Proportionality in Warfare - Israel Has Clean Hands in Gaza While Biden Administration Stabbing It in The Back
Analysis & Opinion
Photo by Timon Studler on Upsplash
Key Points:
· Gang up by Biden, Defense Secretary Austin, Secretary of State Blinken and Intelligence Community.
· An overview of proportionality.
· What U.S. military learns at West Point.
· Rules of war and Israeli compliance.
· Stanford scholars lack spine and try hedging.
· N.Y. Times star offers superficial analysis. Perhaps fearful of being cancelled?
· Conclusion.
With the Israel-Hamas war now in its third month, the subject of proportionality in warfare is in the eyes of the beholder and, as a result, the conduct of the Biden administration and biased reporting by the news media would have you believe that Israel is flaunting international law.
However, there has been a paucity of details about what the rules of war and international humanitarian law (IHL)
actually say and how they are properly explained.
This article will address the subject in clear language along with related issues.
Two-faced Biden Administration
While the Biden administration has been very supportive of Israel when it comes to the supply of weaponry and a fair amount of diplomatic cover, it is reasonable to ask whether that is all just window dressing for Biden’s presidential campaign.
President Joseph Biden recently accused Israel of “indiscriminate bombing” and then his underlings tried to walk back that comment.
Defense Secretary Lloyd Austin, speaking to reporters in Tel Aviv on December 18, remarked that “democracies are stronger and more secure when we uphold the rule of law. Protecting Palestinian civilians in Gaza is both a moral duty and a strategic imperative. The United States will continue to urge the protection of civilians during the conflict.” After uttering these insulting remarks, he switched to sweettalking. “I’m not here to dictate timelines or terms. Our support to Israel’s right to defend itself is ironclad … Israel has the ‘bedrock right’ to defend itself.”
Not to be outdone, Secretary of State Antony Blinken, a long-time Biden political crony, stated during a December 20 press availability, “We continue to believe that Israel does not have to choose between removing the threat of Hamas and minimizing the toll on civilians in Gaza. It has an obligation to do both and it has a strategic interest to do both.”
Needless to say, the intelligence community chimed in with leaks to CNN about a classified report on Israeli use of so-called “dumb bombs.” An assessment compiled by the Office of the Director of National Intelligence was described to the television network “by three sources who have seen it,” CNN said. “The assessment says that about 40-45% of the 29,000 air-to-ground munitions Israel has used have been unguided. The rest have been precision-guided munitions,” CNN asserted.
Overview of Proportionality
Early in the conflict, critics of Israel brought forth complaints of Israeli conduct violating international law and specifically concerns about the meaning of proportionality.
On October 31, coinciding with an Israeli attack on the Gaza neighborhood of Jabaliya, Dr. Jill Goldenziel, a law of war expert on the faculty of the National Defense University and Marine Corps University weighed in on the topic of proportionality. In an article on the website of Forbes titled Proportionality Doesn't Mean What You Think It Means In Gaza, she provided a general understanding of the subject without taking a position on the legality of the Israeli air strike.
“Proportionality, one of the core principles of the law of war, in war does not mean balancing number of lives lost, or buildings leveled, or dollars in damage,” Goldenziel wrote. Her article, she said, was an attempt to shed light “on the calculations that military lawyers in states bound by the law of war – including Israel – make when striking targets in an extraordinarily complex combat environment.”
The law of war seeks to mitigate the risks to civilians, Goldenziel wrote. “In a densely populated place like Gaza, if Israel conducted every strike lawfully and with all the military precision that technology allows, many horrible deaths of innocent civilians would still occur,” she noted.
Commanders cannot be “indiscriminate” when selecting targets and they violate proportionality only when incidental injury and collateral damage is “excessive.” According to Goldenziel, excessive “is the crux of the commander’s balancing test and remains undefined in law.”
What does this all mean on the ground and in real time during intense urban warfare? “Proportionality is assessed based on the information a commander has at the time of the attack itself. The principle recognizes that a commander makes decisions with incomplete information, under time and operational pressure, and within the fog of war. It requires that the commander makes a reasonable decision—not one that is always correct.”
In summation, “an attack can be lawful even if a reasonable commander knows that civilians will suffer and die, and that city blocks will be destroyed – if they apply the appropriate balancing test,” Goldenziel stated, cautioning about the danger of social media manipulation.
