“Proportional to What?” The Economist. December 30, 2008.
An Annotation
In the context of the latest episode of violence in Gaza, renewed debates about the use of proportional force in war have resurfaced. According to just war theory, the proportional use of force must be assessed in determining whether to go to war, as well as in regulating conduct throughout the entire conflict. Given the rising number of casualties and immense violence and destruction that have occurred, these questions maintain their salience and continue to provoke complex debate about the protection of human rights for all in the midst of armed conflict.
“Proportionality in jus ad bellum and jus in bello are hard to separate: indiscriminate killing will color the view of whether a war is justified; and even proportionate actions in battle will be denounced if the war is deemed unjust…In the Israeli-Palestinian context, arguments about legality fast turn into ones about history.”
For many, debates over proportionality raise significant questions about the justification and legitimacy of war. However, escalating death tolls in Gaza highlight the fact that discussions can no longer afford to merely focus on proportionality in war. Instead, as the conflict in Gaza has illustrated, the need for more adamant adherence to human rights conventions is necessary. According to the article, the need to uphold and preserve the 1949 Geneva Conventions is of particular importance. Moreover, in this most recent renewal of violence in Gaza concerns over proportionality may become laden with political and historical controversies, thereby further obscuring the importance of much needed human rights considerations. To complicate matters further, this conflict begs several other difficult questions—the drawing of distinction between civilian and soldier, the role of state and non-state actors, and the consequences of unequal capabilities in war making—making international legal interpretation confusing and underscoring the need for a broad human rights framework to dictate policy.
These issues and others are considered in this month’s Roundtable.
Monday, February 2, 2009
Protecting Human Rights in Conflict
by Clair Apodaca, Florida International University
"It is difficult to get parties to a conflict to see the benefits of respecting human rights and humanitarian law principles while in the heat of battle. This is precisely why the international community needs to step in. The international community should demand that both principles of discrimination and proportionality be respected."
The Just War Theory of Jus in Bello is the international community’s attempt to ensure respect for human rights and human welfare during armed conflicts. The principle of proportionality and the obligation to distinguish between combatants and civilians in attacks are two related notions that are fundamental to the protection of human rights during conflict. The principle of proportionality limits the amount of violence and destruction that is morally permissible. By contrast, the principle of discrimination (or distinction) discriminates between legitimate targets, such as soldiers and weapons depots, and illegitimate targets, specifically noncombatants such as civilian populations and their property.
The principle of discrimination protects civilians from indiscriminate, battle-related carnage. Governments cannot indiscriminately drop bombs in heavily populated areas on hopes of destroying combatant targets. Michael Walzer, in his classic Just and Unjust Wars (1977), asserts that the government maintains the responsibility to determine who is a combatant and who is not before it employs force. The fact that members of Hamas do not necessarily wear uniforms or visibly carry guns does not relieve Israel from its obligations under Just War Theory, particularly with regards to the principle of discrimination. There are legitimate and illegitimate military targets in any conflict. The principle of discrimination permits, as an unavoidable military necessity, a country to kill hostile combatants who are participants in the conflict. But this same principle protects non-combatants from being directly targeted with deliberate intent. Israel’s response to the provocative, yet generally unsuccessful, acts of overt, calculated violence by Hamas violates the principle of discrimination. Israel’s retaliatory attacks have led to civilian casualties with, in fact, very few Hamas fatalities. To date, over 1100 Gaza civilians have been killed (more than a third of them children) and many more have been injured by Israel’s disportional response to Hamas’ confrontational actions. Under no condition is the killing of children an acceptable or regrettable form of collateral damage justifiable on the grounds of an anticipated military advantage. Furthermore, it is difficult to imagine how the casualty count could include so many children unless non-discrimination between combatants and civilians was part of Israel’s recent military strategy.
