Disproportionality

The issue of disproportionality always rears its head when Israel is involved..  except of course when the aid it provided to Haiti was quite disproportionate to its size. 

Nonetheless, its useful to consider several aspects of it.

Firstly, Alan Dershowitz last year here – describes how a Hamas attack which hit a Sderot kindergarten could have killed 46 children.  Fortunately the children happened to have just left the kindergarten, but that attack plus the thousands of other missiles fired by Hamas put many thousands of Israelis under attack and risk… and it’s these thousands of citizens under threat that need to be considered when proportionality is considered.

Secondly,  the Colin Powell doctrine encourages disproportionate force to win a conflict.  As stated here, in an article at the time of the Gaza war

The Powell doctrine is summarized as follows:

 

1) Military action should be used only as a last resort and only if there is a clear risk to national security by the intended target;

2) The force, when used, should be overwhelming and disproportionate to the force used by the enemy;

3) There must be strong support for the campaign by the general public; and

4) There must be a clear exit strategy from the conflict in which the military is engaged.

 

Perhaps the Powell Doctrine didn’t apply to Israel in 2001, as that was the very start of the mortar and rocket attacks towards Israeli towns in the Negev and massive force may not have yet been considered a “last resort.”   But while we do not yet know Israel’s exit strategy, the first three points are exactly in line with what Israel is doing today. Israel already tried truces, diplomacy, “soft” persuasion, and very limited military action to no avail, and in fact over time the rocket attacks only got more serious – and everyone in Israel realizes that the status quo was wholly unacceptable.

 

Most notable is the second point, where the Powell doctrine states that disproportionate force is not only not discouraged, it is required!

 

I have not yet seen anyone try to argue that the Powell doctrine is illegal under international law even though it explicitly states that the force used must be disproportionate. It must be one of those international laws that are only selectively invoked, for a single nation.

Thirdly, what does it mean when Israel is singled out in a disproportionate manner when other countries do much worse  ie double standards.

 

Proportionality is also considered in this Dershowitz response to the Goldstone Report which is worth reading: 

Under international law, the harm collaterally inflicted on civilians must not be disproportionate to the military objective.  (“ie Launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated”).  But there is no prohibition against using overwhelming—that is disproportionate —military force against a legitimate military object. Israel had a perfect right to kill every single Hamas fighter, even if that number was in the thousands, in order to stop the rockets from endangering millions of Israeli civilians.  The fact that 8,000 Hamas rockets succeeded in killing only a dozen or so Israelis, does not require Israel to limit the number of Hamas combatants killed…  nor that military force should not be greater than or disproportionate to the number of Israelis killed by the rockets that were being fired at Israeli civilians.  This is perfectly lawful under international law.  If proportionality were required in relation to military targets, it would be impossible for countries like the United States to employ its overwhelming military weapons—drones, tomahawk missiles, stealth bombers—against terrorists, who are poorly equipped but determined to kill.

Regarding the report, Dershowitz adds

“The Goldstone report is, to any fair reader, a shoddy piece of work, unworthy of serious consideration by people of good will, committed to the truth.  Most of the criticism and praise of the report has been based on its highly publicized and controversial conclusions, rather than on its methodology, analysis and substantive findings.  The one statement Richard Goldstone has made, with which I agree, is that many of the report’s most strident critics have probably not read the entire report.  But it is also true, though I have not heard the report’s biased author say this, that many of the report’s most vocal defenders and advocates have also not read it.

 It is not surprising that so few of the report’s critics and supporters have actually made their way through its dense and repetitive texts.  The version I originally read was 553 pages long plus appendices.  There are 1223 footnotes, though many of its most critical statements are not well sourced.  It is poorly written, obviously drafted by several different hands and without the benefit of a good overall editor.  It is laden with internal inconsistencies, shoddy citations of authority, and overall poor craftsmanship.  If a camel is a horse designed by a committee, this report lacks even the grace of a dromedary.”

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