The End of Proportionality
Accusations of "disproportion," like those against the IDF, will almost
certainly be applied to American forces when domestic and international
opposition to US actions can find no other complaint. Yet it is apparent
that proportionality is not a useful yardstick for determining appropriate
levels of force. The principle of proportionality is so vague and difficult
to apply with any consistency, and so widely misunderstood, that the US
military should discard it. Instead, American authorities should simply take
the position that US doctrine proscribes use of force that is
indiscriminate, wasteful, excessive, or not necessary to achieving military
objectives. America's armed forces should openly acknowledge that they do
not abide by the principle of proportionality because it is so problematic.
The End of Proportionality
JONATHAN F. KEILER
US Army War College Journal, Parameters Spring 2009
www.carlisle.army.mil/USAWC/parameters/09spring/keiler.pdf.
The 2006 Israel-Lebanon war generated the first large-scale and systemic
references to a heretofore mostly ignored law of war concept, the doctrine
of proportionality. Occasional references to proportionality are found in
accounts of the Iraq War and in histories or scholarly works of the last
century. In general, prior to Israel's 2006 campaign the proportionality
doctrine received little scholarly interest and even less attention among
the governing classes and international media.1 In all likelihood, critics
of American action in Iraq or Afghanistan would have more thoroughly
employed this doctrine in their efforts to end or limit US military
involvement had they simply thought of it. But by 2006, when the doctrine
was widely known, the major battles in Iraq and Afghanistan were finished.
Israel's December 2008 to January 2009 campaign in Gaza renewed drumbeat
accusations in the media and from much of the international community that
the Israel Defense Force (IDF) used disproportionate force against
Palestinian terrorists and guerrillas. The George W. Bush Administration
expressed concern for innocent civilians caught in the crossfire but
resisted labeling Israeli actions as disproportionate. President Bush
generally defended Israeli actions and declined to join the European Union
and even close allies such as the United Kingdom in labeling Israel's
tactics as disproportionate.2 A year before the Gaza offensive, in February
2008, then-Secretary of State Condoleezza Rice declined a reporter's
invitation to label Israeli retaliatory action as "disproportionate."3
This is a sound policy that the Obama Administration would be well advised
to follow. Though American military action in Afghanistan or Iraq has not
yet received comparable condemnation (at least on grounds of
"disproportion"), it is only a matter of time before this occurs, as soon
as a fight is significant enough to warrant it. There is little difference
in the operational practices used by the Israeli and American militaries,
which not only share many weapon systems but also elements of tactics and
training.4
American doctrine does acknowledge the concept of proportionality. Field
Manual (FM) 27-10, The Law of Land Warfare, specifies, "Those who plan or
decide upon an attack, therefore, must take all reasonable steps to ensure
that the objectives are identified as military objectives or defended places
within the meaning of the preceding paragraph but also that these objectives
may be attacked without probable losses in lives and damage to property
disproportionate to the military advantage gained."5 The reference to the
manual's preceding paragraph (Chapter 2, Paragraph 40) is noteworthy. There
the list of acceptable targets is rather broad, including defended cities
and towns, factories, warehouses, ports, railroads, and other places that
offer an enemy a military advantage or accommodation, all venues that by
their very nature could have large civilian populations.6 The
proportionality rule does not negate attacks on such facilities so long as
a reasonable military necessity exists and that necessity can be reasonably
balanced against anticipated civilian casualties.
The problem with the proportionality rule is its frequent and remarkable
misinterpretation. The extent of this confusion is so great as to severely
limit the utility of this law of war concept as presently structured. As
both the Lebanon and Gaza campaigns illustrate, the doctrine is subject to
distortion to the degree that applying it is actually harmful to the
conduct of lawful and legitimate military campaigns.7 As a practical matter,
invoking the doctrine confuses important issues and undermines respect for
the law of war. Michael Walzer, one of the most prominent ethicists of war
and its consequences, notes that false claims of disproportion typically
have the effect of justifying excessive violence, which he characterizes as
a "dangerous idea."8 This article will propose the elimination of
proportionality as a law of war concept, at least by the American military.
Existing doctrine, standards, proscriptions, and ethical guidelines are more
than sufficient to govern proper conduct in combat without descending into
the semantic, legal, and ethical miasma of proportionality.
