better. In a press release dated July 14, she accurately stated the law of proportionality:
[W]hile Israel has legitimate security concerns, international humanitarian law requires that parties to a conflict refrain from attacks directed against civilian objects. In particular, they have an obligation to exercise precaution and to respect the proportionality principle in all military operations so as to prevent unnecessary suffering among the civilian population.
Yet five days later she argued that "the bombardment of sites with alleged military significance, but resulting invariably in the killing of innocent civilians, is unjustifiable"--and then went on to suggest that Israel may be guilty of war crimes. This statement badly twists humanitarian law by completely ignoring the principle of proportionality.
On Wednesday, U.N. humanitarian chief Jan Egeland became the latest human rights advocate to butcher the concept of proportionality. "Proportionality is there in the law," he said. "The law has been made through generations of experience on the battlefield. If you kill more civilians than military personnel, one should not attack." In fact, this one-to-one principle has no basis in the law. There are plenty of scenarios under which the proportionality principle would permit such a strike--say, an attack that killed two Hezbollah operatives about to launch a missile, while also killing three civilians who were being used as human shields.
One may certainly empathize with the reluctance of organizations that are ideologically committed to protecting the dignity of human life to acknowledge the legal reality that it is sometimes permissible to kill innocent people. But ideological convictions do not relieve these groups of the obligation to tell the truth or to fairly apply international law. As Human Rights Watch has shown, commitment to human rights and intellectual integrity need not be mutually exclusive.
By proscribing certain actions while permitting others, humanitarian law seeks to tame warfare of its cruelest practices. The proportionality principle seeks the maximum protection for civilians while acknowledging the ugly reality that, in warfare, 100 percent protection is impossible. By obliterating the distinction between war and war crimes, groups like Amnesty International and the United Nations undermine the protection that humanitarian law does afford to civilians caught up in armed conflict. International law is not strengthened by distorting or ignoring its provisions while solemnly invoking its principles. Sadly, this seems to have been lost on some of the organizations and institutions charged with protecting human rights.
Joshua Brook is an attorney in New York. He was research assistant to Senator Daniel Patrick Moynihan for his book, Secrecy: The American Experience (Yale University Press, 1998).
Anti Zionism is not Anti Semitism
Most antizionists are antisemites
Most antizionists are antisemites
Post edited by Unknown User on
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"Call for the urgent dispatch of the International Humanitarian Fact-Finding Commission (IHFFC), established under Article 90 of Protocol I relating to the Protection of Victims of International Armed Conflicts (Protocol I ), to investigate incidents where serious violations of the Geneva Conventions and the Protocol are alleged to have taken place. Scrutiny by the IHFFC will be essential to establish the facts independently and authoritatively. It can also act as a deterrent against further abuses by the parties to the conflict."
No references to International Law, eh? Did the person that wrote the article read the requests of AI, before to condemnt it?
www.amnesty.org.uk
Israel is not attacking Hizbollah, they are destroying the entire country on the pretext that the infrastructure could be used by terrorists. (and most other people incidentally)
I really dont get it why they do this. Lebanon was moving in the right direction, anti-Syrian sentiments was growing, the country was getting rebuilt, and the political processes were seemingly coming along for it to be more democratic. Then why do Israel turn a country of moderately understanding people for the plight of Israel (apart from the radical Shi'ites of course) totoally against them selves? Do they think that when the Libanese look out over their ruined country, they're gonna think "Well, maybe we deserved this?"
Someone wants a war. I dont necessarily point the finger at Israel, although they never need much prodding to act. I really dont understand. And dont give me the old Israel/Palestine arguments about who's right and who's insane. I wonder why specifically now apecifically this happened, and I refuse to believe that a kidnapping or two REALLY is the reason. An excuse perhaps, but no reason. Anyone have any idea?
Peace
Dan
"Every judgment teeters on the brink of error. To claim absolute knowledge is to become monstrous. Knowledge is an unending adventure at the edge of uncertainty." - Frank Herbert, Dune, 1965
thats just totally false. if israel wanted to destroy the entire country the very first thing they would have done is take out their electricity. they have been targeting airports, roads, and bridges so that hezbollah can not be resupplied..and i believe they have also blockaded their ports.
Ehm, they are taking out the electricity... From what I've read from people down there. They at least bombed the power plant in Gaza pretty fast. And yes, they have been destroying every road in the country and laying waste to all infrastructure. Not to mention levelling entire blocks in Beirut and other cities.
