Proportionality

by Chris Bertram on January 5, 2009

Much of the blogospheric chatter about “proportionality” in warfare has been characterized by disinformation of a rather systematic kind. That was the case in the recent Lebanon war, and it is happening again during the current Israeli operation in Gaza. At Opinio Juris, Kevin Jon Heller does an excellent job of explaining the legal issues by way of what it would be absurdly ironic (in this context) to call a thorough “Fisking” of Alan Dershowitz. As Brian Leiter (via whom) points out, the moral issues are also significant.

Update: I found this BBC article about who is legally entitled the benefit of the principle of noncombatant immunity quite useful.

{ 15 comments }

1

Ken Houghton 01.05.09 at 7:19 am

Leiter is, of course, correct both in their significance and their irrelevance.

2

zdenekv 01.05.09 at 12:23 pm

I agree with Jo Heller ( but note that he is giving Dershowitz support when he says that there is at the moment no evidence that Israel is acting criminally in Gaza ) but Brian Leiter’s and Patric O’Donnell’s view that surfaces in the comments sections of JoHeller piece , is open to a serious criticism which is that what they call ‘moral considerations’ is a disguised political judgment. They want to say that what matters — when it comes to Israel’s behaviour in Gaza– are moral considerations and not legal ones ( Jo Heller type considerations undermine Leiter’s view which involves the claim that Israel is acting criminally ) , and on moral grounds alone it is obvious that Israel is acting barbarically.

But what exactly are they talking about when they insinuate that what counts is some deeper principles ? Do they have Kantian respect for persons in mind or perhaps utilitarian considerations ? Maybe but why would this give us any other result than what Jo Heller has reached since in such a case they would be actually basing their judgment on principles of Just War Theory? No, it seems that Leiter / O’Donnell are talking about moral “intuitions” and the suspicion here of course is that moral intuitions = ideological considerations.

3

Rob 01.05.09 at 2:21 pm

It looks to me like he must be wrong when he says that the size of the threat makes no difference to judgments of proportionality, because proportionality is determined in relation “to the concrete and direct military advantage anticipated”. Anticipation – which presumably has some kind of reasonableness standard applied – of bigger concrete and direct military advantages allows you to kill more civilians. In that sense, setting aside the issues about the status of the belligerents, how many Israeli civilians are being killed by Hamas’ rockets does matter for how much force Israel may legitimately use, since presumably the military advantage Israel is seeking – which isn’t to say that there aren’t other advantages Israeli politicians are also seeking – is the end of Hamas’ rocket attacks on their civilians.

4

Chris Bertram 01.05.09 at 3:22 pm

_but note that he is giving Dershowitz support when he says that there is at the moment no evidence that Israel is acting criminally in Gaza_

Actually, what he says is

bq. I do not know enough to conclude that Israel’s attacks are criminal. I agree with Marko: “talking about these matters without knowing all the facts is truly dangerous. Indeed, it only tends to expose the speaker’s political and ideological biases.”

“I do not know enough to judge that P” is not synonymous with “there is no evidence that P.” Dershowitz believes “the evidence is that not-P”, so quite how you could construe Heller as giving him support is a mystery.

5

Alex 01.05.09 at 5:50 pm

there is at the moment no evidence that Israel is acting criminally in Gaza

Note that you can act evilly without acting criminally.

6

Righteous Bubba 01.05.09 at 5:58 pm

Note that you can act evilly without acting criminally.

My suspicion is that the Leiter link should be

http://leiterreports.typepad.com/blog/2009/01/international-l.html

7

zdenekv 01.05.09 at 6:00 pm

Is Heller fighting in Dershowitz’s corner ? Of course not but he nevertheless makes two points that should bring some joy to Alan D : he points out that the very common criticism of IDF effort in Gaza which relies on the idea of proportionality by means of which people try to show that Israel is acting criminally does not work; Heller in effect refutes this popular view .This of course is an endorsement of Alan D’s stance.

But secondly Heller draws attention to the fact that to know whether Israel has acted disproportionately in Gaza requires knowledge of facts that the critics of Israel simply do not have. That is, it requires knowledge regarding IDF’s military objectives together with knowing whether the harm to civilians is excessive relative to these objectives and that these facts are hard to come by. The upshot again is something Alan D should welcome because it shifts the burden of proof to the critics of Israel. Or something like that.