Proportionality and the International Community
On 12 July 2006, Lebanon-based Hezbollah guerrillas raided Israel, killing
several soldiers and kidnapping two others. Israel had withdrawn from
Lebanon six years earlier and in the intervening years had absorbed many
other attacks without delivering a substantial or effective riposte. The
2006 assault, which came under cover of an artillery barrage along Israel's
northern border, was a classic causis belli, entitling Israel to the status
of a belligerent and granting the right to wage war. Israel's government
launched a broad air campaign against Hezbollah facilities and positions,
and to a lesser extent against Lebanese infrastructure.
Almost immediately Israel was accused of violating the doctrine of
proportionality. The European Union Presidency accused Israel of a
"disproportionate" response on 13 July 2006.9 French President Jacques
Chirac echoed this, calling Israel's response "disproportionate" in a
Bastille Day speech.10 Then-United Nations Secretary General Kofi Annan
joined in accusing Israel of "disproportionate use of force."11 Amnesty
International promptly accused Israel of "war crimes," including, among
other things, "disproportionate attacks."12
It is likely that the "disproportionate force" reaction arose when and how
it did because governments, organizations, and people that reflexively find
fault with Israeli military operations had little else to criticize in July
2006. Israel was clearly a victim of an act of war. Because Israeli forces
had withdrawn from Lebanon to the United Nations-sanctioned international
border, the usual Arab militant claims of "resistance to occupation" did not
hold. The IDF, while using significant firepower, was not using it
indiscriminately. Indeed, the Israelis used up some types of guided
munitions, so intent were they on limiting civilian losses. Lebanese
civilians were inadvertently and mistakenly killed and injured, but not
excessively by historical standards. The number of losses reported by
Lebanese authorities is subject to considerable doubt, as casualties
suffered by Hezbollah fighters and active supporters were not distinguished
in the total from actual civilians; all Hezbollah losses were classified as
civilian deaths.13
For Israel's critics or those suspicious of western military operations in
general, these were uncomfortable facts. Israel's operational response in
Lebanon appeared, prima facie, fully justified. Rather than allowing
themselves to be stymied, critics took up the claim of disproportion with
alacrity and little regard to traditional concepts of international law or
logic. In general, the more extreme critics argued that upon the death of
the first Lebanese civilian, Israel's response had become disproportionate
as only IDF soldiers fell in the Hezbollah attack, or that Israel's loss
(eight dead, two captured) entitled it only to a limited counterattack. More
measured opponents of the operation claimed that Israel's campaign was
insufficiently calibrated to the limited strength of its opponent,
considering the IDF's apparently overwhelming advantages in personnel,
weapons, and technology.
Israel's recent Gaza campaign immediately brought renewed calls of
disproportionate Israeli action, allegedly in violation of international
law. These claims gained much traction in the international media and
especially within transnational nongovernmental organizations, including the
United Nations. Many of those groups are suspicious of, or overtly hostile
to, any Israeli military action. As with the Lebanon war, Israel had a clear
causis belli, and indeed had acted with considerable-and some might say
unprecedented-restraint in response to constant and indiscriminate
cross-border rocket and mortar fire, openly and deliberately orchestrated by
the Hamas regime in Gaza.14 Moreover, though Gaza is densely populated,
improvements in Israeli guidance systems, intelligence collection, and
munitions, including small-diameter bombs, sharply reduced the legitimacy of
claims that the IDF acted without discrimination.15
"Disproportion" can be seen as the leading edge of an effort to
delegitimatize any action by powerful western nations against weaker
developing countries or nonstate actors. It is in the interest of the United
States to generally reject these claims, for should they gain further
acceptance, American military action and doctrines might be seriously
hindered in the future, with potentially grave repercussions.
The Law of War and Proportionality
The problem with proportionality as a law of war concept is twofold: It is
subject to misinterpretation by the international media, nongovernmental
organizations, and governments; and some of the most restrictive and
logically twisted interpretations of the doctrine have a legitimate
grounding in existing-albeit damaging-international law.
What the doctrine of proportionality does not do, contrary to its more
misinformed proponents, is reduce warfare to a series of tit-for-tat
attacks.
