23.07.2006
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Ratios and Proportions in war and love
There has been a spate of press reports about the Israeli response to the two different sets of kidnappings of its soldiers being disproportionate. Attacking civilian targets, bombing hospitals and schools, heavily skewed civilian death counts, belligerence towards the civilians, racism, deliberate targeting or purposeful civilian targeting are all factors mentioned as evidence that Israel is using disproportionate force. What exactly is this proportionate or disproportionate business? Surely this is war and everything goes, so this is pretty puzzling to a person. But there is much more to this than what meets the eye.
As it happens, this concept of proportionality has a long history behind it. Besides being part of the 'Just War Theory'; this concept was formalised in the 1907 Hague Conventions, which govern the laws of war and were explicitly written into the Article 49 of the International Law Commission's 1980 'Draft Articles on State Responsibility'. The doctrine says that a state can defend itself provided the response is proportional to the injury suffered. Also, the response must be immediate and necessary, no civilians are to be targeted and only sufficient force is to be applied so that the status quo ante is restored. To put it more simply, if somebody pinches you, you don't go about shooting him with a howitzer.
If you deconstruct this down to the basics, this definition is full of very difficult issues which make it hard to me to clearly identify this 'proportionality'. First of all, this definition is made for a state waging war against another state. How do Hamas and Hezbollah fit into this definition? If they were non-state actors, then does the doctrine of proportionality still count? In my opinion, it does. There are sufficient arguments to say that both these groups are state actors. Both are represented in their respective parliaments, both control and have access to media, both can commit their states (to an extent) to action, both control state funds as well as military and security forces and both have the ability to punish and dispense justice (and do so). On the other hand, they don't wear uniforms, they don't typically follow generally accepted laws of warfare, they are known as terrorist organisations etc. So it is a bit hazy and confused to say the least.
Secondly, what does the phrase, "defend itself" mean? Does that mean, defend against just this particular attack or try to react against potential future attacks? This is of course knowing that both Hamas and Hezbollah have rockets that they have used and can use again in the future? Thirdly, the response has to be proportional. Proportional in which way, to the immediate attack or to the previous attacks that weren't reacted to? Can I accrue attacks against me and then deal with them in one go? Fourthly, the response has to be immediate and necessary. What does immediate mean? One day? One week? One month? One year? Why immediate? Some states have a greater capacity for taking punishment. As the Hindi proverb goes: "a hundred strokes for the goldsmith, one stroke for the ironmonger". Furthermore, what is necessary is very relative like beauty; it is in the eye of the beholder. States have different values regarding necessity. USA went to war after 9/11; UK, Spain and India did not. So how and on what basis does one judge necessity? If every state has its own definition of necessity which will inevitably change depending on factors such as when the event took place, who was responsible, who was involved, etc., then how can we draw a broad based guideline on whether or not the action was necessary?
Fifth, no civilians should be targeted. This causes major confusion as to how should one treat civilians. Ok, agreed that one shouldn't bomb or shoot civilians, but how about bridges? If a bridge is used by terrorists to move missiles or to escape, is it worthwhile to bomb it to stop them escaping, even though the bridge is also generally used by civilians to escape? How about a hospital or a mosque? Are these to be sacrosanct, even if militants have taken refuge in them? This is where the problem of uniforms also comes in, how does an injured party distinguish between ordinary civilians and civilian looking militants? What is the role and responsibility of the militants in being in civilian areas?
The final contentious point is that only sufficient force should be used to establish status quo ante. There are two views on this. The first is, yes, it makes sense indeed, if somebody pinches you, then you pinch back. In other words, an eye for an eye. Sounds brutal, no? But that's what the law says. On the other hand, people looking for a resolution of the problem might say, let there be disproportionate war until one party is comprehensively defeated and only then this problem will be resolved otherwise this will keep dragging on and on. As we have seen down history, uneasy ceasefires without resolving the problem can sometimes create even bigger issues, just look at the two Koreas or Indo-Pakistan or UK/Ireland. So when you apply this principle of proportionality to the current Israel-Hamas-Hezbollah situation, it is simply not clear and for every claim of proportionality, one can argue the opposite quite easily.