As for the principle of proportionality, it attempts to restrict both the excessive use of force and the gratuitous recourse to violence against civilian populations. It does not mean, however, that the number of civilian casualties must be approximately equal on both sides. Proportionality means that the injury suffered by the civilian population must be relative to the military advantage sought for through military action. Proportionality is thus designed to rein in retributional violence that a sense of revenge or retaliation in conflict often provokes. As Jason Litwack explains, “the principle of proportionality has long been firmly established in humanitarian law as it is inherent in principles of necessity and humanity which form the basis of humanitarian law. The prohibition of unnecessary suffering (Article 23(c) of Hague Convention IV of 1907) was the first codification of the principle of proportionality which had, however, already been accepted in international customary law. Today it has found broad recognition in the new rules for victims of armed conflicts in Protocol I Additional to the Geneva Red Cross Convention of 1949.” Again, proportionality in Jus in Bello prohibits the use of excessive force. Thomas Hurka argues that even acts of self-defense are wrong if harm caused by the retaliatory attack is out of proportion to the aggressive act. In this context, the bombing of the UN Relief and Works Agency warehouse (which under international humanitarian law enjoys immunity from attack), located in the heavily populated Gaza Strip, with white phosphorus shells is a clear violation of the principle of proportionality. Not only did the attack of January 15, 2009 violate the right of the civilian population to humanitarian aid, but the use of phosphorus shells is illegal in civilian areas because such bombs cause extremely painful (and often indiscriminate) injuries that are difficult to treat. White phosphorus sticks to the skin and burns to the bone. In addition, white phosphorus fires can not be put out with water or traditional fire extinguishers, thus rendering the risk of fire propagation in densely populated areas very high.
It is difficult to get parties to a conflict to see the benefits of respecting human rights and humanitarian law principles while in the heat of battle. This is precisely why the international community needs to step in. The international community should demand that both principles of discrimination and proportionality be respected. But more than demands for the respect of the Jus in Bello, specific actions by the international community are required. The West, particularly the United States, can, and in fact ought to, suspend transfers of cash, weapons, or ammunition to Israel while it is using those to violate the basic rights of the people of Gaza. Likewise, countries that are sympathetic to the plight of the citizens of Gaza should use their influence to contain the aggressive actions of Hamas since, in the end, such acts and hostilities towards Israel put Gaza’s population at risk for further human rights violations, injuries and death. The international community, under the authority of the United Nations, needs to establish a committee to investigate the many reports of human rights violations, the targeting of civilian populations, and other violations of international humanitarian law by both sides of the conflict. Israel, a prominent military power, has the sophisticated technologies to track down Hamas’ rocket launchers and destroy them with few civilian casualties. By targeting civilians and humanitarian aid, Israel ends up boosting Gaza’s population’s loyalty and support for Hamas. By provoking Israel into using indiscriminate and disproportionate military violence, Hamas hopes to garner increasing support from Palestinians but, in so doing, condemns them to be victims of violence and human rights exactions. Following the principles of discrimination and proportionality of the Jus in Bello are absolute preconditions (to be recognized by all) for any protection of the civilian populations, including children, in conflicts such as the present one between Israel and Hamas.
Stopping the Killing and/or Stopping Human Rights Violations
by Edward Friedman, University of Wisconsin-Madison
"It is not obvious that singularly emphasizing a human rights approach to the conflict brings the day of peace closer. The big issue is a political compromise so people can live in peace with each other. It is not the human rights or wrongs of some battle that should be decisive."
The relationship between promoting human rights and stopping wars can be perplexing. The 19th century origins of the Geneva Convention and the International Commissions of the Red Cross (ICRC) are warnings about the moral danger, ambiguities, or tensions of bringing war within the arena of human rights considerations. Human rights and war can be a toxic cocktail. One should not want to make war more likely or legitimate or deadly by seeming to say that the killing machine on one side or the other is acting humanely, as if that makes war okay. War is hell.
A central reason why European governments responded positively to requests first to treat the wounded in war well and then also to treat prisoners of war “humanely” was because the power-holders feared that war was becoming so cruel, devastating and monstrous that citizens might reject war as a policy option.
It is also a serious question whether the ICRC, during the war to defeat Nazi expansionism, helped perpetuate the Nazi extermination machine by visiting POW camps but staying publicly silent about the mass murders being carried out by the Nazi killing machine. A singular focus on human rights which is not on the side of stopping the sources of the killing may not produce advances for humanity.