"Disproportion" can be seen as the edge of an effort to delegitimatize
action by western nations against weaker countries or nonstate actors.
Israel was castigated for responding to indiscriminate rocket fire with
precision air attacks, as if a "proportional" response-indiscriminate
Israeli rocket fire-would be preferable and legal. After the assassination
of Archduke Ferdinand in 1914 the doctrine of proportionality did not limit
Austria-Hungary to counterregicide in response. The United States was not
limited to striking a Japanese naval base in response to the attack on Pearl
Harbor. In sum, the doctrine of proportionality has little relevance to
causis belli or jus ad bellum (the justice of the cause under traditional
just war theory). Nor does the doctrine limit in a legal sense the
legitimate military objectives a belligerent may choose to pursue; it
regulates in part, to the extent it limits anything, the manner in which
military objectives are pursued, and this is certainly the sense in which it
is used in modern treaties.16
The modern doctrine of proportionality appears as a law of war concept in
the 1907 Hague Conventions wherein belligerents are forbidden to seize or
destroy enemy property unless "imperatively demanded by the necessities of
war."17 Proportionality is thus implied, but not delineated. The Geneva
Conventions of 1949, although they prohibit destruction of enemy property by
an occupying power except where destruction is "absolutely necessary for
military operations," do not specifically discuss proportionality either.18
As noted, the Army's Law of Land Warfare manual, FM 27-10, interprets these
provisions in Chapter 2, Paragraph 41, distilling the prohibitions into an
order not to attack objectives unless it will not cause "probable losses in
lives and damage disproportionate to the military advantages anticipated."
This elaborated formulation is in accordance with the 1977 Protocols to the
Geneva Conventions, to which neither the United States nor Israel is a
contracting party. The Protocols define as "indiscriminate" and "prohibited"
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."19
The changes specified in the 1977 Protocols are subtle but important.
Disproportionate attacks are defined as indiscriminate, so that even a
belligerent who uses discriminating but "excessive" force will have
violated the provision. Losses which are merely "incidental" are defined as
a war crime, and the list of incidentals is spelled out and by implication
broadened. But a 1987 commentary on the Protocols published by the
International Committee of the Red Cross was the first to link
proportionality with the 1977 provisions. The commentary notes that "the
disproportion between losses and damages caused and the military advantages
anticipated raises a delicate problem; in some situations there will be no
room for doubt 58 Parameters
while in other situations there may be reason for hesitation. In such
situation the interests of the civilian population should prevail . . . ."20
Thus, the benefit of the doubt may never go to the belligerent who is
seeking a military advantage. But the commentary then takes this
formulation one step further, specifying that "the Protocol does not provide
any justification for attacks which cause extensive civilian losses or
damages. Incidental losses and damages should never be extensive" even if
"the military advantage at stake is of great importance."21
Loosely interpreted, the 1977 Protocols effectively ban any attack that may
cause extensive civilian losses or damages, even if the attacker uses
discrimination and the enemy hides its forces and assets within a civilian
population. Thus, a group like Hamas, simply by taking cover among
civilians, might render itself immune from attack under the rules of
proportionality as defined by the Protocols.
To be sure, serious scholars and jurists do not necessarily interpret the
concept so broadly, and as previously noted, neither the United States nor
Israel signed the 1977 Protocols (though both nations basically seek to
abide by them). The standard interpretation requires simply that a
belligerent use only the amount of force necessary to achieve a military
objective, or use only that amount of force required within the bounds of
military necessity-which is basically what the Hague and 1949 Geneva
Conventions provide. Furthermore, no reasonable interpretation of the
doctrine says that a nation, having been given just cause to go to war, has
to limit its objectives to the same level as the provocation. Such an
approach does not attempt to define military necessity; presumably the
leadership of the belligerent nations will reasonably set a level of
necessity. Still, the fact that broad and limiting interpretations of the
doctrine can be broached within the 1977 Protocols is cause for serious
concern.
