Proportionality: A Legal Concept Abused by European Politicians (From January 2009 / Tevet 5769)

by Gedalyah Reback

This is a post I find relevant to finally add to this blog given the current events surrounding the Goldstone Report on the war Israel fought in Gaza in December ’08 and January ’09.

The idea that Israel’s wars with Hamas and Hizbullah have been “disproportional” has been thrown around heavily since the Second Lebanon War in 2006. While over 1,000 Lebanese were killed, about 250 of them estimated to be Hizbullah combatants (Hizbullah has never been forthcoming about who exactly was a combatant in the organization’s service), this is not how this concept is evaluated in international law.

The term has been used in rhetoric and advocacy organizations’ propaganda as a way of assessing how many military combatants have been killed against the number of civilian casualties. This is not the correct use of the idea. As outlined in a Wall Street Journal op-ed (http://online.wsj.com/article/SB123085925621747981.html) by Harvard Law Professor Alan Dershowitz:


“there is no legal equivalence between the deliberate killing of innocent civilians and the deliberate killings of Hamas combatants.”

The issue of civilian casualties is separate from that of proportionality. Fir the first issue to actually be an issue, the civilians must be either deliberate targets, or their welfare recklessly ignored (and ignoring the welfare of civilians is an issue which is further understood on a virtual case-by-case basis).

Luis Moreno-Ocampo Chief Prosecutor at the International Criminal Court states in an open letter in 2003 (http://en.wikipedia.org/wiki/Proportionality_(law)#International_law):


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).

Go further into research if you would like, I am ordering articles on the topic from Rutgers library – which are free if you are a student (Specifically: Shamash, Hamutal Esther, “How Much is Too Much? An Examination of the Principle of Jus in Bello Proportionality” . Israel Defense Forces Law Review, Vol. 2, 2005-2006 Available at SSRN: http://ssrn.com/abstract=908369).

The above source, the same letter, reminds the reader:

“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 rules about “excessive” force are vague, perhaps intentionally vague. There is no operational definition of “excessive,” leaving the word up to interpretation. This is probably because there is no clear consensus on its definition, or that the term is weighable on a case-by-case basis, depending on what type of risk the enemy is to you.

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