8

zdenekv 01.05.09 at 6:25 pm

” note that you can act evilly without acting criminally “

Yes, this is the point Brian Leiter seems to be making ( banal point I might add ) but the idea is clearly a non starter. Why should I take your Kantian intuitions about respect of persons , say, seriously if my intuition which relies on what say the scripture says tells me something completely different ? And this is just the beginning of an impossible problem that threatens to be more serious ( ones you moralize the issue )than the problem we have with the international law. Secondly of course how do you know that what you call moral intuitions is not biased by your politics ?

9

Alex 01.05.09 at 6:29 pm

to know whether Israel has acted disproportionately in Gaza requires knowledge of facts that the critics of Israel simply do not have. That is, it requires knowledge regarding IDF’s military objectives together with knowing whether the harm to civilians is excessive relative to these objectives and that these facts are hard to come by.

Indeed, all those 530 Gazans might just have gone on a cheap wintersun break. I mean, you don’t KNOW they didn’t. And how do YOU know the IDF isn’t after a GIANT BACTERIAL HITLER CLONE hiding somewhere in Gaza?

Absence of giant bacterial hitler clone evidence isn’t evidence of giant bacterial hitler clone absence! In fact, in an alternate future in which they killed, say, only 529 Gazans, the giant bacterial hitler clone might have turned up; you don’t KNOW it wouldn’t, so clearly, their action is entirely legitimate.

(The GBHC – it’s like this year’s pony.)

10

Seth Edenbaum 01.05.09 at 6:30 pm

[Seth – you are banned from my threads irrespective of what you have to say (sane/insane, true/false, etc). You’ve been a nuisance in the past and we don’t want you around. CB ]

11

Alex 01.05.09 at 6:33 pm

Why should I take your Kantian intuitions about respect of persons , say, seriously if my intuition which relies on what say the scripture says tells me something completely different ?

What year is it again? I feel like I’m being conscripted into a rerun of 2003: A Bush Odyssey. You’ll take my Kantian intuitions seriously; look what happened last time.

12

MarkUp 01.05.09 at 8:00 pm

”” note that you can act evilly without acting criminally ””

But as VP Dick says, if you’re not punished for it, it is not wrong/illegal.

13

roy belmont 01.05.09 at 8:18 pm

Heller, agreeing with someone named Marko:
“talking about these matters without knowing all the facts is truly dangerous”

Giving Marko and Heller the benefit of the doubt as to the vagueness of “truly dangerous” with its lack of prepositional qualifier, I’m assuming they don’t mean the quislingesque dangerous merely to themselves, but rather “truly dangerous” because it might lead to something worse than what’s already happening.
Something bigger, more deadly.
But then that’s the point, isn’t it? Because that seems to be right where it’s headed.
Not only do we have to bear with outraged conscience the ongoing horror of Gaza, but we have to somehow hold up against the steady drive toward nuclear confrontation with Iran, which this seems intentionally designed to further provoke.
“Seems to” because that’s all we have over on this side, some heroic eyewitness from inside Gaza, and a bunch of intuition. Which may not be enough to win a legal argument, but it’s enough to keep us talking about these matters.
Because while we may not have all the facts, we have enough of the facts, we have more than enough of the facts. The situation is already truly dangerous, maybe just not for Marko and Heller and others.

14

herr doktor bimler 01.05.09 at 8:36 pm

“talking about these matters without knowing all the facts is truly dangerous. Indeed, it only tends to expose the speaker’s political and ideological biases.”
The worst thing that could happen from a situation where 500+ people have died would be for a blogger to lose credibility.

15

zdenekv 01.06.09 at 9:16 am

“You will take my Kantian intuitions seriously…. “

Sure, but you are missing my point. “Moral intuitions” need some sort of independent confirmation because they are subject to illusion. Several studies show this : Kahneman and Tversky ( I think its 1979 ) describe subjects who were given an imaginary scenario and asked to make a judgment about who will live and who will die in a group of 600 people. Moral intuitions swung enormously depending on whether a choice was described as ” 200 people will be saved ” or “400 people will die”. There is another study ( Cacioppo 1993 ) which shows that subjects are far more likely to rate an unfamiliar Chinese symbol in favorable terms if the symbol is presented while the subject is pressing his hands up against the underside of the table at which she is sitting than when the subject is pressing his hands down on the surface of the table.

The point is that our strongly felt and indubitable moral intuitions are influenced by irrelevant factors. That is , moral beliefs might seem self- justified ( because they are based on “intuition” ) when they are not justified.

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