Proportionality as a Military Doctrine
It does not make sense to waste military effort by applying more force than
appears necessary to reach military objectives at an acceptable cost. Given
that caveat, the doctrine of proportionality is sensible, but it is also
close to self-regulating. Rational and effective military organizations
recognize proportionality not only as part of the laws of war, but also as
part of their own combat doctrine-except it is called economy of force. The
idea surely began in antiquity but was articulated by Clausewitz in modern
times as sensibly limiting a military operation to as few principal
undertakings as possible.22 Economy of force is defined in US Army Field
Manual 3-0, Operations, and requires that commanders "allocate minimum
essential combat power to secondary efforts . . . . Commanders allocate
only the minimum combat power necessary to shaping and sustaining operations
so they can mass combat power for the decisive operations."23
The British and Commonwealth armies call this principle economy of effort.
The Soviet Union defined it as adapting the end to the means. However
identified, the principle holds that military forces should concentrate
effort in the most rational, economic, and limited way, to free up resources
for other undertakings. As such, it makes little military sense to use force
or effort out of proportion to the objective sought, or beyond military
necessity. This holds true with or without the prescriptions of the laws of
war. Rather, economy of force can be seen as a real-life application of
utilitarian ethics as defined by the nineteenth-century philosopher Henry
Sidgwick, who described the modern principle of proportionality as fighting
"with as little mischief as is likely to be effective."24
Armies occasionally violate this principle, but do so to their own
disadvantage. When they do it is usually in efforts that turn out to be
mistakes. For example, the Allied carpet-bombing of Caen during the Normandy
campaign was largely counterproductive. This air attack did little damage
to the Germans, while creating a rubble-clogged defensive obstacle that
Allied units had to overcome once they entered the bombed zone. The Allied
air effort devoted to destroying Caen lacked discrimination and might have
been more effectively and economically applied elsewhere. Given the
technology available, the strength and tenacity of the German forces, and
the necessity to enlarge a dangerously shallow bridgehead, the bombing was
morally and militarily justifiable, if in fact wasteful and unfortunate. But
was it legally disproportionate? Is such an inquiry even useful?
Raising questions regarding the utility of proportionality doctrine does not
let nations that do act criminally off the hook. The Luftwaffe
carpet-bombed Stalingrad in a similar manner and faced similar
consequences, but the German bombing was deliberately indiscriminate and
designed to terrorize, as well as being wasteful of German air resources. It
is true that for the victims of such bombings, the intention of the
attackers makes little difference, but in terms of determining the legality
of actions, intention-the mental state of the actor-is fundamental. A
mistaken allocation of force is not a crime. A deliberate effort to
terrorize the innocent is.
Proportionality in Lebanon, Kosovo, Cassino, and Gaza
In Lebanon in 2006 and Gaza in 2008-09, the IDF pursued modern air warfare
tactics and targeting similar to that used by US and NATO forces during
their earlier operations in Kosovo, Afghanistan, and Iraq. Indeed, some
commentators at the time opined that the Israelis were attempting to
duplicate the 1999 Kosovo campaign-where there were few if any claims of
disproportionate use of force despite the Serbian military's limited power
and the infliction of hundreds of civilian casualties.25 At Cassino in 1944,
massive Allied airpower was employed for little tactical or operational
gain. It is worthwhile to examine these historical examples to determine
whether any determination of "proportionality" is truly accurate.
Israeli air attacks early in the Lebanon war, which drew almost immediate
condemnation as disproportionate, can be roughly divided into two
categories: attacks on Hezbollah rocket launchers and command centers and
attacks against Lebanese civilian infrastructure targets. The direct
attacks against Hezbollah, even where civilian casualties occurred, were
fully justified militarily and not indiscriminate. Nor by any reasonable
understanding of the term could they be regarded as disproportionate. There
were occasional Israeli targeting errors, and some civilian losses were
suffered due to the placement of rocket launchers in populated areas. In
contrast, Hezbollah's rocket attacks were exclusively directed against
civilian Israeli targets. The IDF response is a clear example of justifiable
and reasonable military force used in self-defense.
Israel's strikes against Lebanese infrastructure targets are more
problematic. These attacks likely violated the military principle of economy
of force because they diverted resources from the main effort against
Hezbollah, just as the Allied bombardment of Caen drew air assets away from
more useful targets. Israel justified its attacks on the Beirut airport,
bridges, and transport hubs as attempts to prevent Hezbollah from spiriting
the captured Israeli soldiers out of Lebanon. Israeli attacks on
communication hubs and the Hezbollah television facilities also had military
justification in that they weakened the enemy to some degree. But Israel's
secondary motive in these infrastructure attacks was to pressure the
Lebanese government into bringing Hezbollah to heel. Because the attacks
actually had little prospect of preventing the removal of the soldiers, and
the Lebanese government had little ability to control Hezbollah, the IDF
wasted considerable resources on the infrastructure campaign with little or
nothing to show for it.Spring 2009 61
Did the infrastructure attacks violate the principle of proportionality?
