CNNWhat does this have to do with the concept of "proportionality"?
New Day
July 15, 2014
6:02 a.m. Eastern
CHRIS CUOMO, host: Proportionality is a big part of this story always when there's conflict. Israel obviously has the advantage militarily. Uh, yesterday, actually mistakenly reported that there had been deaths in Israel. None so far. Some reports of light casualties. Accurate?
PETER BEINART, CNN contributor: Right.
CUOMO: Now, on the other side from the Ministry of Health there, close to 200 deaths, 1,400 injured, many women, children, civilians, schools supposedly damaged. It takes us to the issue of proportionality. How does that play here?
BEINART: Right, well this is always the problem for Israel. Israel does send leaflets and phone people in order to get them to leave their buildings so as to try not to kill innocent civilians but Gaza is a very heavily crowded place and so when you launch all of these missiles, and there has been a very intense barrage by Israel, more intense than in previous conflicts, you're gonna kill a lot of innocent people and that undermines Israel’s image in the world. On the other hand, Israel has this very effective Iron Dome program and the Hamas rockets are very inaccurate and very primitive so every conflict like this, we've seen a huge disparity in death toll.
Absolutely nothing.
The ICRC has a page dedicated to "proportionality in attack." It has nothing to do with the (frankly obscene) idea that each side must suffer similar casualties. Cuomo (and to an extent Beinart) seem to have a puerile viewpoint that war must be between equally matched side. Even more obscenely, the implication is that Israel's defensive measures like Iron Dome that limit Israeli casualties is somehow vaguely unfair and things might be better if Israel would just let some more Israelis get killed.
Interestingly, the word "proportional" is not used in any accepted international law, although it was proposed and many nations use that word in their own laws of war. Here is the source text, from Additional Protocols of the Geneva Conventions of 1977 (Israel is not a signatory but accepts the definition):
Additional Protocol IThere is lots of other good information on that page about the concept of proportionality, all of which proves that Cuomo and Beinart have no business pretending that they are knowledgeable about anything.
Article 51(5)(b) of the 1977 Additional Protocol I prohibits "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. "
Under Article 85(3)(b) of the 1977 Additional Protocol I, “launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects, as defined in Article 57, paragraph 2 a) iii) is a grave breach. "
Israel’s Manual on the Rules of Warfare (2006) states:(It isn't a manual, it is a study guide. h/t Gidon at the front.)
In any attack, it is a duty to ensure that:The manual further states: “Proportionality must be maintained: an act must not be performed if the damage to civilians/the environment exceeds the concomitant military benefit.”
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- That the military gain expected from the attack is proportional to the expected damage that would be caused to civilians as a result of the offensive.
And this:
In 2008, in a briefing to the Diplomatic Corps on Israel’s operations in Gaza, Israel’s Vice Prime Minister and Minister of Foreign Affairs stated:International law accepts that civilians will get killed - it is not a war crime when it happens. When Hamas places weapons and explosives underneath people in the expectation of protecting them (which is a war crime,) warning the people to leave to minimize the casualties is a supremely humane thing to do that goes way beyond anything required by international law. If anything, the amount of effort Israel puts into minimizing civilian deaths while waging a legitimate military campaign is literally unprecedented.
I think that Israel is the only state in the world in which its Minister of Defense has today, during a time of almost war, met with the Attorney General, the Minister of Justice, and Foreign Ministry experts on international law, in order to speak about and understand the terms of proportionality in accordance with how the IDF [Israel Defense Forces] works and will continue to work on the ground. So, basically, it is not something that can be judged. I hope that the international community knows that we are trying to avoid civilian casualties … .In 2008, in a background paper on Israel’s operations in Gaza, Israel’s Ministry of Foreign Affairs stated:
Now, it comes down to different examples. We can discuss them. The situation in which you have a family living in a factory where I know there are rockets that can kill Israelis – is this proportionate action? I think that it is proportionate. But these are the decisions that the Israeli Chief of Staff needs to decide on a daily basis.
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So, yes, I believe that what we are doing is proportionate but I don’t know how you can measure proportionality when you are in this kind of situation. In a way, a war against terrorism is unfair because, on one side, there are these terrorists. Believe me, proportionality is something that isn’t part of their vocabulary, and international law is not part of their vocabulary and the Geneva Convention is not part of their vocabulary. We are working with our hands tied because of all these rules, and because we are part of the free world, and because this is part of our values as well. But accidents can happen and civilians are also being killed by Israeli operations. I am not going to ignore it but I hope that there is a better understanding of what we are trying to avoid.
In practice, two key questions arise in relation to the legitimacy of the … execution of an operation: 1) Is the target itself a legitimate military objective? and 2) Even if the target is in itself legitimate, is there likely to be disproportionate injury and damage to the civilian population and civilian property.
3. Proportionality
The second legal requirement is that any attack be proportionate, in the sense that incidental loss and damage expected to be caused to civilians and civilian objects must not be excessive in relation to the military advantage anticipated.
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While the principle is clear, in practice weighing an expected military advantage against possible collateral damage can be an extremely complex calculation to make, especially in the heat of an armed conflict. In their report to the Prosecutor of the International Criminal Tribunal for the former Yugoslavia, the Committee established to review NATO bombings in Yugoslavia highlighted the particular difficulties which arise when military objectives are located in densely populated areas:
The answers to these questions are not simple. It may be necessary to resolve them on a case by case basis, and the answers may differ depending on the background and values of the decision maker. It is unlikely that a human rights lawyer and an experienced combat commander would assign the same relative values to military advantage and to injury to non-combatants. … It is suggested that the determination of relative values must be that of the “reasonable military commander”. [Final Report to the Prosecutor by the Committee established to review NATO bombings in Yugoslavia para. 50-1]Furthermore, in making this determination, a military commander is not required to ignore questions relating to the safety of his own forces. To the contrary, As Bothe et al note:
The concept of military advantage involves a variety of considerations including the security of the attacking force. [ibid]
And under the principle of proportionality, the terror groups are the ones who are violating international law, because the military advantage of attacking an airport or a nuclear plant is zero compared to the expected (and, in this case, desired) civilian impact.
This should be basic knowledge. But when it comes to Israel, anyone can make up anything and not be expected to back it up.
Beinart, although I disagree with him on many topics, is not stupid, and he should not acted this ignorant on TV. He should have known better than to answer the way he did, implying that the question was valid.
(h/t MtTB)