Learning About Proportionality at Austin’s Alma Mater – West Point
Given the continuing spate of comments from various quarters of the Biden administration, it is of more than passing interest to see what the American military is being taught about proportionality.
In this vein, it is informative to take a good look at an article titled “Proportionality in International Humanitarian Law: A Principle and a Rule” which appears on the website of the Lieber Institute of the U.S. Military Academy (West Point).
The article delved into the specifics of proportionality and distinguishes between the different legal forms that proportionality takes, as both a principle and a rule of IHL. “Principles prescribe unspecific actions, whereas rules are formulated with greater precision,” wrote Anaïs Maroonian, who at the time of writing was a Ph.D. candidate in international humanitarian law at the Faculty of Law of the University of Geneva, and has lectured at West Point.
“More specifically, proportionality is a fundamental principle of IHL [and] governs the protection of civilians and civilian objects in the conduct of hostility,” the article states. “It has a limiting role that impacts targeting, including in the choice of weapons used, the precautionary measures required to be taken, and the anticipated incidental civilian harm, which must not be disproportionate to the expected military advantage.”
The author then turns to the rule of proportionality in the conduct of hostilities. “The three elements that lead to its characterization as a rule are its codification [adopting a norm into writing], its specific scope [a particular context], and its all-or-nothing operation,” she wrote.
The article noted the following: “The limited circumstances to which the rule of proportionality applies demonstrate its specific scope. The rule applies only when a military objective (legitimate target) is the object of an attack and incidental damage is foreseeable. Moreover, the rule applies only to an attack. Not every military operation in an armed conflict constitutes an attack.”
Maroonian’s final point is that the proportionality rule operates according to an “all-or-nothing” model, meaning that “once the conditions for its application are met, it must be complied with in full.” Rules, as compared to principles, “are either satisfied or not satisfied, with no room for discretion.”
International Humanitarian Law
The place to start to give context to the “rules” that apply to the IDF and a proper assessment of Israel’s conduct in Gaza is the ICRC (Red Cross) International Humanitarian Law Database. It is noteworthy that most articles on the topic never specifically report on what the rules state.
Article 51 addresses the rules applicable to the “protection of the civilian population.”
· The actions of the IDF do not target civilians and their “primary purpose is not to spread terror among the civilian population.”
· Civilians are not protected by these rules if “they take a direct part in hostilities.”
· The IDF does not conduct “indiscriminate attacks” but focuses on specific “military objectives and not civilians or civilian objects without distinction.”
· IDF attacks by bombardment do not “treat as a single objective a number of clearly separated and distinct military objectives.”
· Attacks by the IDF which may be expected to cause incidental civilian casualties are not “excessive in relation to the concrete and direct military advantage anticipated.”
· Hamas has violated the following rule with impunity: “The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favor or impede military operations.” Further, it is prohibited from directing the movement of civilians “in order to attempt to shield military objectives from attacks or to shield military operations.”
Article 52 is devoted to “general protection of civilian objects.”
· The IDF is in compliance with the rule stating “military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”
· The IDF does not “presume” that an object normally dedicated to civilian purposes is being used for an effective contribution to military action but arrives at that conclusion based on Hamas actions in battlefield conditions.
Article 57 deals with “precautions in attack” and constant care to spare civilians.
· The IDF does “everything feasible to verify that the objectives to be attacked are neither civilian not subject to special protection” but are military objectives not prohibited.
· The IDF takes “all feasible precautions in the choice of means and methods of attack” to avoid or minimize effects on civilians.
· The IDF does not conduct attacks “which would be excessive in relation to the concrete and direct military advantage anticipated.”
· The IDF has a longstanding history of giving civilians effective advance warning of attacks which may affect civilians “unless circumstances do not permit.”
· When it is possible to choose between several military objectives to obtain a similar military advantage, the IDF selects the one “expected to cause the least danger to civilians.”
· IDF military operations at sea or air are taken with “all reasonable precautions to avoid loses of civilian lives and damage to civilian objects.”
With these rules firmly in mind, let’s see how two of America’s “elite” scholars sized up the situation in Gaza.
Stanford Scholars Address the Issue and Hedge
On December 6, the Freeman Spogli Institute for International Studies at Stanford University and the Stanford Law School cosponsored a discussion related to the “legal framework of war and how the current conflict in Gaza fits into those precepts.” The discussion took place before a Stanford student audience.
The participants were Scott Sagan, professor of political science at Stanford, and Allen Weiner, a senior lecturer in law at Stanford Law School.
