Proportionality

When my sons were still young, a while back, I used a method of discipline for violence which, I suspect, would now be at best frowned upon and, at worst, would subject me to punishment by protectors of “abused” children. The method was simple. If one of my sons struck the other, the penalty was that the injured party, under my supervision,ⁱ was permitted to strike the aggressor in the same way – as hard as he could.

My wife and I were blessed with childrenⁱⁱ who accepted the system and agreed that it was fair, and who ultimately accepted their sib's blows with resignation. They knew the rules and they knew the consequences of violating them. There were no excuses. They may have tried to justify their actions but, in the end, admitted their faults and acquiesced in the resulting turnabout. They knew that an appeal to a different judge – their mother – would be fruitless, and they knew that they could not manipulate the system. Perhaps we were just lucky or perhaps the system contributed to their behavior, but the level of violence and acting out was low.ⁱⁱⁱ

The subject comes up because of the extensive criticism that Israel has been receiving regarding its actions in the ongoing hostilities in the Middle East. (Today is August 8th, but this won't be published for a while.)  Proportionality is a complex and loaded subject – one that I've avoided until now – but the debate on the events there seems to be centered on it, rather than the situation which has triggered the fighting, so I can no longer ignore it.

Proportionality. Perhaps the most conspicuous, but least understood, concept related to the story. So the most useful start in what will probably turn out to be a two or three part^iv discussion of the subject has to be historical, political, and linguistic. According to Wikipedia,^v

“The proportionality test was first developed in the High State Administrative Courts (Oberlandesgericht) in Germany in the late 19th century, to review actions by the police. The proportionality test originated systematically with the jurisprudence of the German Constitutional Court, the Bundesverfassungsgericht.”^vi

And in terms of current international law,

“The harm caused to civilians or civilian property must be proportional and not excessive in relation to the concrete and direct military advantage anticipated by an attack on a military objective.”^vii

These words are well-crafted, like most diplomatic verbiage, but may yield varying (and contrary) interpretations. But what is “right?” What does it mean?

According to Luis Moreno-Ocampo, Chief Prosecuter at the International Criminal Court,

 

“Under international humanitarian law and the Rome Statute, 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 and the Rome Statute permit 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) (Article 8(2)(b)(i)) 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) (Article 8(2)(b)(iv)).

“Article 8(2)(b)(iv) criminalizes: Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated; Article 8(2)(b)(iv) draws on the principles in Article 51(5)(b) of the 1977 Additional Protocol I to the 1949 Geneva Conventions, but restricts the criminal prohibition to cases that are "clearly" excessive. The application of Article 8(2)(b)(iv) requires, inter alia, an assessment of:
(a) the anticipated civilian damage or injury;
(b) the anticipated military advantage;
(c) and whether (a) was "clearly excessive" in relation to (b).”^viii

It remains a little opaque, but it seems to prohibit “Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.” Hence it permits such actions if reasonable in relation to the anticipated military advantage. It does not seem to permit, however, causing the deaths of civilians for political purposes.

As I noted, the interpretation of these criteria may be confusing^ix but, as I'll indicate next week, there seems to be a disconnect between what the world says, and what is actually happening.

Next episode: “Proportionality – Part 2” – More of the same.

i        To make sure the injured party himself played fair, lest punishment result.

ii       And still am.

iii      I don't mean to suggest that my children (two sons and a daughter) saw eye-to-eye on every issue, but they learned how to manage their disagreements in a reasonably civilized manner. As I said, we were blessed.

iv       Or maybe more. I hope you don't get too bored.

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

vi      According to that nugget, “proportionality” was a concept invented and developed by the nation that gave the world the Holocaust. While invoking the Holocaust to shed light on other situations trivializes it, it is worth mention that those who speak of proportionality frequently raise the issue, and condemn Israel for “Nazi-like” behavior.

vii       See note iv.

viii     Moreno-Ocampo, Luis (9 February 2006), OTP letter to senders re Iraq, International Criminal Court.

ix       As I mentioned, it isn't even clear what “proportionality” means – or, better, “proportional and not excessive.”