It is even dangerous to respond too quickly to tales of inhumanity. Claims of atrocities, as with the English portrayal of Germany under Wilhelm during the First World War, were part of a British propaganda campaign to bring Washington into the war on London’s side. It is quite easy to imagine better consequences for all sides had Americans not been moved by tales of German atrocities and had America instead remained neutral in the European war.
Opposition even to the worst of war atrocities should not be one-dimensional. The atomic bombings of the urban centers of Hiroshima and Nagasaki during the Pacific War against Imperial Japan’s militaristic aggressions were, to me, war crimes. The bombs indiscriminately killed non-combatant civilians. Yet those bombs saved the lives of at least half a million non-Japanese Asians who were dying in huge numbers in Japanese colonies and who would have kept on dying in increasing numbers if the war had been prolonged and not suddenly ended. The American war crimes sped the end of the killing of huge numbers of innocents. Tragically, there are worse things than war crimes.
In the Middle East, only a negotiated peace between Israelis and Palestinians can stop the killings so that the people of both nations can live normal lives. It is not easy to predict the future consequences of the very, very strong and murderous Israeli response at the end of 2008 to Hamas’ indiscriminate shelling of civilian Israeli populations, clearly a war crime. It is not obvious that singularly emphasizing a human rights approach to the conflict brings the day of peace closer. The big issue is a political compromise so people can live in peace with each other. It is not the human rights or wrongs of some battle that should be decisive.
It is well-recognized that in a human rights effort to protect refugees, the well-meaning can unintentionally succor a war faction and permit it subsequently to continue its killing, often ethnic-cleansing. Since the Arabs treated the U.N. creation of a Jewish homeland as a catastrophe and a pretext for war and since Israeli forces seized success in that war as an opportunity to force Palestinians to flee, Gaza has been just such a refugee camp, eventually led by non-conciliationist Hamas killers of Jews. Does the 2008-2009 war with Hamas make it more or less likely that Hamas will be able to compromise for peace? That should be the goal. Peace and reconciliation are the only way to extinguish the long-lingering and explosive causes of endless abuses of human rights in that region.
Edward Friedman is a professor in the Department of Political Science at the University of Wisconsin, Madison. He is a long time member of Amnesty International, Human Rights Watch and Human Rights in China. In the 1980s he was on the staff of the Foreign Affairs Committee where the issues he worked on included human rights, death squads, arms embargoes, and peaceful and democratic reconciliation. At Wisconsin, he introduced courses on "The Politics of Human Rights" and "The Politics of Freedom." His most recent book is "Political Transitions in Dominant Party Systems."
Proportional to Life...
by Emma Gilligan, University of Connecticut
"The question that should ultimately sit at the foreground of this debate on proportionality is to what degree this issue should be considered in light of international humanitarian law."
Proportional to Life…
by Emma Gilligan
The Economist piece entitled “Proportional to what?” poses a dangerous question. The notion, as the article suggests, that proportionality in war is a “slippery idea” or that the facts are “nebulous” is the work of either an intentionally provocative or idly cynical author. Whatever the motivation for the words, it is precisely the dismissive tone embodied in such statements that has contributed to and defined the attitude more recently of larger states, like Israel and Russia, to issues of accountability for the death of civilians.
Israel can invoke “collateral damage” in its depiction of events in Gaza, as it has done. And in doing so, it merely joins an odious chorus that employs this crude euphemism in its defense. The first struggle that has been lost in asymmetrical wars like Israel versus Palestine is the semantic one. At the moment when “collateral damage” was introduced into the discourse of war, we lost a battle for the recognition of the civilian as a human entity. The distinction between human beings and legitimate targets of war converged to become almost mutable identities. Moreover, if we can easily claim that those who commit racial crimes dehumanize their subject, we too should look at the ways in which we characterize the victims of our own wars.
