Monday, July 21, 2014

The (ir)relevance of firepower

by Michael Dorf

Let me begin with a disclaimer. This is a post about one aspect of the current military confrontation between Hamas and Israel, not about the larger conflict over Palestine and Israel. I will just say, with considerable dismay, that over the last two decades I have come to think that an observation once made by Abba Eban about the Palestinians has now become a fair characterization of the Israelis (especially under Likud-led governments): "They never miss an opportunity to miss an opportunity." In any event, in a perhaps-futile effort to focus on just one issue, I won't respond to questions, comments, or accusations regarding my views about the larger conflict.

Here I want to inquire into the relevance--or irrelevance--of an obvious fact about the current conflict: Israel has much more sophisticated weaponry and troops, and has been using them to much greater effect, as reflected in the very different death tolls. Before Israel crossed the border into Gaza, when the current round of conflict was essentially an exchange of rocket fire from Gaza and bombing raids by Israel, comparable numbers of rockets and bombs were sent in each direction; but despite the fact that Hamas fires rockets indiscriminately and Israel takes measures to avoid civilian casualties, the Israeli bombs killed hundreds of people, whereas the Hamas rockets kill very few (two people, as of yesterday).

Rocket fire and bombing raise important questions under the international law of war. Targeting civilians is illegal, but so is incidentally killing (or injuring) civilians when attacking military targets if the harm to civilians is disproportionate to the military objective. Hamas thus violates the law of war by targeting civilians and by embedding itself within the civilian population. Israel appears to violate the law of war by bombing military targets with the incidental effect of killing more civilians (including children) than combatants. I say "appears" because the law of war does not fix an exact ratio of permissible incidental civilian deaths, nor is there consensus on whether a force is permitted to incidentally kill civilians in greater proportions (and if so, how much greater) where the enemy bears substantial responsibility for the attacker's difficulty in distinguishing combatants from civilians.

Note that in the previous paragraph I am using the notion of proportionality in its technical sense within the jus in bello branch of the law of war: As a limit on foreseeable but unintended harm to civilians. There are two other senses in which proportionality may be relevant.

First, proportionality plays a role in jus ad bellum--the legal principles governing when the use of force is justified in the first place. In the current conflict, some people have said that because of the combination of the Hamas rockets' inaccuracy and the effectiveness of Israel's "Iron Dome" missile defense, the rocket fire from Hamas did not justify Israel's forceful military response at all, but there seems to be broader recognition that however one apportions responsibility for various aspects of the conflict, Israel is entitled to use force, so that if Israel were only (or chiefly) hitting Hamas fighters, there would be no legal question of proportionality--either for jus ad bellum or jus in bello purposes.

But that brings us to the second alternative sense in which I have seen concerns about proportionality--namely, concerns about proportionality in the more colloquial sense of "sporting" or a "fair fight." Although this is not a legal concern, it might nonetheless be a moral concern. The precise question is this: Is there anything distinctively problematic about using a much more powerful military against a much weaker military, assuming that the much more powerful side otherwise complies with both the jus ad bellum and jus in bello branches of the law of war?

I had a view on this question as a seven-year old. My father tape-recorded my answers to various questions, one of which was "what are some of the things you would do if you were God?".  My answer was that "if there were two armies fighting and one of them had 20 men and the other had a billion, I would give a little help to the army with 20."

I suspect a great many people feel the same way. Absent some attachment to one team or another, they root for the underdog in a sporting event, and so they may do the same with respect to warfare. But apart from the obvious point that military conflict is not sports, there are additional considerations that may be relevant in thinking about whom to support in a military conflict, whether you are an ordinary citizen, the leader of a third-party government, or God. The side with the more powerful military might not be the aggressor and might, in other respects, be the underdog. (Note that both Israelis and Palestinians tend to see themselves as underdogs and to see the other side as aggressors, each with some justification.)

But suppose that everything else were equal. Would a sensible policy or a just God try to help the military underdog (assuming, for whatever reason, that a just God can't just end the conflict)? I think the answer is no. Wars between relatively evenly matched militaries tend to be the bloodiest, most protracted wars. Think of World War I or the Iran-Iraq War. As John Witt observes in Lincoln's Code, Francis Lieber, the father of the modern law of war, believed that warfare between combatants should be brutal and decisive, because that would keep wars short and thus ulitmately more humane. My colleague Jens Ohlin also makes the point in an important recent paper on the (non)duty to capture.

Again, there are various legitimate grounds on which to criticize Israel for its conduct in Gaza (and elsewhere). But having and using a superior military is not one of them.


Ben Alpers said...

Two responses that I hope will be narrowly on topic as you have asked, corresponding to the two points you make, the first legal, the second moral.

The first is a question: In a strictly legal sense, does the law of war apply at all to a non-state actor like Hamas?

The second is a comment: the moral significance of relative Israeli power is the fact that, entirely predictably, dramatically more (innocent) Palestinians have been killed than (innocent) Israelis. The rest is commentary.

Ori Herstein said...

Japan suffered 2-3 million deaths in WWII. The US suffered approx. 400 thousand. Assuming these numbers are accurate and were predictable, according to Ben Alpers the 'rest is commentary.' I.e., the US going to war with Japan after Pearl Harbor was morally wrong.

(Needless to say that I do not agree with Alpers. Morality is exactly found in Alpers' so called 'commentary')

Michael C. Dorf said...

