Friday, January 16, 2009

Gaza and Proportionality

Israel is not a party to Protocol I to the 1949 Geneva Conventions, governing the protection of victims of international armed conflicts. Nor, for that matter, is Hamas. The PLO, even before it was given formal authority as the Palestinian authority, committed to abide by Protocol I and the other Geneva Conventions, although for many years thereafter plainly violated these provisions by deliberately attacking civilians. As the successor government to Fatah in Gaza, it could be argued that Hamas is bound by the previous accession of the PLO, but since Hamas has rejected other Fatah agreements, it is not clear what the point of such an argument would be.

Although Protocol I is not treaty law binding on either Hamas or Israel, the principles it expresses are nonetheless sufficiently widely accepted that they could be considered norms of customary international law or jus cogens, that is, binding quite apart from any treaty obligation. And even if not, they are, in their content, admirable. Thus, in the court of public opinion, it is worth thinking about whether Hamas and Israel have abided by them.

For Hamas the answer is easy: Not even remotely. Deliberately targeting civilians, as Hamas missiles do---to the extent that they can be said to "target" anyone, given their unpredictability---violates humanitarian law. (Article 51(4) forbids "indiscriminate attacks.") So too does the Hamas practice of taking refuge behind civilian human shields. Israel does not target civilians, although Israel has killed a great many civilians as a "collateral" consequence of attacks on Hamas fighters in the current conflict. Although Protocol I does not forbid military operations that result in such collateral consequences, it obligates state parties to minimize such casualties. In particular, it contains a proportionality norm that forbids attacks "which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated."

Here I want to make some observations about the proportionality norm:

1) Talking heads and others commonly talk as though humanitarian law requires that the overall military operation must be proportionate to the provocation. However, that is not true of international humanitarian law. If the use of force is justified in national self-defense (or authorized by the UN Security Council), then a nation may wage war against the aggressor nation. Here, Israel contends that Gaza (treated for these purposes as a nation governed by Hamas) has attacked Israel via rocket fire. That is a casus belli, and once war is justified, Israel has the legal right to attack the Hamas military, including its infrastructure.

2) Now, international law does appear to contain a different proportionality norm of roughly the sort that the talking heads have in mind: As the International Court of Justice said in adjudicating Nicaragua's complaint against the U.S. during the 1980s (which the U.S., while not showing up to defend itself, nonetheless tried to justify as collective defense in response to Nicaraguan incursions into Costa Rica, El Salvador and Honduras), armed self-defense or collective defense must be both necessary and proportionate. The ICJ judgment in that case did not reach the question of whether sponsoring the contras and mining Nicaragua's ports was disproportionate because it found no valid claim of collective defense, as no country had asked for American help in defending against Nicaragua. But the language there and in international law treatises does strongly indicate that self-defense justifying war does not entail unlimited war aims. As my colleague Jens Ohlin (co-author of Defending Humanity) explains (in an email to me): "the UK was justified in expelling Argentina from the Falklands, but invading the mainland and toppling its government would have been disproportionate."

3) Viewed in this light, Israel's principal war aim appears to be legitimate: to destroy or degrade the ability of Hamas to launch rockets into Israel. The matter is not entirely free from doubt, however, because Israel has not been entirely clear on its war aims. But the point I want to emphasize here is that the question of whether Israel's war aims are disproportionate to the casus belli is very different from the question of whether the collateral civilian casualties are disproportionate to the achievement of Israel's military objectives in attacking Hamas fighters. Or to put the point somewhat more tendentiously: There is no legal requirement that Israel's use of force be proportionate to Hamas's use of force.

4) If we think about these issues from the standpoint of morality, rather than international law per se, we might think that whether civilian casualties are proportionate depends ultimately on the value of the military objective. I have real doubts about the likely impact of the current operations by Israel. It seems to me that they will further radicalize Palestinians---not just in Gaza but also on the West Bank---and thus render less likely any lasting peace either with Fatah or with the less ideologically fanatical members of Hamas. And if the whole operation will, in the long run, decrease rather than enhance Israel's security, then it is hard to see how any civilian casualties are proportionate to the operation. However, that is not the legally relevant measure of proportionality. The legal norm of proportionality under international humanitarian law focuses more narrowly on the relation between civilian casualties and immediate military objectives. Killing Hamas fighters and commanders is a legitimate objective in a war that appears to have legitimate (if not necessarily wise) aims overall, and so the real open question is whether the suffering incidentally inflicted on the civilian population is proportionate to the achievement of that objective.

5) I honestly don't know the answer to that question. It is notoriously difficult to determine what counts as proportionate under humanitarian law, and some academics and judges think this renders the proportionality norm useless. To the extent that we can identify factors, the ratio of military to civilian casualties is certainly a relevant consideration, but other factors also come into play, including whether the enemy bears responsibility for mixing its forces among civilians. To be clear, the fact that Hamas uses human shields does not absolve Israel of the responsibility to minimize civilian casualties, but it may bear on what counts as a sufficient effort at minimization, and thus on what counts as proportionality.

Mostly unrelatedly, I have heard some defenders of the current Israeli operation point to the fact that Hamas was elected, and receives support from a substantial portion of the civilian population of Gaza. Thus, it is said, civilians in Gaza are reaping what they sowed. Whether this fact is morally relevant, it is certainly legally irrelevant. If the rule were otherwise, civilians in democracies could not count on the protections of humanitarian law. A civilian remains a civilian even if he is loyal to and supports his government, however odious that government's policies may be. Of course, a civilian who takes up arms but not a uniform ceases to be a civilian, and in so doing violates the law of war, but that is a different point entirely.

