Proportionality – Part 2

So here's the question. When was the last time you heard the term “proportionality,” or, for that matter, “disproportionality,” in any context other than the hostilities between Israel and the Palestinians? There are wars in the Ukraine, Syria, Iraq, and Afghanistan; battles and kidnappings are the news from various African countries; China and other countries in the Far East exercise control over their populations that would be viewed as unacceptable anywhere else in the world.

But only Israel, responding to suicide bombings and rocket attacks on its citizens – usually civilians – is described as acting disproportionately.

During the second world war, there were no American civilian casualtiesⁱ but 350,000 Japanese civilians were killed. Over ten million Soviet civilians dies but only 700,000 Germans.ⁱⁱ In February 1945, when the war was all but over, the British and Americans firebombed the city of Dresden killing between 35,000 and 135,000ⁱⁱⁱ residents and refugees. And, of course, there was the Holocaust.

But proportionality was never an issue, although the term had been introduced in the previous century.^iv It remained for the Palestinians to reinvent it for propaganda purposes, and for the world to eagerly accept it as it seems to do for any excuse to tar Israel. It is not in vogue^v at present to blame Jews for the world's problems, but Israel is fair game. Winning a defensive war has never been seen as an evil, but that is the current view – at least in this case.

One of the “justifications” through the ages for hating the Jews (not that any was considered necessary) was that they were cruel. Antisemites were quick to point out that talion law could be found in the Torah (which, incidentally, was part of the basis for both Christianity and Islam), but it was never acknowledged that the law was understood by the Rabbis to require monetary reparations to the victim for injuries rather than physical injury of the perpetrator. And talion law was developed by the Babylonians,^vi not the Israelites.^vii

In any event, if we accept the concept of “proportionality,” it is important that we acknowledge both what should not be seen as a violation, and what we should view through this lens. As I noted last week, according to Luis Morena-Ocampo (Chief Prosecuter at the International Criminal Court),

“Under international humanitarian law ... the death of civilians during an armed conflict, no matter how grave and regrettable, does not in itself constitute a war crime. International humanitarian law ... permit[s] belligerents to carry out proportionate attacks against military objectives, even when it is known that some civilian deaths or injuries will occur. A crime occurs if there is an intentional attack directed against civilians (principle of distinction) or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality).”

Civilian deaths, therefore, resulting from a valid military attack, do not necessarily violate the “principle of proportionality” nor are they war crimes. But attacks against civilians, and the intentional placing of civilians in harm's way, are war crimes. And there is no requirement that the more powerful side “pull its punches” when dealing with an enemy bent on destroying it. International Law places no sanctions on ability, preparation, and resources.^viii Feelings of guilt and sympathy may carry weight from a public relations standpoint, but they are not legal principles.

Yet the high casualty rate among the Palestinians while Israel is successfully defending itself against the attack from Gaza is being used as the (current) justification for actions against Israel, and boycotts and divestment are popular so the UN, Protestant church groups, academics, “human rights workers,” and other antisemites are jumping on the bandwagon. Although they protest that advocacy for the Palestinians suffering under the oppression of Israeli colonialism does not constitute antisemitism,^ix all the groups seem to see Israel as the cause of the world's most significant problems. When questioned about why, with so many abominations from which to choose, they focus on Israel, the usual response is that they have to start somewhere. But “somewhere” is always Israel and there never seems to be any progress from there to other areas of hostility, even though most of the others are far more lethal. And there is never the acknowledgement of who is atacking and who is defending.

In this instance it is anti-Semitism.

There is a disproportion, but the response by Israel has not been disproportionate. There is a war, and attacks are being met by defense. It is disingenuous to fault a country under attack simply because it is winning, and those who do can only be seen as seeking an excuse to do so. The world is either unaware of Morena-Ocampo's views or consciously ignoring them. The reason may be ascribed to political necessity or economics but it is hard not to see antisemitic bias and an antisemitic basis to the actions. The question is not one of disproportionality.

Next episode: “Proportionality – Part 3” – Bottom line.

I       All WWII statistics (except Dresden) from http://warchronicle.com/numbers/WWII/deaths.htm.

ii       Admittedly 1000:1 (or whatever) is just as much a proportion as 1:1, but the latter is more in line with the desires of those who promote the concept. Actually, those who do so would like to see only Israeli deaths and would not raise the issue of proportions were the numbers reversed.

iii      http://www.historylearningsite.co.uk/bombing_of_dresden.htm

iv       See http://en.wikipedia.org/wiki/Proportionality_(law)

v        Indeed, it is illegal in some places.

vi       See http://www.britannica.com/EBchecked/topic/581485/talion

vii      Another point of interest: Although the death penalty was permitted in ancient Israel, it was difficult to justify, very rarely used, and viewed with disdain. In modern Israel capital punishment is prohibited – Adolf Eichmann was the sole exception. Would that the death penalty and cruelty were forbidden in the surrounding Islamic countries and by Sharia law.

viii     There are laws and guidelines that deal with justification for battle and responsibility for war in general, but they have no bearing on proportionality once war is declared.

ix       Those involved rarely have an adequate defense for their action and are quick to claim that whenever Jews suffer any penalty for their actions they accuse others of antisemitism. While their accusation is not true, in all too many instances – and this is one of them – the charge of antisemitism is accurate. It is hard to attribute any other explanation to the uniformity of the attacks on Israel and the blindness to violence around the world.