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SECURING AMERICA, STRENGTHENING ISRAEL

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Proportionality: Israel’s Response to Hamas Rocket Attacks Under International Law

By Shoshana Bryen, Senior Director for Security Policy

Much has been made of Israel's so-called "disproportionate" response to Hamas rocket fire against Israeli civilians. Wags have tried to create a "proportionate" response. The esteemed author and commentator Victor Davis Hanson, with tongue firmly in cheek, suggested, in part, that Israel "allow Hamas another 1,000 free rocket launches to see if they can catch up with the body count; and have Israeli soldiers congregate in border barracks so that Hamas' random rockets have a better chance of killing military personnel, to ensure it can claim at least a few military targets." Others have seriously suggested random Israeli rockets on Gaza neighborhoods to retaliate for attacks on Sderot and Ashkelon – it isn't clear what they would do to retaliate for the bomb that hit a Be'er Sheva school yesterday.

But proportionality as a doctrine in international law does NOT say that firepower returned has to be equal to firepower taken, and does NOT require that casualties be equal on both sides. We turned to experts for a better understanding of the principle of proportionality and its use in the current situation. None of the following were writing in relation to Israel, but rather the First Gulf War, the Iraq War, U.S. participation in the El Salvador civil war and other situations.

Prof. Horst Fischer, Academic Director of the Institute for International Law of Peace and Armed Conflict at the Ruhr-Universität Bochum in Germany, and Adjunct Professor at Columbia University, writes in The Crimes of War Project (www.crimesofwar.org):

The principle of proportionality is embedded in almost every national legal system and underlies the international legal order. Its function in domestic law is to relate means to ends. In armed conflict, the principle is used to judge first, the lawfulness in jus ad bellum of the strategic goals in the use of force for self-defense, and second, the lawfulness in jus in bello of any armed attack that causes civilian casualties…In the conduct of war, when a party commits a lawful attack against a military objective, the principle of proportionality also comes into play whenever there is collateral damage, that is, civilian casualties or damage to a nonmilitary objective…attacks are prohibited if they cause incidental loss of civilian life, injury to civilians, or damage to civilian objects that is excessive in relation to the anticipated concrete and direct military advantage of the attack. This creates a permanent obligation for military commanders to consider the results of the attack compared to the advantage anticipated.

The Council on Foreign Relations notes:

The doctrine originated with the 1907 Hague Conventions, which govern the laws of war, and was later codified in Article 49 of the International Law Commission's 1980 Draft Articles on State Responsibility (PDF). The doctrine is also referred to indirectly in the 1977 Additional Protocols of the Geneva Conventions. Regardless of whether states are party to the treaties above, experts say the principle is part of what is known as customary international law. According to the doctrine, a state is legally allowed to unilaterally defend itself and right a wrong provided the response is proportional to the injury suffered. The response must also be immediate and necessary, refrain from targeting civilians, and require only enough force to reinstate the status quo ante.

What constitutes status quo ante for Israel may be debatable – but surely a return to the period before 750,000 Israeli citizens were terrorized by random rocket fire should be an acceptable definition.

Luis Moreno-Ocampo, Chief Prosecutor at the International Criminal Court, investigated allegations of war crimes during 2003 invasion of Iraq and published an open letter containing his findings. Included was this section on proportionality:

Under international humanitarian law and the Rome Statute, the death of civilians during an armed conflict, no matter how grave and regrettable, does not in itself constitute a war crime. International humanitarian law and the Rome Statute permit belligerents to carry out proportionate attacks against military objectives,[1] even when it is known that some civilian deaths or injuries will occur.

The footnote is important:

1. Article 52 of Additional Protocol I to the Geneva Conventions provides a widely-accepted definition of military objective: "In so far as objects are concerned, 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" (Source: Luis Moreno-Ocampo References page 5, footnote 11).

Nothing that Hamas (or Hezbollah) targeted or continues to target falls within the definition above of "military objective." Continuing with Moreno-Ocampo's letter:

A crime occurs if there is an intentional attack directed against civilians (principle of distinction) (Article 8(2)(b)(i)) or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality) (Article 8(2)(b)(iv). Article 8(2)(b)(iv) criminalizes: Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.

Agreeing with Fischer, Moreno-Ocampo finds a requirement that military forces and their civilian commanders-in-chief assess the military requirements of the pending attack and the likelihood of civilian casualties and/or collateral damage.

Article 8(2)(b)(iv) draws on the principles in Article 51(5)(b) of the 1977 Additional Protocol I to the 1949 Geneva Conventions, but restricts the criminal prohibition to cases that are "clearly" excessive. The application of Article 8(2)(b)(iv) requires, inter alia, an assessment of:
(a) the anticipated civilian damage or injury;
(b) the anticipated military advantage;
(c) and whether (a) was "clearly excessive" in relation to (b).

Finally, Dr. Francoise Hampton, University of Essex (UK) writes about the concept of "military necessity." Excerpts:

Military necessity is a legal concept used in international humanitarian law (IHL) as part of the legal justification for attacks on legitimate military targets that may have adverse, even terrible, consequences for civilians and civilian objects. It means that military forces in planning military actions are permitted to take into account the practical requirements of a military situation at any given moment and the imperatives of winning. The concept of military necessity acknowledges that even under the laws of war, winning the war or battle is a legitimate consideration, though it must be put alongside other considerations of IHL.

What constitutes a military objective will change during the course of a conflict. As some military objectives are destroyed, the enemy will use other installations for the same purpose, thereby making them military objectives and their attack justifiable under military necessity. There is a similarly variable effect on the determination of proportionality. The greater the military advantage anticipated, the larger the amount of collateral damage - often civilian casualties - which will be "justified" or "necessary." This flexibility also appears with regard to the prohibition of the use of weapons that cause "superfluous injury or unnecessary suffering." The greater the necessity, the more suffering appears to be justified. Thus, even in the Advisory Opinion on the Legality of the Use of Nuclear Weapons the majority of judges in the International Court of Justice in The Hague left open the possibility that a State might be able to justify its use of nuclear weapons where the very survival of the State was under serious threat.

In the course of hostilities, these rules impose significant restraints on the conduct of law-abiding forces, but those forces may be able lawfully to invoke military necessity where their very survival or the requirements of winning the conflict are at stake.

What becomes clear – absent the propaganda element – is that Israel has the right and indeed the obligation to defend its people, the right to "win" the war of self-defense that it is fighting, and has taken account of the requirements of international law regarding "proportionality" and "military necessity."

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