David H. Levitt
David H. Levitt

Enough With Misuse of “Disproportionate” – Understanding Laws of Armed Conflict

Every time Israel is attacked and defends itself – and the recent eleven day battle between Hamas and Israel is the latest example of it – politicians, pundits, and anti-Zionists assert that Israel (and somehow only Israel despite the overwhelming evidence against Hamas) has committed “war crimes.” And the most oft-used basis for this claim is that Israel’s use of force is “disproportionate.” Ignorant television “comedy” show hosts like John Oliver and Trevor Noah recently asserted this on their shows, using as their virtually sole basis that Israel is stronger and that the number of casualties among the Palestinians is higher than that among Israelis.

Many have written about the manifest fallacies and bias of these commentators and others like them, pointing out that Hamas was the party that started firing rockets, that Hamas deliberately commits the double war crimes of using human shields and intentionally firing on civilian population centres with the express aim of killing and maiming civilians (and putting shrapnel in its rockets designed to maximize just that), that Israel spends its money on defensive measures like bomb shelters and Iron Dome to protect its civilians while Hamas spends its money on rockets and attack tunnels – and on and on. These are all true and well-documented – none are subject to legitimate debate.

But let’s take on the despicable blood libel of Oliver, Noah, and others: that Israel’s response constitutes a war crime because it was disproportionate. While there are many provisions of international law regarding safeguarding civilians during a conflict, it is this particular one, above all others, that is used most to attack Israel’s conduct. One would think that Israel’s critics would at least read these provisions before making such very public attacks, but it is sadly and inexcusably evident that they did not.

The Law of Armed Conflict (“LOAC”) absolutely does NOT prohibit civilian casualties, nor does it use comparison of the number of casualties in determining violations. Instead – and this is confirmed by virtually every authority on the subject (e.g., the Geneva Convention, the International Red Cross, the United States Army Judge Advocate General, and more) – international law provides that military decision makers must engage in a balancing test when there is a risk of civilian casualties.

All of the authorities cite the same basic principle, in similar language.

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, Article 51, Paragraph 5(b) (https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=4BEBD9920AE0AEAEC12563CD0051DC9E), prohibits “indiscriminate” attacks, and classifies an attack as indiscriminate when it “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.” (emphasis added).

Law of Armed Conflict Deskbook, International and Operational Law Department, United States Army Judge Advocate General’s Legal Center and School, Fifth Edition, p. 35, fn 9 (https://www.loc.gov/rr/frd/Military_Law/pdf/LOAC-Deskbook-2015.pdf): “The proportionality analysis in targeting is a balancing test to ensure that the civilian loss is not excessive in relation to the concrete and direct military advantage anticipated.” (emphasis added)

Introduction to the Law of Armed Conflict (LOAC), Geneva Call, p. 17, “Soldier’s Rules for Non-International Armed Conflict,” Paragraph 2 (https://www.genevacall.org/wp-content/uploads/dlm_uploads/2013/11/The-Law-of-Armed-Conflict.pdf): “When engaging military objectives, ensure that expected collateral damage is not excessive to the expected military advantage.” (emphasis added). Also notable, in light of Hamas’s tactic of hiding military objects among civilian populations and in civilian buildings like schools, mosques, and hospitals, see p. 32: “Note: Civilian objects lose their protection when used for military purposes.”

Not one of these – or any other source – determines “proportionality” by comparing casualties nor by comparing the offensive or defensive capabilities of the respective participants. None suggest that a superior army with better resources has greater obligations in protecting against civilian casualties than a poorly equipped militant, although the ability to avoid civilian casualties is one part of the balancing test. Indeed, one very detailed article discussing the broader question of war crimes (or not) by both Hamas and Israel in the 2014 conflict, Alan Baker’s “The Legal War: Hamas’ Crimes against Humanity and Israel’s Right to Self-Defense” (https://jcpa.org/the-gaza-war-2014/legal-aspects-hamas-war-on-israel/), includes this important statement:

Perhaps one of the most reprehensible practices of the international media is the so-called “body-count” comparison, and the sad conclusion that disproportionality is exemplified by the fact that more Palestinians were killed than Israelis. The absurd assumption that this comparison makes is that more Israeli casualties would be preferable in order to “even-out” the count. Israel’s Iron Dome missile defense system, which has prevented thousands of potential Israeli civilian casualties from Hamas rockets, is blamed as the cause of this disparity in casualties.

