In some respects it’s quite noticeable that there hasn’t been that much legal commentary on Israel’s actions. There have been bits here and there (and more has come out recently, which I’ll refer to later on) but nothing especially in-depth. One thing that has been pretty ubiquitous though has been a generalised sense that Israel’s actions have been ‘disproportionate’ and have – in some way – breached international law. In theory this might point to the progressive role which international law could play in criticising Israel’s actions, but actually, when we delve a little deeper, I think it shows that international law is – at best – useless.
So – proportionality. Proportionality has lots of different meanings in legal discourse, but for our purposes there are two ways in which it applies. To begin with there is proportionality’s role in the jud ad bellum – the law which regulates when it is permissible for a state to use force. Basically, in order for an act to ‘count’ as self-defence it must be necessary and proportionate. Now, this is probably the way that ‘proportionality’ criticisms can have most traction. But it is really quite difficult to argue here. That’s because – in recent times – there has been a lot of talk about what sort of force is proportionate to an accumulation of smaller attacks. The consensus is that the force deployed has to be proportionate to the threat of the attacks – not just to the number of lives lost on one side – so Israel’s response doesn’t have to be proportionate to the number of people killed in Israel, but to its objective of stopping the rocket attacks.
The particular crux of this objection becomes even more powerful in the light of jus in bello, the law that regulates the use of force once a conflict has begun. Typically what is invoked here is Additional Protocol I of the Geneva Convention; this is the strongest widely accepted international humanitarian law treaty and much of its content has achieved the status of custom, but (I’m pretty sure) Israel is no longer a party to it, with the Supreme Court being ambivalent as to its status. However, we won’t go into these questions but will instead look at this particular treaty on its merits. The crux of the ‘proportionality’ issue (although proportionality is never named as such is Article 57; the vital points to note here are that (57(2)):
2. With respect to attacks, the following precautions shall be taken:2(a)(iii) deals with proportionality. What is vital to note here is that the proportionality calculus is not between lives lost on either side; incidental civilian loss has to be proportionate with the anticipated military advantage. And here we come to the real problem with proportionality calculi. In order for proportionality to work it is necessary that the two things that are being compared are commensurable. But how can we possibly say if loss of life is ‘excessive’ in relation to an anticipated military advantage? The two cannot be reduced to some similar ‘substance’ that could be compared, and even if they could there is no standard which says ‘how many lives lost’ is excessive and how many aren’t. The only thing that the test can do in practice is compare different attacks (would this one kill more than the other), but here the law shows a massive degree of deference to commanders.
(a) those who plan or decide upon attack shall:
(i) do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects … but are military objectives …
(ii) take all feasible precautions in the choice and methods of attack with a view to avoiding and in any event to minimizing incidental loss of civilian life, injury to civilians and damage to civilian objects
(iii) refrain from deciding to launch any 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
We can immediately see how this is problematic in relation to Gaza. The objective – stopping the rocket attacks – cannot be compared to the number of civilian lives lost and it is difficult to think of a less destructive way that this could be achieved. I think that the wild difference in opinions (all of which is articulated under the rubric of ‘proportionality’) points to the emptiness of the test. An objection that might be raised is that some of these opinions are just cynically deploying international law, but have their own agenda. But the problems with this approach are obvious, firstly, international relations is absolutely chock-a-block with people who have agendas – everyone has one – so using international law with an agenda is a pointless objection; secondly, it is precisely because divergent agendas can be expressed through international law that we can’t rely on it to support our own agenda.
This is exacerbated by the fact that ‘military objectives’ are pretty widely drawn in IHL. Under Article 52(2) of Additional Protocol I, military objectives are defined as:
[T]hose objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.As is obvious to anyone reading this, this definition includes ‘dual use’ targets, targets that would normally be ‘civilian objects’ but which are used for a military purpose – also, this definition is sufficiently broad to include power stations, bridges etc., proportionality is what is supposed to ‘limit’ this. In a situation such as that in Gaza this is massively problematic because on top of the normal problems of an industrial economy (whereby vital civilian amenities serve the military) the rocket attacks come from dispersed, diverse locations. Now whilst there is a presumption that civilian objects are not military ones (in situations of doubt) – the particular structure of the law tends to mean that in Israel can – with some legal justification – claim a wide range of targets as military objectives.
Over at Crooked Timber Daniel has mounted a valiant defence of the law, arguing that the requirements of a concrete and definite military advantage serve to limit what can be done. In practice I don’t think this actually works. State practice in this area has supported a pretty broad reading of this (indeed Daniel’s reading doesn’t ever seem to have been followed). Furthermore, I assume Israel would claim that its individual attacks were all directed towards specific targets which their intelligence had shown contributed towards the rocket activity.
Note, that the point here is not to say that international law is unambiguously on the side of Israel. What I am saying is that the tests are so open, so empty that the particular model of violence that Israel has pursued – the sustained bombardment of a fairly defenceless population – is possible to justify in legal language. The very fact that legal argument is contestable in this respect points to the fact that we really ought to steer clear of condemning Israeli acts as criminal, disproportionate etc., as Israel’s defenders can just muddy the waters by making their case. We should criticise the attacks for what they are – a brutal massacre of an unruly population driven by colonial logic – and criticise the law for being so equivocal.
I think this deserves a bit more consideration (particularly on the progressive potential of indeterminacy), so I may need to write a little more on that.
One really important issue here that I haven’t really discussed is the way that legal claims de-contextualise the conflict. I think its vitally important that we grasp the particular imperial/colonial relationships that gave rise to this conflict. Moreover, there’s a sense in which ‘disproportionate’ violence (taken here to mean that Israeli lives are treated as worth more than Palestinian lives) is a structural feature of Zionism. Any state that is based on the dispossession and continuing oppression of the previous inhabitants of the land has to devalue these inhabitants. This is what produces statements attributing all responsibility to Hamas, this is what treats all adult male Palestinians as non-civilians. Even if IHL had more traction, it couldn’t possibly touch these deep, structural causes.