Bernie Sanders’ Criticism Of Israel Shows He Has No Idea What Proportionality Means
Many Others Are Just As Clueless
In 2014, Israel launched Operation Protective Edge in response to rocket attacks from Hamas in the Gaza Strip. A seven-week war ensued that saw casualties on both the Israeli side and the Palestinian side. Reports vary as to the number of dead and wounded on each side, but many reports put the number of dead Israelis at 71 (5 of which were civilians) and the number of dead Palestinians somewhere near 2,100. Quite debatable is the number of Palestinian civilian casualties, as most reports rely on the Hamas-run Gazan Health Ministry’s reports of civilian casualties using a questionable definition of a “civilian.”
Hamas claims that approximately 70% of the Palestinian dead were civilians, while Israeli reports put the percentage of Palestinian civilians at around 35%. Israel has shown that several of the “civilians” reported dead by Hamas were in fact militants, suggesting that Hamas clearly doctored its numbers. As an aside, it remains quite curious that, despite the war being one of the most televised and reported conflicts in history, there exists virtually no video footage of any uniformed Hamas fighters during the conflict and all televised Hamas interviews occurred in hospitals.
Israel took precautionary measures to avoid civilian casualties that are unprecedented in the history of military warfare. In fact, The High-Level International Military Group on the Gaza Conflict in 2014, a group of top former military commanders from Western nations, including the esteemed British Colonel Richard Kemp (ret), opined that Israel not only exceeded all Western standards of warfare, but also went too far in taking precautionary measures to the detriment of its troops and mission. Despite these extraordinary measures, there has been no shortage of those who claimed Israel’s actions were “disproportionate” in violation of “international law” or the “laws of war.” Most recently, U.S. Presidential candidate Bernie Sanders added his voice to this sad chorus by claiming that Israel acted disproportionately. Notably absent in all of this criticism is any recognition that Israel was facing an enemy that threw all the norms and laws of warfare out the window.
Was Israel’s response disproportionate? I think it was. -U.S. Senator and Democratic Presidential Candidate Bernie Sanders
While it is easy enough for critics of Israel, such as Bernie Sanders, to throw out media buzzwords such as “disproportionate” and “Geneva Conventions,” it is clear that such critics have no knowledge of the applicable laws. What’s worse, even if one assumes that such critics are not talking about the international law of war definition of “proportionality,” the logic of the argument becomes even more absurd. It is perfectly acceptable to criticize Israel, but such criticism should be warranted and based in reason and facts.
Invariably, the “evidence” cited by those who cry “disproportionality” is the disparate number of casualties on each side, as if such disparity is conclusive of “war crimes.” If casualty count were the measure of legal and moral warfare, the U.S. and Great Britain would necessarily be considered the war criminals of World War II, as the Axis powers incurred far greater casualties than these countries. Of course, the absurdity of that thought evidences the more complex calculations that must be done when judging warfare, beyond mere numbers. Citing the number of casualties from Operation Protective Edge to support claims of “disproportionality” immediately indicates that the one citing the numbers does not understand even the basics of the international law of war.
The concept of “proportionality” in war comes from the Additional Protocol I to the 1977 Geneva Conventions (Rule 14) and has been incorporated into the national law of many modern nations. Rule 14 provides that no actor may launch “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.”
It is important to note several things about this rule:
- The rule does not involve any comparison between actual casualties on either side of the conflict.
- The rule does not prohibit civilian casualties and damage to civilian objects. On the contrary, it recognizes that such casualties and damage do, unfortunately, occur.
- The rule provides for a balancing act — civilian casualties is acceptable (although to be minimized) as long the expected military benefit from the action outweigh the risk of the civilian casualties and damage.
- Perhaps most importantly, the analysis of this rule is to be done at the time of the contemplated action based on the information available at the time, not in hindsight based on after-discovered information.
To be clear, the killing of a civilian, while undesirable, is not illegal, so long as the civilian is not intentionally targeted. A military should, of course, do its best, within reason, to minimize civilian casualties. As with many issues in law, Rule 14 provides for a facts and circumstances test with no bright-line rules. For example, there is no absolute number of civilian casualties that is or is not acceptable as a result of a contemplated action; rather, it depends on the situation at hand. Common sense would dictate the number of potential casualties that would be “acceptable” as a result of a military bombing one anti-aircraft gun would not be as great as the number of potential casualties that would be “acceptable” as a result of a military bombing an enemy’s main headquarters or the silo for an intercontinental ballistic missile.
Rule 14 provides that no actor may launch 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.
