"When at last it was over, the war had many diverse results and one dominant one transcending all others: disillusion."
-Barbara Tuchman,
The Guns of August (1962)

As of this writing, the end of a violent August, the conflict between Israel and Hezbollah is now subject to a fragile ceasefire, ambitious plans for a European-led UN peacekeeping force of 15,000, and renewed calls to "disarm" Hezbollah forces within Lebanon. Hezbollah's kidnapping of Israeli soldiers, its indiscriminate firing of missiles into civilian areas inside Israel, and Israel's devastating counterattacks within Lebanon have led to considerable debates about international law. Although no one is under any illusions that the conflict will be resolved in a court of law or even by the UN, the battle to win hearts and minds is being fought in part through appeals to the rule of law.

Amnesty International argues that Hezbollah and Israel are guilty of war crimes and has called for a comprehensive, impartial UN inquiry into violations of international humanitarian law by both sides. With respect to Israel, an Amnesty International Report points to massive destruction of whole civilian neighborhoods and villages and attacks on water pumping stations, water treatment plants, supermarkets, and bridges with no strategic importance. The August 23rd Report cites statements by Israeli military officials suggesting that such attacks were designed to press the Lebanese government and the civilian population to turn against Hezbollah and asserts that these statements indicate that the resulting actions were not mere "collateral damage" or the unintended by-products of Hezbollah's use of civilians as "human shields." An August 14th "Open Letter" to President Bush expresses the organization's additional concern about possible U.S. transfers to Israel of cluster munitions given that the use of such bombs could constitute illegal, "indiscriminate" attacks on civilians when used in urban areas. This legalistic letter cites to the UN Guidelines on International Arms Transfers along with Article 16 of the Articles of State Responsibility (recognizing a state's international responsibility when it "aids or assists" another state in the commission of an internationally wrongful act) to suggest U.S. complicity and urges renewal of a ban on supplying cluster bombs to Israel first imposed during the Reagan Administration.

While hard legal issues are raised with respect to both Hezbollah and Israel by the guns and bombs of August (see, e.g., the Council Comment in this newsletter, p. 5; and the August 17th and August 24th ASIL Insights by Frederic L. Kirgis and Jonathan Somer, respectively: "Some Proportionality Issues Raised By Israel's Use of Armed Force in Lebanon" and "Acts of Non-State Armed Groups and the Law Governing Armed Conflict," the former of which is also published here on p.1), the concerns with respect to Israel raised by Amnesty International and others center on the most fundamental principle of humanitarian law, namely that, as J.S. Pictet put it, "belligerents shall not inflict harm on their adversaries out of proportion with the object of warfare, which is to destroy or weaken the strength of the enemy." Although reflected in the Geneva Conventions, this standard for proportionate balancing is either a general principle of law or a universally applicable rule of custom that has been applied by international and national courts.

Proportionality as applied to the guns of August has drawn its share of critics. Washington Post columnist Richard Cohen is particularly vitriolic in an op-ed appearing on July 25th. He suggests that those calling for a "proportional" Israeli response to Hezbollah are anti-Semitic. With respect to the Middle East, Cohen argues that "proportionality is madness. For Israel, a small country within reach, as we are finding out, of a missile launched from any enemy's back yard, proportionality is not only inapplicable, it is suicide. The last thing [Israel] needs is a war of attrition. It is not good enough to take out this or that missile battery. It is necessary to reestablish deterrence: You slap me, I will punch out your lights. . . . [I]t's either stupid or mean for anyone to call for proportionality. The only way to ensure that babies don't die in their cribs and old people in the streets is to make the Lebanese or the Palestinians understand that if they, no matter how reluctantly, host those rockets, they will pay a very, very steep price."

International lawyers have a responsibility to educate people like Cohen. As with many general principles or rules of custom, the proportionality rule is easy to apply in some respects. Few international lawyers would defend a deliberate attack on civilians whether it resulted from unguided Hezbollah missiles, cluster bombs, or Israeli bombers. To the extent Cohen defends attacks on Lebanese civilians in order to make them "understand," he is correct that international law prohibits this but, if historians of bombing campaigns for such purposes (e.g., Ernest May, The "Lessons" of History, 1973) are right, he is also, in all probability, wrong that bombing civilians will make them more sympathetic to the bombers.

On the other hand, deciding whether an attack that incidentally does damage to civilians is legally "excessive" is not a simple matter of looking to see which side inflicted more damage on the other's civilians. Contrary to what Cohen suggests, the rule of proportionality does not require Israel to respond "with only one missile for every one tossed its way." Proportionality involves, as ASIL member David Kaye argues in a July 27th op-ed in the San Francisco Chronicle, a subjective judgment about "whether the use of force causes harm to civilians that is justified by the gains of eliminating the specific Hezbollah target." In the absence of "smoking gun" evidence of clear Israeli intent to target civilians, an impartial investigation of Israel's acts would need to apply this harder, subjective test to concrete decisions made by the Israeli military.

Proportionality balancing is difficult because, as Israel's own High Court has indicated, it requires making both objective and subjective determinations, namely: 1) whether the military means used reasonably advance the military objective; 2) even assuming that the first test is satisfied, whether the military deployed the "least injurious means" to accomplish its legitimate goals; and 3) whether the damage caused to civilians was in "proper proportion" to the gain sought. Israel's High Court applied these tests when the construction of a portion of the Israeli "wall" was challenged and indicated that, far from being anti-Semitic, proportionality was a principle of both international and Israeli law that it was required to apply. While the Israeli High Court gave considerably more deference to security concerns than did the International Court of Justice (ICJ) in its 2004 Advisory Opinion on the same subject, it affirmed that the proportionality standard was "objective" to the extent that it was not merely a matter of deciding whether military commanders acted in good faith. Further, the Israeli Court, although very much aware of the threat terrorist acts pose to Israeli society, nonetheless affirmed that the third and crucial determination, which involves weighing the security benefits sought versus the nature of the harms imposed on civilians, was an objective and legal calculation that judges could make. Significantly, the Court determined that the third test was not satisfied for some portions of the wall; it decided that the security risks sought to be avoided did not justify its location in some respects and it ordered the military to reexamine those decisions. (See Beit Sourik Village Council v. The Government of Israel, HCJ 2056/04, Judgment of President A. Barak.)

Judicial applications of proportionality, whether by the ICJ or the Israeli High Court, do not indicate that this rule, for all its generality, is either the inflexible "recipe for doom" that Cohen sees or the toothless plaything of power that critics of customary law imply. Proportionality is a nuanced principle that, like many others, straddles utopia/apologia and yet advances both humanitarian and more pragmatic security concerns. It has earned its critical place in military decision-making. Like many general principles or rules of custom, its appeal to governments and to most people - lawyer and non-lawyer alike - resides in its basic fairness.

Cohen's demand that we replace proportionality with the nonrule of the schoolyard bully echoes the dissatisfaction of some U.S. policymakers with what Cohen denigrates as the "ditsy Marquess of Queensberry idea of war." Among the lessons emerging from the guns of August are that collectivities do not respond the same way as some individuals do to bullies, and that those who discard the law's rules for resorting to and conducting war do so at their peril.

José E. Alvarez

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