There is no doubt that the bombing of the U.N. Relief and Works Agency warehouse with white phosphorus shells and the appalling incident in the eastern Gaza suburb of Zeitoum were disproportionate attacks. The order handed down to Israeli troops in the Givati Shaked Battalion was “Fire on anything that moves in Zeitoum.”
Before discussing proportionality, however, we should address the issue of asymmetrical warfare. Recent conflicts, and in particular counter-terrorist operations, have been crudely asymmetrical. Large states with powerful weaponry lead attacks from the air, with rocket strikes and incendiary bombs. To name just two instances in the past decade, Russia versus Chechnya, Israel against Lebanon and now, Israel against Palestine. The question that should ultimately sit at the foreground of this debate on proportionality is to what degree this issue should be considered in light of international humanitarian law. What is the responsibility of larger states employing mass weaponry on smaller enemies who have very little real chance of defending themselves or their civilian populations?
Disproportion does not only take place in times of war. The notion of proportionality has a historical memory in the Israeli-Palestinian conflict that most are aware of. The wall built along the Gaza strip is, as Roger Cohen wrote, a denial of the reality over the border. But it is one of a series of disproportionate policies imposed on Palestine over a long period of time to inhibit their movement and devalue their national self-worth. The recent conflict has only taken this humiliation further. Hamas is no doubt to blame for the escalating violence with its Qassam rockets on Israeli cities, but the civilians of Gaza are not to be bombed into submission nor are people to be deprived of food, water, and medicine. Most profoundly, as the case with Chechens in Grozny, they are not to be denied a state of emergency and time for flight. Borders should always be opened to allow for flight. And the wounded and dead should be evacuated. Those caught in Grozny over the winter of 1994-1995 are too stark a reminder of the low priority states often give to citizens caught in war.
The question posed by The Economist should not therefore be “proportional to what?” A better question to pose would be “responsible to whom?”
After completing her doctoral studies in Russian history at the University of Melbourne, Australia, Emma Gilligan was a postdoctoral fellow in the Department of History at the University of Chicago from 2003-2006. During this time, she completed her book Defending Human Rights in Russia; Sergei Kovalyov Dissident and Human Rights Commisioner, 1969-96 (Routledge, 2004). This book traces the evolution of the Soviet human rights movement from the 1960s in Moscow to the collapse of the Soviet Union in 1991. It analyzes, in particular, the rise of Sergei Kovalyov, Russia's first human rights commissioner under the presidency of Boris Yeltsin and the impact of former Soviet dissidents on the discourse of human rights in the post-Soviet era. Her second book, War Crimes in Chechnya (Princeton University Press, forthcoming 2008) examines the war crimes committed by Russian soldiers against the civilian population of Chechnya. The study places the conflict in Chechnya within the international discourse on humanitarian intervention in the 1990s and the rise of nationalism in Russia. Emma Gilligan is the author of articles for the Chicago Tribune, ‘Why there is no Peace in Chechnya,’ 2005 and ‘US Loses High Ground on Human Rights,’ 2006 and the International Herald Tribune. She is a member of the Gladstein Committee for Human Rights and a joint hire with the Human Rights Institute. She teaches courses on the history of human rights and genocide after the Second World War.
Proportionality and Unjust Wars
by Sarah Stanlick, Harvard University
"Negating the inhumane elements of war does not mean that war is ever perfect or preferable. But it does ensure that the innocent are protected, and the human rights of combatants and non-combatants alike are sacrosanct despite the chaos."
As violence rages in the Middle East, policymakers, academics, and the public alike have been embroiled in debate over the proportional use of force. As The Economist article points out, historical grievances leave both Israelis and Palestinians with compelling arguments for defense and resistance. However, at this point, the cycle of violence has perpetuated blame that goes beyond a simple tally sheet. World leaders remain divided on the rights and wrongs of the Israeli-Palestinian conflict, but human rights groups internationally are crying out for Israel and Hamas to end attacks that “do not discriminate between civilians and military targets.” While there is much debate over the use of rocket attacks to eliminate targets where aggressors have taken refuge, there are clear human rights violations that must be addressed. Unfortunately, what is being experienced now is not a mindful use of force meant to achieve peace, but a dizzying amount of force and human rights abuses that amount to an unjust war.
