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.