Posted by Mike Dorf


Paul Scott said...

And all this time I thought you were positivist. ;)

Is your treatment of Gaza as a nation the best approach? It is, after all, part of Israel and its government is more akin to the governments of our states (with arguably even less autonomy) than it is to a separate nation, is it not? Does humanitarian law recognize such a distinction? That is, would it treat the US military launching missiles into Texas differently than into Quebec assuming the objective in doing so were somehow identical to the situation in Gaza?

Michael C. Dorf said...

Gaza is not part of Israel, nor does Israel consider it such. However, if one considers Gaza part of Israel then the same basic principles apply. The second Protocol to the Geneva Conventions--Protection of Victims of Non-International Armed Conflicts--governs internal conflicts, although here too, Israel is not a signatory. (Neither is the U.S. for that matter.) It also manifests concern for civilians, and thus, to the same extent that the first protocol is binding as customary international law or jus cogens, so too would be the second protocol.

But perhaps Paul's question goes to whether the use of force at all is authorized. I know of no principle in international law that would deny a sovereign state the power to use force to suppress a violent insurrection by persons in that state.

So, bottom line: I don't think the fact that Gaza is not formally a nation changes the analysis.

sobi said...

Hamas then, would be morally prohibited from any act of war unless the weapons they used were sophisticated enough to reach military targets and avoid the deliberate or accidental collateral damage of civilians?

Isn't there just a bit of a double-bind in that? Just a thought.

Michael C. Dorf said...

In response to sobi's question: Military and para-military organizations that lack the ability to target military personnel and equipment cannot plead poverty as an excuse for targeting civilians. The point of international humanitarian law, after all, is not to make war into a "fair fight," whether it is a fight between states or a fight between states and non-state actors. Its main point is to minimize harm to civilians.

But perhaps you were suggesting that when Hamas lobs missiles into Israel, it is trying, to the best of its limited ability, to hit military targets. I think that Protocol I, if applied, would still treat that as an impermissible "indiscriminate" attack, but it's a hypothetical question because there is no evidence that Hamas prefers to hit military targets.

Paul Scott said...

I should have been more precise. Gaza is not formally part of Israel, but Israel controls it. I think in any real sense it controls it completely. To the extent Hamas (and formerly the PLO) exercise jurisdiction, they do so on Israel's behalf. By the Oslo accords the PLO (and now Hamas) act more like an administrator than a sovereign. Even where they hold authority, they hold it only in a limited fashion. Israel, for example, holds control over the entirety of the air space and sea. They also, by the accord, hold control over settlement areas and "security zones" (which, admittedly no longer exist, so they hold "theoretical" control). To my knowledge (which is admittedly weak), this control is not disputed by international authorities. The accord really only gave the Palestinian Authority administrative control over the Palestinian population.

If I have this wrong, please correct it.

If I don't, why would we treat something like Gaza more like a nation than like an extension of Israel?

sobi said...

If the point of international humanitarian law is to minimize harm to civilians, isn't that done on a moral premise? Isn't the judgment against Hamas a moral condemnation for targeting civilians?

So, if the objective of the law is a moral one, isn't a fair fight a moral issue as well? Not so much that the law should aim to equalize forces, but that there is a problem with handicapping the underfunded who are already handicapped. I don't think the two concepts can be fairly separated and one kept morally sterile from contamination by the other.

I didn't mean to provide a defense for Hamas, I meant to say that the law feels skewed in favor of Israel in this instance because Israel is better funded. The sum of which makes the richer military the more moral one because they can afford to be.

Anonymous said...

I'm amazed and shocked that Israel is said to have a legitimate a cassus belli, when in fact Hamas does. As soon as Hamas was elected, before it took any action as a government (as opposed to its party platform plank calling for the destruction of Israel), Israel, with our blessing, instituted a blockade, that is, an act of war.

Michael C. Dorf said...

3 thoughts in response to paul, sobi and bob, respectively:

1) Paul: Israel has in the relatively recent past occupied Gaza, which lies outside of Israel's pre-1967 borders, and continues to exercise substantial control over ingress to and egress from Gaza. Occupying forces (regardless of whether they are legal occupiers) have various legal obligations to the civilian population, typically contained in the very same Geneva Conventions (and their protocols).

2) Sobi: I see your point that in a clash between a strong military and a weak military, the weaker force is more likely to adopt "unconventional" tactics, such as targeting civilians. Perhaps this does mean that avoiding the targeting of civilians is something of a luxury. In any event, as my main post points out, there is a difference between humanitarian law in this area and the law governing when force is legal. As to the latter, it's only in national self-defense, collective self-defense, or when authorized by the Security Council--although arguably there is also an emerging norm authorizing aggressive war to stop atrocities. In light of all this, a weaker power would be well-advised not to give a stronger power legal cause to make war on it.

3) Which brings us to Bob's observation that Israel's blockade was premature because it occurred "before Hamas took any action as a government." The key modifier here is "as a government." Hamas--as a terrorist organization--had of course taken numerous actions targeting and killing Israeli civilians, before it became a government. I don't have an opinion as to either the legality or the wisdom of the initial Israeli reaction to Hamas taking power in Gaza (which Hamas accomplished not merely by winning a plurality in parliamentary elections but by killing Fatah officers in Gaza). However, Hamas gave no indication that once in power it would alter its conduct towards Israel. In fact, it publicly declared that it would not. Thus, it is at best misleading to suggest that the Israeli response to the Hamas takeover of Gaza was in response to no action.

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