When discussing proportionality, oftentimes the debate is centered too literally on casualty tallies rather than the contextual wrongs of decisions like the one that was made to block off aid to Gaza. What happens when the means to survive are denied to a population? Is this not as bad as brute force, as it ensures suffering and starvation? Essentially, blocking off the aid needed to keep civilians healthy in light of hospitals and infrastructure being destroyed is a death sentence. One must take into account that despite questions about Hamas’ motives (especially in light of the rockets that were created during the ceasefire period), they gained power by concentrating on the social, welfare, and educational needs of Palestinians. By cutting off the supplies and humanitarian aid to those in Gaza, this only serves to consolidate anger and blame for the Palestinian situation on Israelis. As Israeli officials contended that no humanitarian emergency exist in Gaza, the people who are picking up the pieces of their lives—with little food, no electricity, and no gas—see a much different suffering.
Equally wrong is the entrenchment of Hamas leaders among innocent Palestinians in Gaza. As rocket attacks attempt to mitigate the threat of Hamas attacking Israel, terrorist leaders have hidden out among innocent families and have used the casualties around them to bring public scorn against Israel. As hospitals fill with mainly civilians, it is clear that the toll of war has been paid more by the innocents than the combatants. When one must nitpick about the definition of “civilian,” there is more at play than a simple numbers game, there is a true intent to harm. The proportional appropriateness of force is multilayered and confusing, but there are egregious trespasses of Just War Theory that go beyond proportionality. Detractors of the theory point to the “moral illusions of war,” but when decision makers ignore the tenants that are set in place to ensure safety of the non-combatants, there is no justice left for the innocent.
Despite the ferocity of the conflict and losses on both sides, Israeli political leaders on the far right have gained popularity, as public sentiment is pushing for a harder line against Hamas. Following our election of hope, Israel is now in the midst of an election centered on fear. As our own recent history has taught us, when decisions are based in fear, the end result is usually a harried, ill-conceived policy that can end in devastation. The international community can no longer ignore the complexities of the Israel-Palestine conflict, and must dedicate efforts to securing and maintaining peace in the region. In his interview with Al-Arabiya TV, President Obama called for a holistic approach to the conflict that goes beyond blame and works with all the actors in the region to bring about a lasting peace.
The very nature of conflict is ugly. Just war theory is simply that—a theory—meant to guide decision makers to achieve their aims while protecting as many innocents as possible. In The New Republic, Michael Walzer affirms, “…war isn’t an act of retribution; it isn’t a backward-looking activity, and the law of even-Steven doesn’t apply.” In other words, despite the facts and analysis that may accompany a war’s inception, there is no benefit of hindsight. The answers are not clear, and therefore difficult decisions must be made using the best intelligence and data available. As the author of Just and Unjust Wars, Walzer came to the conclusion that there is sometimes no other option than the utilitarian for leaders to choose in the face of inhumane and unjust behavior, but that those decisions are no more cost-free than any other difficult decision made in government. Barring Immanuel Kant’s “Perpetual Peace,” there will be wars, and the onus must be on leaders to make the best decisions for the maximum number of people. As the saying goes, good should not be the enemy of perfect. Negating the inhumane elements of war does not mean that war is ever perfect or preferable. But it does ensure that the innocent are protected, and the human rights of combatants and non-combatants alike are sacrosanct despite the chaos.
Sarah Stanlick is currently heading a health and human rights project working to alleviate health burdens on the underserved population of Lawrence, MA and as a teaching assistant at Harvard University. She formerly served as Research Associate to Samantha Power at the Carr Center for Human Rights Policy at the Harvard Kennedy School, and was also affiliated with the Belfer Center for Science and International Affairs at HKS. She graduated as a Trustee Scholar from Lafayette College and holds a Master’s degree in Conflict and Coexistence from Brandeis University.
Healing from War to End all Wars
by Christien van den Anker, University of West London
“Human rights discourse is not free of the tendency to blame even if the starting-point of the human rights doctrine is equality and respect for the dignity of all peoples."