They were certainly destructive and wasteful. But the fact that an attack
wastes military effort does not mean that it is disproportionate as a matter
of law. Military history is replete with examples of armies bringing
overwhelming and disproportionate force against enemies, and that approach
constituted a popular American post-Vietnam War doctrine closely identified
with General Colin Powell when he was Chairman of the Joint Chiefs of Staff.
After all, employing disproportionate force against an enemy is one of the
best ways to win a battle.
The Israeli bombing campaign in Lebanon closely mirrored NATO's action in
Kosovo, which was not generally criticized as disproportionate. At its
outset the Kosovo campaign had no greater likelihood of success than the IDF
campaign. The force used was greater than the opponent could muster,
infrastructure was intensively targeted, civilian casualties were equal to
or greater than in Lebanon, and the duration of the campaign was much longer
(78 days as compared to 30). Indeed, there is little to distinguish the two
campaigns, except that Kosovo ended in a NATO victory, while Lebanon may be
characterized as an Israeli defeat.
Arguably, the Israeli campaign in Lebanon saw the disproportionate use of
force, but not in the way commonly discussed. If Israel's use of force in
Lebanon was disproportionate in a military sense, it was disproportionately
weak. That is, considering the terrain, Hezbollah's prepared fortifications,
and the overall quality of Hezbollah guerrillas and equipment, the IDF
committed far too little force and firepower to have much hope of success.
Several recent studies bear out this thesis.26 The IDF underestimated the
extent and sophistication of Hezbollah fortifications, command and control
capabilities, logistics, and weaponry.27 In particular, Hezbollah's
advanced and diverse antitank missile arsenal, combined with elaborate
fortifications and tunnels, presented the IDF with a significant tactical
problem which it did not remedy throughout the course of the campaign.
Hezbollah's tactics were more similar to a conventional military defense
than-as commonly believed-an insurgency. The IDF, accustomed to years of
low-level counterinsurgency action against poorly armed and organized
Palestinian militias, found itself facing instead a dug-in and determined
enemy trained, equipped, and deployed to frustrate predictable Israeli
tactics.28
A historical example that closely models the problems Israel faced in
Lebanon is the Allied air-raid on the Monte Cassino Abbey in February 1944.
Like the Israelis in Lebanon, the Allies faced a difficult struggle against
a skilled and determined enemy entrenched in a mountain fastness. The
ancient abbey was a religious and historical structure protected under
international law and off-limits to attack, unless a belligerent used it for
military purposes. Allied officers convinced themselves that the Germans
were using the mountaintop monastery as an observation post. Such a purpose
made military sense and also seemed to be indicated by the fact that the
Germans ferociously defended the abbey's approaches. In reality, the Germans
did not put soldiers in the abbey. On 28 February, hundreds of Allied
bombers pulverized the complex, killing or injuring many civilians. After
the attack, German forces burrowed into the rubble, strengthening their
position.
The Allied attack violated the principle of economy of effort. It wasted
considerable resources on a target that did not contain enemy forces,
weakened the Allies' moral standing, and physically strengthened the German
position. Likewise, IDF attacks on Lebanon's infrastructure wasted effort,
killed or injured few enemy forces, and damaged Israel's moral case. The
overall result was a stronger Hezbollah.
In the 2008-09 Gaza campaign the IDF performed better, thanks to intensive
training for the operation and the availability of more sophisticated
weaponry. This success inevitably drew even more criticism that the
campaign was disproportionate. But the relationship between Israeli
tactical successes, including a dramatic reduction in casualties, would
argue that the IDF's use of force in Gaza bore a clear correlation to
military necessities. Under a proper analysis, Israel's level of force was
hardly disproportionate, but instead a textbook example of measured
application of force to achieve legitimate military benefits. That Israel
failed in its declared objective to stop Hamas rocket fire into southern
Israel is the product of a political decision to halt the offensive before
it achieved a decisive result.