1) Currently the law of war does not apply to non-state actors, although there are efforts to make it applicable:
My analysis gives Hamas (and other nonstate actors/liberation movements) the benefit of the doubt by assuming that their use of force COULD be legal if they complied with the law of war. Under the existing sovereign-based paradigm, nonstate actors using force are deemed mere criminals even if they do comply with the law of war.

2) I think the comment may highlight the difficulty of adhering to the distinction between jus ad bello and jus in bellum, which is relevant not just for the law of war, but the underlying moral theory (as in Walzer). The conventional way of thinking about these things is to ask whether the use of force is justified, and if so, is it proportionate. There is no place for asking about total numbers, much less comparative total numbers, apart from compliance with the law of war.

David Ricardo said...

The bombardment of Israel by rockets is the secondary issue. The primary issue is the tunnels that Hamas was constructing under the Gaza border into Israel for the purpose of sending terrorists into Israel to massacre civilians. If Israel had not acted hundreds, maybe thousands of Israeli civilians would have been injured or killed in Hamas attacks through the tunnels. The rockets gave Israel a rationale for their attacks.

So with respect to Mr. Dorf’s statement “Israel appears to violate the law of war by bombing military targets with the incidental effect of killing more civilians (including children) than combatants” we have the issue that both these tunnels and the weapons that Hamas uses were deeply imbedded in civilian structures and the reason for the high civilian casualties among the Gazans is not that Israel was targeting them but that they were in close proximity, by design, to military targets.

Failure of Israel to stop both the rocket attacks and the tunnels would have resulted in massive Israeli deaths. No government could or should allow such a thing. Hamas, much more than Israel is to blame for the casualties of civilians and children in this conflict. All of us grieve at the death and injuries to Gazan children, and all of us wonder at the callous inhumanity of Hamas to put them in harms way.

Joe said...

It was noted elsewhere that the IRA attacked British civilians, but bombing Irish areas (civilians aided and abetted the terrorists -- I take that word is okay -- there) with the resulting deaths akin to here was not seen as feasible.

The underdog thing is duly noted. It is hard not to root for the South at times, e.g., while reading about the Civil War (or watching C-SPAN specials on them). Then, you remember what they were fighting for.

DHMC said...

I appreciate your examining the narrow issues in the present Hamas-Israel conflict. (And the civility of the comments, so far.) A couple of questions/comments:

1) Could Hamas not effectively be considered a state actor as Gaza meets most of the definitions of a state, and they are in all but name an independent state? In the law of war, non-state actors are generally rebel groups in a territory, or extra-territorial groups, are they not?

2) While I understand you do not wish to examine the wider Palestinian-Israeli conflict, it is hard to discuss Hamas's military response and whether it is proportional without discussing the years-long blockade of Gaza, and the almost total control Israel has over the lives of those in Gaza. Please note I am not justifying the actions of either side, but I think this part of the larger context is an important aspect of your question.

Michael C. Dorf said...


1) My view is that wherever possible, non-state actors should be treated as state actors--both in terms of responsibility for following the laws of war and in terms of receiving protection by them. There are protocols that go in this direction, but they are not as widely accepted as the earlier Geneva Conventions.

2) I agree that any comprehensive assessment of the conflict would need to be much wider than what I have described here. For what it's worth, there does seem to be a vicious cycle in which Israel justifies the blockade (and the West Bank wall/barrier) by security concerns, which in turn increases the misery of Palestinians, which in turn leads to increased Palestinian support for violence, which leads to Israeli security fears, and so on. To be sure, some of the problem is independent of this spiraling dynamic: E.g., Israeli settlements in the West Bank cannot possibly be justified as serving security interests; in addition to the harm they do to Palestinians and the long-term prospects of Palestinian Statehood, they undermine Israel's security. But the cyclical dynamic of violence and blockade in Gaza is (mostly) independent of the settlement phenomenon, since Israel dismantled its Gaza settlements in 2005.

ghkozen said...

I think there is a questionable assumption about the merits and bloodiness of various wars. You analogize to WWI and to Iran-Iraq. Both are situations where two states are battling, presumably compared to something like the First Gulf War. The equally matched states fight bloody and protracted campaigns, whereas the unmatched states have far less bloodshed, after which one side wins, one side loses, and normality is somewhat restored.

That is not what I see in the bellicosity between Israel and Gaza. Even if Israel wins an overwhelming victory... what? They will kill hundreds of Gazan civilians, then use the victory to continue to imprison millions of Gazans within their impounded territory. People will starve, there will not be enough cement to rebuild as long as the blockade is enforced. Israel will invade again, as it has twice before in the last ten years. More Gazans will die.

The difference is that here, unlike in interstate wars, the application of overwhelming force by Israel cannot hope to lead to a resolution. In that way, it is far more like your examples of WWI and Iran-Iraq.

Michael C. Dorf said...

ghkozen: As I often do, I am using a particular news event to explore a broader question or questions. (See, e.g., my extended discussion of the Hobby Lobby case.) The idea that, other things being equal, individuals, states, or the international community should support the militarily weaker side is superficially appealing in general, but in general it succumbs to the Lieberian logic. There may well be counter-examples, and Israel/Hamas may be one such counter-example. Nothing I said assumed or was meant to imply that there is a possible military resolution to this political conflict (notwithstanding Clausewitz on politics).

Shak Olreal said...

I say "appears" because the law of war does not fix an exact ratio of permissible incidental civilian deaths, nor is there consensus on whether a force is permitted to incidentally kill civilians in greater proportions (and if so, how much greater) where the enemy bears substantial responsibility for the attacker's difficulty in distinguishing combatants from civilians.Cheap Elo Boost
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