Clearly, Israel cannot be held responsible for such an equation. As in any armed conflict, and especially in light of the circumstances of the 2014 Gaza war, civilians are tragically killed and injured. Unlike Hamas, Israel does not have a policy of deliberately targeting civilians, but regrettably, whether due to the fact that Hamas deliberately exposes its civilians to shield targets, or whether due to the occasional human or targeting error or inaccurate mapping, civilians are casualties.

Contrary to the entirely unsupportable opinions of some with large public soap boxes, international law does NOT require that all wars and battles be fought to a tie; parties to a conflict are legally allowed to seek to win it. The issue, rather, is how any particular battlefield action by Israel compared to the expected military advantage, NOT the out-of-context risks to civilians created, after all, by Hamas itself (and the sources cited above all explain how Hamas’s actions, not Israel’s, constitute war crimes).

But not one of Israel’s accusers even try to perform this analysis as required by international law. Not one of them point to any particular Israeli action that did not seek a “concrete and direct military advantage,” whether that was firing back at the location from which rockets had been launched at Israel moments earlier or attacking buildings and tunnels from which Hamas operated its military command or stored its weapons.

Enough is enough. It is high time for ignoramuses like John Oliver and Trevor Noah to be called out on their lack of knowledge. They may have a First Amendment right to believe and say whatever they want, but that is not an excuse for their irresponsibility. Some have said that they would be happier if there were more Israeli casualties, to balance out the equation – in their warped and indefensibly incorrect view of “proportionality.” Others have suggested that perhaps they think that “proportionality” means that Israel should have simply launched 4,000 unguided rockets at Gaza population centers – that then Oliver and Noah would believe that, since both sides took the same actions, the conflict was “proportional.” Merely stating these absurd propositions demonstrates the intellectual and moral bankruptcy of Oliver and Noah.

One of my favorite episodes of the original Star Trek series was called “The Savage Curtain.” Kirk and Spock are transported to a planet where the rock-like aliens insist on a battle of “good and evil” between the Federation officers (along with their heroes, Abraham Lincoln and Vulcan Surak) and four antagonists from Earth and the Federation’s past selected as personification of evil. The aliens threaten to destroy the Enterprise if Kirk and Spock do not prevail. After Kirk and Spock are victorious, the aliens complain that both sides used the same methods, reasoning that there is no discernable difference between good and evil. Kirk retorts that whereas the aliens promised the “evil” side power and riches, things that they craved – but the aliens promised Kirk the lives of his crew. Thus, it was not the method of battle, but the goals that made the difference. And even more so in the Israel-Gaza conflict, where the methods of battle ALSO demonstrate which side is “good” (acting in accordance with international law – and which side is “evil” (Hamas deliberately using civilian shields to attack civilians).

How fitting that is here. Hamas’s stated goal is the elimination of every Jew in Israel and of the Jewish state itself. Israel’s stated goal is to defend its citizens from a self-admitted genocidal enemy. Their respective actions confirm that their stated goals are their actual goals. How any reasonable person cannot be aware of this remains a mystery – the only logical explanation is antisemitism, because no other explanation matches the facts. It is simply beyond despicable for Oliver, Noah, and others like them to use casualty counts improperly, and to falsely accuse Israel of war crimes from their platforms. And we all need to call their conduct for what it truly is: Jew-hatred.

About the Author
David H. Levitt practices intellectual property and commercial litigation law in Chicago, and is a pro-Israel activist.
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