In fact, none of the four historical examples discussed involved the use of
disproportionate force as a matter of law. Even when the Allies or the
Israelis made mistakes, as in Lebanon or Cassino, they reasonably believed
that their attacks abided by the principles of economy of effort and
proportionality. The force directed against the abbey at Cassino was
tremendous but not out of the ordinary according to the extremely violent
standards of World War II. If the bombing of Monte Cassino was
disproportionate, so were the Allied bombings of Caen, St. Lo, and countless
other Axis targets. Indeed, practically the entire Allied war effort would
have to be regarded as criminal. Israel's attacks on Lebanon's
infrastructure were substantial, but not worse than NATO's strikes against
Serbia during the Kosovo conflict in 1999. The only thing wrong with Israel's
strikes in Lebanon or various Allied bombings in World War II was their lack
of success. But we do not determine criminality based on outcome, but
intent. In these cases the Allies and Israelis made mistakes but did not
violate the law of proportionality.Spring 2009 63
Conclusion
The theory of proportionality is ambiguous, lacks useful precedent, and as a
practical matter, is nearly impossible to interpret and enforce. Effective
military organizations as a matter of course limit their use of force under
the doctrine of economy of force, meaning that a disproportionate attack on
an enemy is likely to be as harmful to the attacker as the victim. The
international community and media have a responsibility to use terminology
and principles correctly, not just because they seem to be convenient. In
the case of declaring military actions disproportionate, this has simply not
been the case.
Accusations of "disproportion," like those against the IDF, will almost
certainly be applied to American forces when domestic and international
opposition to US actions can find no other complaint. Yet it is apparent
that proportionality is not a useful yardstick for determining appropriate
levels of force. The principle of proportionality is so vague and difficult
to apply with any consistency, and so widely misunderstood, that the US
military should discard it. Instead, American authorities should simply take
the position that US doctrine proscribes use of force that is
indiscriminate, wasteful, excessive, or not necessary to achieving military
objectives. America's armed forces should openly acknowledge that they do
not abide by the principle of proportionality because it is so problematic.
Taking that position would not be a violation of existing law, as neither
the Hague Conventions nor the 1949 Geneva Conventions specifically refer to
"proportionality." The United States is not a signatory to the 1977 Geneva
Protocols, which do use the term (at least in the commentary). With respect
to customary international law or traditional just war theory, simply
declining to define American military action as "proportionate" would not
violate the spirit of law or theory. Because the prescriptions of each are
not specific in a statutory sense, the recommended doctrinal stance should
suffice. Proportionality as a law of war concept for good reason has had
limited applicability and usefulness during the last century. It deserves to
be disposed of entirely.
===
Jonathan F. Keiler, a former Army Judge Advocate General Corps officer, is a
world history and art history teacher in Prince George's County, Maryland.
He is a graduate of Salisbury University and Washington and Lee University.
NOTES
1. Examples in the media of claims of disproportionate force in Iraq can be
found in Tony Kevin, "Falluja-All the Makings of a War Crime," Sidney
Morning Herald, 9 November 2004; and David DeCosse, "Lost in the 'Logic of
War,'" Santa Clara University, Markkula Center for Applied Ethics,
http://www.scu.edu/ethics/publications/ethicalperspectives/logic.html.
2. Terence Hunt, "Bush Defends Israel's Attacks in Lebanon," Associated
Press, 13 July 2006; Ned Temko, Conal Urquhart, and Peter Beaumont, "British
Split with Bush as Israeli Tanks Roll in," The Observer, 23 July 2006.
3. Arshad Mohammed, "Rice Tells Olmert She Is Concerned About Gaza
Civilians," Reuters, 27 February 64 Parameters
2008.
4. Jonathan F. Keiler, "Who Won the Battle of Fallujah?" Proceedings,
January 2005.
5. Department of the Army, Field Manual 27-10, The Law of Land Warfare
(Washington: Headquarters Department of the Army, 1956), Chapter 2,
Paragraph 41.
