Notes on the Gaza War Part III – Walter Russell Mead and Proportionality in War

Walter Russell Mead has an interesting (if wrong) piece on the attitudes of the American public vis-a-vis the Gaza war.  The gist of his argument is that Americans do not object to Israeli actions in Gaza, because they reject the concept of proportionality in war:

In any case, when Israel brings the big guns and fast planes against Gaza’s popguns and low tech missiles, a great many Americans see nothing but common sense at work. These Americans aren’t mad about ‘disproportionate’ Israeli violence in Gaza because they don’t really accept the concept of proportionality in war. They think that if you have jus ad bellum, and rocket strikes from Gaza are definitely that, you get something close to a blank check when it comes to jus in bello.

Nice theory, as far as it goes.  Mind you, there’s an alternative, and I would suggest, more plausible, explanation.  It isn’t that Americans reject the notional of proportionality, it’s that they don’t believe (quite reasonably, in my view) that Israel’s actions in Gaza are disproportionate to the military goals that it seeks to achieve. The problem with Mead’s argument is that he mischaracterizes the test of proportionality in just war theory.  As he sees it:

Theoreticians of “just war” say that in order for war to be justifiable, two tests must be met. You have to have a legitimate cause for war (self defense, for example, rather than grabbing land from a weaker neighbor) and you must fight the war in the right way. You must fight fair (that is, fight a just war), and you must fight nice.

One of the criteria for jus in bello (fighting nice as opposed to jus ad bellum which is about whether it is just ) is proportionality. If the other guy comes at you with a stick, you can’t pull a knife. If he’s got a knife, you can’t pull a gun. If he burned your barn, you can’t nuke his capital. Your use of force must be proportionate to the cause and to the danger.

His description of proportionality is simply wrong.  Proportionality doesn’t require that you fight “fair”, or that you the use the same degree of force as your enemy.   It does require that you not launch attacks on military objectives in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (See, for example Article 8(2)(b)(iv) of the Rome Statute governing the International Criminal Court).  The laws of war don’t preclude you from bringing a gun to a knife-fight – they do preclude you from winning the knife-fight by killing everyone in sight.  

Is it the case that Israeli attacks on Hamas over the past weeks are “clearly excessive” in relation to the anticipated (and actual) military advantage to be achieved (namely the cessation of rocket attacks on Southern Israel)?  That’s far from obvious.  At the very least, it isn’t outlandish to suggest that 140-odd Palestinian fatalities (many of whom, even on Palestinian accounts, were Palestinian combatants, thus not subject to the proportionality restriction and some of whom were likely killed by Palestinian rocket misfires) are not clearly excessive relative to Israel’s legitimate war aim of providing security for the residents of southern Israel.  

In that light, if Americans are less critical of Israel than, say, Europeans, it isn’t because they don’t understand proportionality.  Quite the contrary, it is precisely because they do understand proportionality that they are less critical of IsraelIt’s Israel’s critics, who point to any civilian casualties as prima facie evidence of war crimes, who fail to grasp the concept of proportionality.  Those critics fail to grasp that, as Luis Morena-Ocampo, the Chief Prosecutor at the International Criminal Court observed, in his report on alleged US war crimes in Iraq:

the death of civilians during an armed conflict, no matter how grave and regrettable, does not in itself constitute a war crime.

While Mead’s article tries to find examples of America’s disregard for proportionality in US history, his examples undermine his thesis.  For example, while he points to the Allied blockades of Germany in WWI and WWII, or the Allied bombing of German civilians as evidence of American disregard for the notions of proportionality, he seems to ignore the, not irrelevant, point that in both WWI and WWII the blockades were instigated, and largely enforced, by the Royal Navy (and in WWI heartily opposed by the Americans right up until the time that German u-boats started sinking American ships.  Moreover, arguably, the blockade did more to end WWI than any other, raising the possibility that it could be justified on proportionality grounds) or the fact that for much of WWII, US air force doctrine focused on daytime precision attacks on military targets, in sharp contradistinction to the British practice of firebombing cities. 

In short, if Americans support Israel’s attacks on Gaza, it isn’t because of some innately American aversion to the concept of proportionality, it’s because Americans, quite reasonably, don’t see Israel’s actions as being disproportionate.

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