Sagan set the table for the discussion by outlining how the principles of just war theory are relevant in the current environment. The comprehensive foundations of the law of armed conflict (or international humanitarian law) originate from the post-World War II General Conventions. Neither Israel nor the U.S. is a party to the Additional Protocols of the 1977 Geneva Convention, he noted.
Both speakers focused on three principles in particular: distinction (only military targets are permissible in conflict); proportionality (militaries must weigh the advantage of attacking a particular target compared to the harm it will do to civilians); and precaution (military commanders must take precautions to limit civilian damage).
Expanding on these principles, Weiner emphasized the following: “The laws of war are not the same as human rights law. They recognize the existence of war. They recognize that armies are going to engage in killing and destruction. International humanitarian law is designed to minimize the worst suffering that war causes.”
As lawyers are prone to do, Weiner reverted to the legal complexity of applying these laws to the case of Israel and Hamas. “There is a lot of flexibility and discretion in the application of these laws,” he said. “The status of Gaza adds another layer of complication,” he noted, adding that a host of related issues “create incredibly complex issues regarding which bodies of law apply to Gaza.”
Weiner was asked to comment on the scarcity of reliable, clear facts about what is happening or is not happening in Gaza: “I am not able to ascertain with confidence what the facts are around many actions taking place on the ground. And that makes commenting as an outsider about the application of the laws of war in this situation extremely difficult and fraught. We have to be modest and we have to be humble about this.”
Both scholars acknowledged that Israel’s goal of eradicating Hamas as the governing entity in Gaza was a legitimate goal. And then their hedging was apparent.
Said Sagan: “We need to recognize that there can be acts which are lawful, but awful. The aims may be legitimate, but if in pursuing those aims you are creating more terrorists than you are killing, the aim you had may have been lawful in terms of its scope, but awful in terms of its consequences.”
Weiner chose to explain two esoteric principles – jus ad bellum proportionality (scale in responding to an attack) and jus in bello proportionality (requires military advantages of a particular action be weighed against civilian harms).
It was also noted that under jus ad bellum proportionality, there is a need to weigh whether the overall scope of a military campaign is proportional to the cause that triggered the response. Weiner cautioned that this test “is among the most notoriously fuzzy and ambiguous standards that is used.”
Referring specifically to Gaza, Weiner said: “I stipulate that destroying Hamas is a legitimate war aim for Israel under these circumstances. But if you can’t do that without causing excessive damage, I do wonder whether the goal of the state in resorting to war has become greater than the harm it is causing.”
Finally, both speakers reflected on the motivation of Israel for revenge and how the spirit of the formal structures of conduct in conflict are interpreted.
“I am concerned that in this conflict and others, the desire for vengeance can easily cloud judgments about what is right and what is wrong,” said Sagan. “In cases like the one we are witnessing now, we have to be very strict about what are facts and what are values. We have rights to our own values and our own interpretations. But we don’t have rights to our own facts.”
Weiner followed in the same vein. “Clouded by that sense of vengeance, I think after 9/11 the United States made a series of decisions that turned out to be very bad decisions from a national security standpoint and a humanitarian standpoint. And I do worry that the same might be true in Israel, particularly in respect to the scope of the war aims that it is setting.”
Turning from academia to the news media, a prominent New York Times reporter offered an analysis in which, like the aforementioned academics avoided taking a stance given recent history in the halls of America’s “elite” universities, he shied away from revealing his position on the issue. A sceptic might concluded the scribe feared being cancelled by his pro-Hamas colleagues at the old Gray Lady.
New York Times Superficial Front-Page Analysis
The New York Times online edition of December 13 featured a front-page “news analysis” headlined “Under Rules of War, ‘Proportionality’ in Gaza Is Not About Evening the Score” and carried the byline of Steven Erlanger, chief diplomatic correspondent in Europe based in Berlin.
While containing links that would be expected to quote relevant rules of war, instead go to articles offering opinions about those rules. Perhaps diplomatic correspondents can be a bit lazy about digging into the nitty-gritty of reporting.
Erlanger’s first attributed quote went to a lawyer at the prestigious Chatham House, a London think tank. “The law of war is cold,” said Emanuela-Chiara Gillard, adding that it does not “address our concerns and moral outrage over civilian deaths.” She previously worked for the Red Cross and the United Nations.