6. Ibid., Chapter 2, Paragraph 40.
7. See, e.g., Eugene Robinson, "It's Disproportionate . . ." The Washington
Post, 25 July 2006, for a typical example of how the doctrine is
mangled-the ellipses in the title say it all. Robinson is critical of the
IDF for what he sees as disproportionate use of force. See also Ruth R.
Wisse, "Now, About that 'Proportionality,'" Commentary, March 2009, wherein
the author, a Harvard professor, also misapplies the doctrine in defending
IDF actions.
8. Michael Walzer, "On Proportionality," The New Republic, 8 January 2009.
9. "EU: Israel Uses 'Disproportionate Force' in Lebanon," Deutsche Welle, 14
July 2006.
10. "Chirac: Israeli Strikes in Lebanon Disproportionate," Voice of America,
14 July 2006,
http://www.voanews.com/english/archive/2006-07/2006-07-14-voa19.cfm.
11. Warren Hoge, "Annan Urges Immediate Halt to the Fighting in Lebanon,"
The New York Times, 21 July 2006, A9.
12. David Fickling, "Amnesty Report Accuses Israel of War Crimes,"
Guardian.co.uk, 23 August 2006.
13. Anthony H. Cordesman, Lessons of the 2006 Israeli-Hezbollah War
(Washington: CSIS Press, 2007), 87.
14. No historical precedent comes readily to mind where a sovereign nation,
overwhelmingly more powerful and capable than its belligerent neighbor,
indefinitely absorbed such assaults without a military response.
15. Steven Erlanger, "A Gaza War Full of Traps and Trickery," The New York
Times, 11 January 2009, A1.
16. Under traditional just war theory, one of the elements of jus ad bellum
(governing the justice as opposed to the conduct of war) is probability of
success, of which proportionality is arguably one element. Traditional just
war theory dating back to philosophers such as St. Thomas Aquinas,
Franscisco Suarez, and Hugo Grotius generally stresses that war should be
waged in moderation and good faith.
17. Regulations Concerning the Laws and Customs of War on Land (The Hague:
18 October 1907), Article 23.
18. Geneva Convention Relative to the Protection of Civilian Persons in Time
of War (Geneva: 12 August 1949), Article 53.
19. Protocol Additional to the Geneva Conventions of 12 August 1949, and
Relating to the Protection of Victims of International Armed Conflicts
(Geneva: 8 June 1977), Article 51.
20. Claude Pilloud, Yves Sandoz, Christophe Swinarski, and Bruno Zimmermann,
eds., Commentary on the Additional Protocols of 8 June 1977 to the Geneva
Conventions of 12 August 1949 (Geneva: Martinus Nijhoff Publishers, 1987),
624.
21. Ibid.
22. Carl von Clausewitz, On War, Michael Howard and Peter Paret, eds. and
trans. (Princeton, N.J.: Princeton Univ. Press, 1976).
23. Department of the Army, Field Manual 3-0, Operations (Washington:
Headquarters Department of the Army, 2008), A-2.
24. Henry Sidgwick, The Elements of Politics,
http://www.laits.utexas.edu/poltheory/sidgwick/elempol/index.html, Chapter
XVI, Section 2; see also Michael Walzer, Just and Unjust Wars (New York:
Basic Books, 1977), 130, wherein Walzer proposes that Sidgwick effectively
intended to impose a principle of economy of force in relation to waging
proportional war.
25. For a discussion see Nick Fotion and Bruno Coppieters, eds., Moral
Constraints on War: Principles and Cases (New York: Rowman and Littlefield,
2008), 209-11. Interestingly, although European governments and media now
almost reflexively call most Israeli air action disproportionate, they did
not claim that almost identical tactics in Kosovo were disproportionate.
This disparity not only reflects the fact that in Kosovo the air forces of
European Union nations were (with the United States) doing the bombing, but
also that the idea of proportionality had not yet come into vogue.
26. See Cordesman; Stephen D. Biddle and Jeffrey A. Friedman, The 2006
Lebanon Campaign and the Future of Warfare: Implications for Army and
Defense Policy (Carlisle, Pa.: US Army War College, Strategic Studies
Institute, 2008); and Matt M. Matthews, We Were Caught Unprepared: The 2006
Hezbollah-Israeli War (Fort Leavenworth, Kans.: Combat Studies Institute
Press, 2008).
27. Matthews, 19-21.
28. Ibid.
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