Wednesday, December 19, 2012

Proportionality and what it's not - The moral and legal right to use force

Allen Z. Hertz..
Op-Ed Contributor/JPost..
18 December '12..

Now more than ever – international law is akin to “an ongoing discussion about rights” in which every government and NGO has its lawyers, and every law professor an opinion. And today, there is certainly lots of “manufacturing” of alleged new norms of public international law.

For example, the “proportionality” doctrine is regularly distorted and willfully misrepresented.

The doctrine of proportionality does not require some sort of a balance between Israel and Hamas dead, or some equivalence between the deeds of Hamas and those of the Israel government.

Rather, in the context of international humanitarian law, there must be proportionality between what the Israel government actually does and what is reasonably required to prevent the firing of Hamas rockets at Israel civilians and soldiers.

Specifically, if the Israel government would be reasonably able to prevent the firing of those Hamas rockets via measures that fall well short of using nuclear weapons to obliterate Gaza, then the Israel government is legally obliged to use those less drastic means that are likely to be kinder to the civilians in Gaza.

However, international law certainly does not require the Israel government to sit back and accept the firing of rockets at Israel civilians and soldiers, just because measures to prevent that firing would likely result in some collateral civilian injury and death in Gaza. And here the reasoning is obvious: The Israel government has to choose between (A) some Israel deaths (civilian and military) resulting from Hamas missiles hitting Israel; and (B) some Hamas deaths (civilian and military) from Israel preventive measures. In this context, the Israel government has to opt for (B) to prevent (A). Any other decision would irrationally privilege the lives of Muslim Arabs in Gaza over those of civilians and soldiers in Israel.

And here the ancient rabbis would probably have agreed, because morally it is better for the wicked to die than for the innocent to perish.

And make no mistake: From a moral perspective, Hamas tends to implicate the adult population of Gaza in its war crimes.

The civilian adult population of Gaza is probably directly or indirectly to some degree morally complicit in the willful aggression of Hamas, which the Muslim Arabs of Gaza clearly supported in the 2006 Palestinian elections, and which they probably continue to back even today. For example, pollsters tell us that Gaza’s adult population specifically endorses the notion that rockets be targeted at Israel civilians, which is a flagrant war crime.

By contrast, there is simply no rule of either morality or law saying that a state is precluded from using force in self-defense, which is truly a fundamental principle of modern public international law. The state has a moral and legal right to use force in self-defense, even though that recourse to force is likely to cause some collateral civilian injury and death. And never forget that, with respect to Gaza, the Israel government acts not by way of retaliation or punishment, but for prevention, i.e. to stop the launching of the Hamas missiles and thus to prevent more Israel civilians and soldiers from being killed.

Nor can the Hamas war crime of intentionally targeting Israel civilians be justified by an alleged Palestinian right of “resistance,” i.e. an alleged right to wage a war of national liberation against Israel.

Even if we accept the false hypothesis of such a Palestinian right to wage a decolonization war, that right to wage a war of national liberation would not extend to the intentional, indiscriminate targeting of Israel’s civilian population, which would still remain a war crime.

But, turning from hypothesis to history – Israel is not colonial in character. Of all extant Peoples, the Jewish People has the strongest claim to be aboriginal to the land between the Jordan River and the Mediterranean Sea, where some Jews have lived in each and every year since the ethnogenesis of the self-identified “Jewish” People in the 6th century BCE.

Around a half-century ago, a Muslim Arab population generally chose to self-identify as “the Palestinian People” for the first time. The self-determination rights of this newborn Palestinian People must now be peacefully reconciled with the aboriginal, treaty and self-determination rights of the much older Jewish People. For this reason, the newly self-identified Palestinian People lacks a right to wage a decolonization war against the Jewish People, whose presence in the Jewish aboriginal homeland is both moral and lawful.


The writer was senior adviser in the Privy Council Office serving Canada’s prime minister and the federal cabinet. He studied European history and languages at McGill University (BA) and then East European and Ottoman history at Columbia University (MA, PhD).

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