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July 18, 2006

Israel and the Doctrine of Proportionality

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The blogfather has this discussion up on NRO this morning:

Israel's Fragile Existence [Jonah Goldberg]

I get this sort of thing a lot every time Israel comes into the news:

Jonah,
A common statement of the Israel Hawks is that Israel's existence is fragile, like you said earlier today. However, they have air superiority, the best weapons, the most disciplined troops and the bomb. Yet, you make it sound like they'll collapse the second they don't respond in an overheated way. They beat 3 bigger Arab countries once and they still have a significant military and economic advantage over everyone else. So why the lie about their fragile existence?

Me: First, I really can't stand the way people assume that if someone has a different perspective they must be lying. This is particularly common on the left these days. Why not just say I'm "wrong," or "misguided," etc?

Anyway, I can't speak for other people but here's how I've always thought about the question. Whenever it's necessary to use force to stay alive your position is precarious. And if you have to use it constantly just to live, that's a sign your "existence" is under serious threat (the humans in the "Living Dead" movies are always well-armed, none of them feel their existence isn't fragile).

In other words, the point is that Israel must maintain a very high level of military preparedness and vigilance merely in order to survive. If they didn't have that capability they'd be gone in a week. If they let down their guard for a moment, we've seen what happens. That's a pretty thin line if you ask me. Most countries don't have the ability to fight off all of their neighbors simultaneously but that's because they don't feel the need. According to the Israel-is-strong view, Belgium's existence is more fragile than Israel's because Israel is better armed. Who in the world thinks that's the case? I can assure you that most Israelis would rather have the "fragility" of Belgium's plight than the "stability" of theirs.

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The Council on Foreign Relations has a tidy little primer up on the subject of the Doctrine of Proportionality.

Introduction

Israel's offensive into Lebanon and the Gaza Strip, in response to the abductions of two of its soldiers by Hezbollah and one by Hamas militants, raises a number of difficult legal questions. Among them: Did the Israeli response violate the principle of proportionality? UN Secretary General Kofi Annan has accused Israel of "disproportionate use of force" in its air strikes aimed at infrastructure including bridges and power stations, attacks which cut off clean water and electricity to Palestinian civilians. Legal scholars say armed reprisals against civilians are against the 1949 Geneva Conventions and not permissible under international humanitarian law. But Israel says its countermeasures are within its right of self-preservation, given the nature of its national security threats, and claims it is morally and legally bound to protect its nationals abroad. Israel's prime minister called Hezbollah's latest attack and seizure of two of its soldiers "an act of war," which raises even further legal questions about the nature of the current conflict.

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What is the doctrine of proportionality?
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. That said, experts say the proportionality principle is open to interpretation and depends on the context. "It's always a subjective test," says Michael Newton, associate clinical professor of law at Vanderbilt University Law School. "But if someone punches you in the nose, you don't burn their house down."

The whole thing can be read by clicking here.

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