Healing from War to End all Wars
by Christien van den Anker
The First World War was known as the war to end all wars. After the Second World War, and especially in reference to the Holocaust, the urgent slogan was “Never Again.” Although these hopes to end war and genocide have not yet been fulfilled, they inspired the worldwide moral stance against war and a host of international instruments and bodies contributed to the protection of both civilians and combatants during war.
Often history is invoked to make the point that “there will always be war” or “they are always fighting in that region.” However, I would like to make a different point. History is important to heal from, as it is very hard to think clearly when there are still big emotions attached to the previous wars affecting the people involved.
In the current debates around the Israeli attacks on Gaza this is evidenced all the time. I was reminded of it not only in the media and public debate but also in teaching sessions on this issue. There is a lot of confusion and we are all pressured to take sides. Blame is either apportioned to the side of Israelis when accused of disproportional violence or to the Palestinians in Gaza for targeting civilians. This is then quickly linked to more general attitudes that are anti-Arab or anti-Jewish. These kinds of exchanges are not helpful. And human rights discourse is not free of the tendency to blame even if the starting-point of the human rights doctrine is equality and respect for the dignity of all peoples. And even if the context for the United Nations framework on human rights is the U.N. Charter which calls for peaceful relations between nations.
Not assigning blame is not the same as condoning the violence used by either party; it is still everyone’s responsibility to stop wrong actions and to reach for human rights-based solutions.
So what is a better way of looking at these outbursts of a longstanding conflict? We need to remember that both peoples are after the same thing: a peaceful, secure, and just solution in which the human rights of all are guaranteed. The majority of people in both places are aiming to live good lives and sometimes get confused about what measures may bring that about. Without dealing with our emotions about the past, the other side of the conflict may easily be demonized and seen as more threatening than is realistic.
In practice I have heard and read many stories of people coming together across divides and dealing with the strong emotions that this brings up for them. This is not easy, especially in times where the conflict is heated, but it is clear that there are brave people on both sides who are moving towards closer relationships between Palestinians and Israelis. They do this despite their conditioning from a young age to see the other as dangerous enemies.
How can the international human rights movement help? By organizing to:
support both peoples to live with peace and justice, see their humanity and how they have been set up to fight each other historically;
to hold out the bigger picture of international positioning around the Middle East and take responsibility for getting human rights-based policies agreed in our countries;
supporting peace movements and stating the message that there is no military solution to the current situation—only diplomatic solutions;
stand up against anti-Jewish and anti-Arab and anti-Muslim messages everywhere;
listen with encouragement to everyone about their experiences and memories of war,so that we react with fresh thinking to conflict and not based on old pain and fear;
and spreading information on the many initiatives and acts that Israelis and Palestinians carry out to support each other and collaborate effectively.
So let us not partake in the discouraged, confused and fearful debates that try to blame but instead contribute our privileged position of having information outside of the mainstream media that tells us more about the international manipulation of both peoples and the reality of actual peaceful co-existence to bring about more widespread belief in a just peace for the whole of the Middle East. Lack of trust makes every relationship suffer and is a basic ingredient for human rights cultures.
Finally, it may well be that despite all the suffering the latest round of the conflict brought, there will be increased attention for the issues and more possibilities for increased dialogue, leadership, mobilization for human rights as a result.
Dr Christien van den Anker is Reader in Politics at the University of the West of England. Her specialization is in Global Political Theory and Global Ethics. Her recent research has been on contemporary forms of slavery, migration and equality. Her most recent publications are “Human Rrights in Iran.” and “The Relevance of Ethnography of ‘Others’ for Global Political Theory” in the Journal of International Political Theory, (October 2008) and the cutting edge collection of essays W. J. Doomernik (eds.) Trafficking and Women’s Rights (Palgrave, 2006). Christien is founding co-editor of the Journal of Global Ethics (Taylor and Francis) and edits a book series on Global Ethics for Palgrave. More information can be found at her department website http://www.uwe.ac.uk/hlss/politics/staff_cVanDenAnker.shtml.
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