For balance, Erlanger went to Daniel Reisner, a former head of the IDF’s international law division, who noted that civilian deaths are a political question, not a legal one. “The numbers of dead on both sides are tragic, but if you limit the discussion to legality, the numbers are not the thing you measure. It’s why they died and in what circumstances they died, not how many of them died,” said Reisner.
Once again, Erlanger flipped to the other side by referring to the tally of deaths which “on either side of the conflict stagger.” Note that he refrained from saying war and then jumped on what was the controversial October 31 Israeli bombing in the Gaza neighborhood of Jabaliya. “But did Israel take [the Hamas tunnel network undermining the stability of building foundations] fully into account?” he asked.
Without quoting anonymous Israeli officials directly, Erlanger offered that they said targets that previously wouldn’t have been considered valuable enough to justify the risk to civilians in less serious skirmishes are now being hit. Such targets include private residences and public structures, the journalist noted without acknowledging that these places are inarguably used by Hamas to fire on or ambush Israeli soldiers.
Once again, Erlanger reverted to his balancing act by first noting that Israeli military officials “are frustrated” that critics do not see the war as combatting an existential threat to Israel. “This is different,” said Pnina Sharvit Baruch, a former head of the IDF’s international law department. “Hamas is open in aiming to destroy the state of Israel and any peaceful resolution of the conflict. Our existence is at stake, and we are fighting here for our lives, for our future, for the ability to stay here.”
At long last, in the 22nd paragraph of his article, Erlanger gets to the heart of the matter, noting that Israeli officials accuse Hamas of deliberately increasing civilian casualties and using civilian sites like hospitals to launch strikes and hide fighters. While this Israeli claim is factual and should be apparent to any on-the-ball journalist, he cannot acknowledge this. Instead, he goes to an Israeli author who wrote a 2021 book on proportionality. Israel does not aim to harm civilians, Amichai Cohen told Erlanger, but “there is no operational way for Israel to act on the ground without civilian collateral damage because of the tactics Hamas uses while embedding itself in the civilian population.”
Erlanger seemingly acknowledges that there is also a legal burden on Hamas to respect the rules of law by quoting Cordula Droege, the chief legal officer for the International Committee of the Red Cross. “Whatever your reason, if you choose to wage war, you still need to respect the exact same rules of international humanitarian law as a party to the conflict, and it makes no difference whether you act in self-defense or call yourself a liberation movement,” she said. “International humanitarian law protects the victims of the armed conflict, and they will be victims no matter what side they’re on.”
To demonstrate he is being evenhanded, Erlanger launches in a discussion about the need for Israel to practice “discrimination” in its choice of targets. Figuring out whether Israel abides by this legal principle “requires an investigation that cannot be carried out while fighting rages, and such judgments are especially difficult in urban guerrilla warfare, when fighters like Hamas live among the civilian population and take shelter there,” he asserted, leaving the matter open-ended.
At this point, Erlanger turned to Omar Shakir, the Israel and Palestine director for Human Rights Watch, an organization that has a long history of antagonism towards Israel. “Numbers definitely matter in providing an indication of overall trends, and a high proportion of women and children casualties is indicative,” he said. “When we see the use of so many high explosives in tightly packed residential areas, like refugee camps, it raises the question of proportionality given the foreseeable risk. Massive strikes like the ones on Jabaliya are emblematic of an Israeli practice of using very heavy bombs in densely populated areas, showing a disregard toward Palestinian lives. You can’t treat refugee camps as free-fire zones.”
Conclusion
While it is somewhat bewildering that the tide of public opinion in the democratic world is clearly flowing in favor of Hamas, a terrorist organization, a significant share of anti-Israel sentiment is clearly based on ignorance about the specifics of international law regarding proportionality.
Of course, it is possible that some Israeli actions have crossed the line to some degree but bear in mind that humans to make mistakes in the heat of combat.
What Hamas is doing in Gaza is premeditated and in flagrant disregard of the rules of international law which they are obligated to respect.
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Postscript
Erlanger’s article was published before the December 20 revelation by the IDF, with a supporting photo, of a Hamas truck loaded with long-range rockets that was discovered in the Jabaliya neighborhood.
For those who want a professional military analysis on the subject, here is an article by a highly respected retired British army colonel, Richard Kemp. It is fair to say that Kemp is an unabashed supporter of Israel who had been cancelled by the BBC for some 10 years but was recently invited back by the pro-Palestinian media giant to give a bit of balance to its coverage of the war. A must read!