I do not claim to be an expert on either international law or military matters; however, it would seem that many of the commenters claiming “disproportionality” are no experts either. Israel has some of the most trained and experienced military personnel and some of the best intelligence information in the world, and presumably this experience and intelligence informs their military decisions. The Israeli military, in each action, must determine 1) the military importance of a target, such as the threat it causes and the number of lives it could save by neutralizing the threat, and 2) the risk of civilian casualties in taking action to neutralize such threat. Such determinations must be made based on all available information at the time of the proposed action, and one cannot expect after-discovered information to retroactively affect such determinations.
I would venture to guess that most of the commentators who cry “disproportionality” cannot even name more than one city in either Israel or the Palestinian territories. It is safe to say that these same commentators do not have the knowledge of the people, geography, military tactics and technology and threats on the ground to make the proper determination of whether a military action is proportionate or not, let alone do they have the specific intelligence that is gathered for each particular action. It seems impossible to me that these individuals feel that they can make determinations of proportionality of military actions from the comfort of their own homes hundreds or thousands of miles away, often in very safe countries, based on 30 second snippets of news from the media airing after the action has been taken.
The disparity of knowledge between outsiders and the military commanders involved in war should necessarily result in deference to the judgement of the military commanders.
The disparity of knowledge between outsiders and the military commanders and operators involved in war should necessarily result in deference to the judgement of the military personnel. The deference is even more warranted when the actor is Israel, who, in the eyes of Western military experts, takes unprecedented measures to minimize and avoid civilian casualties. Never in the history of warfare has a military taken actions such as distributing leaflets, texting and calling enemy populations to warn them of impending military actions, all while battling an enemy with such a depraved heart as to use schools, mosques, hospitals and private homes as command bases and rocket launch sites surrounded by people coerced into serving as human shields.
So, again, I would posit that anyone citing casualties on either side as evidence of “disproportionality” has no understanding of international law of war. Let’s suppose, then, that some are speaking in terms of a non-legal definition of “proportionality.” If you believe that the actions of Israel in Operation Protective Edge were “disproportionate” in a sense other than according to the legal definition, then you must believe that Israel’s campaign was disproportionate because either (1) the campaign’s actions were disproportionate or (2) the campaign’s results were disproportionate. Perhaps you believe both. Let’s analyze the consequences of each such viewpoint.
Disproportionality of Actions: If you suggest that Israel’s campaign was disproportionate in the actions taken by the Israeli military, then your focus is on the action, not the result of those actions. For you, the disproportionality comes from the disparity between Israel, with its advanced, well-funded and well-trained military, and an ill-equipped, ill-trained, depraved heart terrorist enemy. According to this viewpoint, whether a fist is met with a fist or a gun is met with a gun, such a fight is fair. If you care about actions taken and not results, then, presumably, you would have no problem with a tit-for-tat war. If Israel put down its precision weaponry and simply lobbed thousands of dummy rockets and missiles at the populated centers of the Gaza Strip, Israel’s actions would be completely proportionate (in fact, identical) to the tactics employed by Hamas. Presumably, then, because the actions taken by each side were on par with each other, you would have no problem with the results of such warfare, even if it would have likely resulted in a Palestinian casualty rate orders of magnitude higher that actually sustained. I can’t imagine one would rather see higher Palestinian casualties in order for it to be a “fair fight.”
Proportionality of Results: If you suggest that Israel’s campaign was disproportionate in the results caused by the Israeli military, then your focus is on the result and not the actions taken. I would guess that most of you who cite the lopsided casualty rates as “evidence” of “disproportionality” are in this camp. If you are in this camp then, presumably, you have no problem with the methods of warfare used by Israel as long as there is parity in the casualties on either side. The natural conclusion of this stance is that you would have no problem with Israel’s tactics and actions at all, provided that Israel shut down its Iron Dome and similar defenses protecting the Israeli population; as long as the casualty rates are the same, the tactics don’t matter. I can’t imagine one would rather see higher Israeli casualties in order for it to be a “fair fight.”
Please, tell me, from the comfort of your own home, how Israel should defend itself against an existential threat?
So, if you are one of the critics chastising Israel for its “disproportionate” war, my question to you is, “Which route should Israel take during its next conflict?” Should Israel just lob thousands of dummy rockets indiscriminately into Gaza, so as to act proportionately, or should Israel deactivate its defenses and let its people die so as to result in its casualties staying in line with those of the Palestinians? Any rational person would recognize that neither route is an option. If you disagree with me, please, tell me, from the comfort of your own home, how Israel should defend itself against an existential threat?
Originally published at zionistpress.com on April 25, 2016.