Let us take a look at some other situations when proportionality was discussed. India has been taking hits from Pakistani backed terrorist for years since 1989 and it did not react militarily until the parliament was attacked, making this last attack sort of the last straw. After that it threatened open war. So was it wrong not to react before? Hardly a handful of people were killed in the parliament attack, so compared to that, the mobilisation of the Indian Army was vastly disproportionate, but nobody said so. The fact that the attack was on the Parliament made it worthwhile to almost go to war for. There have been bigger and much bloodier attacks, and India didn't do anything close to what it did after the parliament attack. What about Jalianwalla Bag massacre? Disproportionate use of force? Yes, definitely. But the previous example is not clear cut.
How about the German civilian deaths during World War II. As a proportion, Germany and Russia suffered many more civilian deaths compared to say France, UK and USA. So would it be fair to say that the allies used disproportionate force? Will be difficult to justify that knowing what we do about the Nazis. How about the other side of the world? America lost a very small number of civilians compared to the number it killed in say Japan. Even disregarding the nuclear bombing issue, does this mean that USA used disproportionate force?
What about Israel's policy of targeted assassinations? Now that's a curious situation to evaluate as far as proportionality is concerned. Broadly speaking, the world accepts this mechanism, because rarely has the general public said much about Israel bombing cars containing terrorists and militants, despite the almost regular incidence of civilians being killed due to these aerial strikes. So does this mean that it is proportionate? Or when Israel went after the Munich terrorists? Was that proportional? Strangely enough, in my view, the world thinks that the policy of going after cold blooded Palestinian militants is considered to be disproportionate. Also in my view, the reason is because it violates the "immediate" principle.
How about the complaints during the two Iraq wars, that it was rather disproportionate that the Americans used laser guided bombs and missiles against the poorly armed Iraqi Guards? Also, what is the difference between Israel's actions against Hamas and Hezbollah in Palestine and Lebanon, versus the NATO action against Serbia where bridges were destroyed, power stations and embassies bombed and where civilians were bombed and killed? Did anybody hear anything at all about proportionality then?
To wrap it up, I am afraid I am no closer to getting a good rule of judging if an action is proportional or not. There are simply too many inconsistencies in how the world judges an action and labels it as being proportionate or not. That might be because of who commits the original action and its aim, who reacts and the aim of that reaction, what was the channel or means of reaction, and what was the impact of the reaction. Each factor seems to bring out a different conclusion about proportionality. So to wrap up, any time somebody says proportionality is violated, I would take it with a grain of salt.
Dr. Bhaskar Desgupta
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Comments
Derek Tonkin said _
I fully agree with Dr Desgupta. Writing in "The Times" today, Lord Howell
and Baroness Symons make the point that "it is right to strike against
Hizbollah, but wrong to pulverize little Lebanon." British Foreign Office
Minister of State Kim Howells, who speaks his mind, has also been highly
critical of Israeli tactics and their logic when he visited Lebanon today.
Speaking personally, I believe that Israel has a perfect right to conduct
as many surgical air-strikes as it judges necessary to eliminate Hizbollah
terrorist attacks on Israel. But I would not know what is a
"proportionate" Israeli response. When you are trying to knock out
terrorists, you may need to strike back 10 times, 50 times, even 100 times
more strongly than you have been attacked. Israeli air strikes however
have been indiscriminate and as such are against international
humanitarian law. Their current cross-border ground assaults, which seem
to be specifically targeted, may have better justification.
The root cause of the problem however remains the Arab-Israel dispute,
which goes back to the foundation of Israel in 1948. This basic fact is
being lost in all the current US rhetoric about the "war on terrorism".
Hizbollah may a be a terrorist organisation, but it is also a political
organisation supported generally by the 40% Shia population of Lebanon,
with deputies in the Lebanese Parliament. The Israelis are still building
settlements in Occupied Palestinian Territory on the West Bank. They
should stop this, and get back to the "Road Map" for a settlement based on
the 1967 frontiers endorsed in UNSCR 252 of 1967.
Prof. Abid Bahar said _
Love missing from one's heart or from the pen?
I find pleasure in reading Dr. Bhaskar Desgupta analysis. But a careful
understanding of the ornamental writing style shows that as always he
motivates us to travel to his familiar path of a point of no return.
Contrary to his style however, I find in Derek Tonkin analysis the "road
map" to the deeper problems Dasgupta raised.
Dr. Bhaskar Desgupta's is a wrapped package of an analysis of war
delivered with marked title: "Ratios and Proportions in war and love", but
when opened, inside there is nothing about love; it is missing from one's
heart or from the ornamental pen?
Your Comments here_
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