They are punishing Lebanon here. If Hezbollah had been the Lebanese army, then perhaps the bombings could be justified. When they operate mostly in the south and operate outside the weak and compromised government's control, then bombing the rest of the country is an atrocity. That infrastructure can also be used by Hezbollah is a weak argument I think. Infrastructure is used by all, prominently by the regular people.
Peace
Dan
"Every judgment teeters on the brink of error. To claim absolute knowledge is to become monstrous. Knowledge is an unending adventure at the edge of uncertainty." - Frank Herbert, Dune, 1965
the lebanese gov't, along with the united nations, agreed to expel hezbollah from southern lebanon..they didn't do it and the terrorist group continued to wage war on israel. now israel is fighting back and taking care of what the UN failed to do. the more they bomb, the sooner true peace will come.
It's not that they didn't do it as much as it is they couldn't do it. And Israel could perhaps had been somewhat justified if they targetted only Hizbollah. They do not. They bomb all of Lebanon. All their infrastructure, and they level the entire southern part of Beirut more or less.
And Israel had 18 years of occupation to get Hizbollah, and couldn't do it. So it doesnt seem fair to punish a far weaker and more politically divided nation for not doing it for them.
"the more they bomb, the sooner true peace will come"
If they're going for genocide, then sure. There is peace when the other party is dead. If not, that is completely wrong. The more they bomb, the more enemies they create, and the longer the conflict can go on.
Peace
Dan
"Every judgment teeters on the brink of error. To claim absolute knowledge is to become monstrous. Knowledge is an unending adventure at the edge of uncertainty." - Frank Herbert, Dune, 1965
think about it.
they do this, so that the lebanese people will be terrorised into action. into demanding that their government denounce hezbollah and seek their removal from lebanon.
take a good look
this could be the day
hold my hand
lie beside me
i just need to say
Right. Israel levelling city blocks, making the inhabitants mad at... who again? Maybe they will also be mad at hizbollah, but me thinks the antipathy towards israel for bombing them comes first, really. That's what I think about it.
Peace
Dan
"Every judgment teeters on the brink of error. To claim absolute knowledge is to become monstrous. Knowledge is an unending adventure at the edge of uncertainty." - Frank Herbert, Dune, 1965
really...? that's why they are killing entire families....? interesting...
I'd have to say, if another country bombed my home and family...and purposely dismantled basic services...I would be more apt to vent my anger toward the people who killed my family....
while many continue to attempt to tie the bombing and killing of inocents to the kidnapping of the two soliders in order to rationalize it, the bombing is doing more to harm than good...
watching new from the middle east a few days ago, a man, who just lost his house and family in a bombing, said he did not support hezbollah....until now, and he stated he is going to join the fight against Israel, which was not something he supported before he lost is family and home...
Dan, Gaza and Lebanon are two entirely different places. To say that Israel hit the electricity in Gaza says nothing about their actions in Lebanon. I do not mean this insultingly, but it seems to me that if one doesn't know even the most basic geographical details pertaining to a conflict on the other side of the world then perhaps one should spend more time educating oneself before venturing to dispense criticism. Perhaps you simply made an error in haste, in which case I apologize, but this goes for many people posting criticisms of Israel on this site who seemingly know very little about the Israeli-Arab conflict, or who's knowledge is derived only from a very narrow left-leaning vantage point.
I feel sorry for him. He is surely throwing his life away. If he is so willing to fight now where was he when Hezbollah was quite obviously gearing up to provoke Israel into just these sort of actions? I'm not blaming him. Confronting Hezbollah would take immense courage for a regular Lebanese. But fighting Israel is an almost certain death sentence, and if someone is willing to die better to do it to save one's home and family than to destroy someone else's.
do you not see how this agression is breeding the fighters....?
This is war and there is no such thing as a fair fight. In a war, if someone tries to kill you... you kill them.
Hail, Hail!!!
i didn't say it made sense did i?
and i didn't say the desired objective would be achieved.
take a good look
this could be the day
hold my hand
lie beside me
i just need to say
http://hrw.org/english/docs/2006/07/17/lebano13748.htm
www.amnesty.org.uk
http://forums.pearljam.com/showthread.php?t=272825
Unless you really need it, and just leave your prisoners in the custody of Jordanian, Turkish or whoever's custody, so they can use similar devices...
Given the last year's debacle about CIA prisoner-shipping around Europe, I wouldn't be too righteous just yet.
And, where did that outburst come from anyway? Who were discussing torture devices or similar?
Peace
Dan
"Every judgment teeters on the brink of error. To claim absolute knowledge is to become monstrous. Knowledge is an unending adventure at the edge of uncertainty." - Frank Herbert, Dune, 1965