Proportion And International Law
Writing in the Opinion Journal, Orde Kittrie, a professor of international law at Arizona State University and alumni of the Office of the Legal Adviser at the U.S. State Department from 1993 to 2003, discusses the concept of proportionality, and it's current misuse by opponents of Israel.
Geneva Convention Protocol I contains one version of the proportionality test, the International Criminal Court Statute another; neither is universally accepted. As a result, the proportionality test is governed by "customary international law," an amalgam of non-universal treaty law, court decisions, and how influential nations actually behave. It does not hinge on the relative number of casualties, or the force used, however, but on the intent of the combatant. Under customary international law, proportionality prohibits attacks expected to cause incidental death or injury to civilians if this harm would, on balance, be excessive in relation to the overall legitimate military accomplishment anticipated.
At Qana, Israeli aircraft fired toward a building to stop Hezbollah from shooting rockets at its cities. The aircraft did not deliberately target civilians; but Hezbollah rockets are targeted at civilians, a clear war crime. U.N. humanitarian chief Jan Egeland last week called on Hezbollah to stop its "cowardly blending" among women and children: "I heard they were proud because they lost very few fighters and that it was the civilians bearing the brunt of this." If Hezbollah used Lebanese civilians in Qana as "human shields," then Hezbollah, not Israel, is legally responsible for their deaths.
If Israel was mistaken and Hezbollah was not firing from or hiding amongst these civilians, the legality of its action is assessed by the proportionality test. Because the test is vague, there have been few, if any, cases since World War II in which a soldier, commander or country has been convicted of violating it. In the absence of guidance from the courts, determining whether Israel's military has failed the proportionality test depends on an assessment of what civilian casualties it expected, what its overall military goals are, the context in which the country is operating, and how the international community has in practice balanced civilian risk against military goals.
Israel did not expect civilian casualties; it warned civilians to leave Qana, and Israel's official investigation has concluded its military attacked based on "information that the building was not inhabited by civilians and was being used as a hiding place for terrorists." The law of war recognizes that mistakes are inevitable, and does not criminalize soldiers who seek in good faith seek to avoid them.
Israel's overall military goal is to survive attacks by enemies determined to annihilate it. Hezbollah leader Hassan Nasrallah has stated: "Israel . . . is an aggressive, illegal and illegitimate entity, which has no future. . . . Its destiny is manifested in our motto: 'Death to Israel.' " Thus Israel is attempting to prevent Hezbollah from using its 10,000 remaining rockets, and to implement the requirement of U.N. Security Council Resolution 1559 that Hezbollah be disarmed.
Meanwhile, Hezbollah and Iran–which provides this terrorist group with arms, direction and over $100 million a year–are in continual violation of international law. Their calls for Israel's destruction violate the international genocide treaty's prohibition of "direct and public incitement to commit genocide." Iran's effort to develop a nuclear arsenal that could obliterate Israel, or deter its responses to future Hezbollah attacks, violates the Nuclear Nonproliferation Treaty. Iranian (and Syrian) support for Hezbollah violates U.N. Security Council Resolution 1373, requiring states to "refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts." Hezbollah began the armed conflict with rocket attacks on Israeli towns and the abduction of Israeli soldiers: unprovoked acts of war violating an internationally recognized border.
As Kittrie points out later in the article, Israel's harshest critics have been far more egregious in their own handling of proportionality in recent years. It is only Israel that is held to these artificial standards that have no real existence in "international law". Read the whole thing. Kittrie is a lot more expert in this field than many of the people criticizing Israel.
