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On Proportionality – Part II

Note:  in a previous post ("On Proportionality – Part I") I discussed the idea of proportionality and considered events in the period prior to Hamas’ election to power.  This post continues the discussion.

2)  The period following Hamas’ election. In January 2006 Hamas was elected to power in Gaza.  This followed a 2005 cease-fire between the PA and Israel, which Hamas pledged to abide by in September of that year.  What happened next is complicated, but basically Israel and the U.S. supported an attempt by the Palestinian Authority to launch a coup which was defeated by a preemptive Hamas attack.  This was followed by months of frequently bloody fighting between Hamas and Fatah forces.  

At various points, Hamas’ leadership has appeared to be moving toward an acceptance of Israel’s existence within the 1967 borders.  As early as 1997, Yassin raised the possibility of a "30-year truce" in return for complete withdrawal from all territories captured in the Six Day War, an offer that was later reiterated in 2003 and 2004 by both Yassin and Rantisi.  On June 6, 2006  Haniyeh wrote a letter to President Bush, delivered to the State Department by an American intermediary, stating that "We are so concerned about stability and security in the area that we don’t mind having a Palestinian state in the 1967 borders and offering a truce for many years."   On June 27, 2006 Haniyeh and Mahmoud Abbas’ jointy agreed — after weeks of negotiation —  to a manifesto calling for establishment of Palestinian state in West Bank and Gaza, conditional on its acceptance in a July 26th referendum; this was widely viewed as an implicit recognition of Israel’s right to exist; in November 2008 Haniyeh arguably went even further when he declared Hamas’ willingness to accept a Palestinian state based on the 1967 borders. 

Two days before the 2006 joint manifesto was issued, however, on June 25th 2006, forces connected to Hamas (there were complicated and overlapping claims of responsibility) crossed the border and kidnapped Gilad Shalit; two other soldiers were killed and three wounded in the same raid.  (Subsequent kidnappings by Hezbollah on the northern border led to Israel’s invasion of Lebanon.) In response to the kidnapping of Shalit, on June 28th Israeli forces arrested 64 Hamas officials, including elected legislators, and launched "Operation Summer Rain," a military incursion characterized by heavy bombardment of civilian infrastructure starting with bridges and power plants.  According to Ehud Olmert the goal of the operation was "not to mete out punishment but rather to apply pressure so that the abducted soldier will be freed. We want to create a new equation – freeing the abducted soldier in return for lessening the pressure on the Palestinians." (This statement was originally quoted in HaAretz; I have only been able to find secondary sources repeating the statements, as here and here.) 

Through the following year the conflict between Hamas and the PA continued to rage, until Hamas took full control in June 2007.  During this period there were various attacks by Hamas against Israel and vice verse; also during this period, Israel imposed its blockade on Gaza.  It is crucial to recognize that the Israeli blockade is a total rather than a selective blockade.  Unlike the U.S. blockade of Cuba, which was restricted to interdicting the importation of weapons, the Israeli blockade extended – and continues to extend – to everything, including food, medicine, fuel, construction materials, consumer goods, money and even electricity.  In March of 2008 Israel launched another offensive into Gaza, again ostensibly to search for Gilad Shalit, that resulted in more than 120 deaths.  In April Hamas offered a truce, that was agreed to on June 18. Hamas spokesmen had indicated for moths that they would consider a long-term cease-fire in return for Israel lifting its blockade (see HaAretz and Reuters.)  The understandings in June was that Israel would at least ease its blockade, that Hamas would participate in talks concerning Gilad Shalit, and that both sides would refrain from military attacks against the other.  At the time of its initiation,  Olmert warned that the truce would be "fragile."

The truce lasted for six months.  During that time there were numerous events that each side claimed to constitute violations of the terms or the spirit of the agreement.  Israel points to four separate occasions of cross-border attacks, and extensive smuggling of both weapons and civilian goods through a network of tunnels similar in design to tunnels that had been used to launch attacks across the border in the past (including the kidnapping of Shalit).  Hamas asserted that Israel had failed to lift its blockade — thus necessitating the smuggling — and that the attacks across the border were in retaliation for Israeli actions on the West Bank.  Israeli raids on November 4 and November 17 are cited as further violations; Israel responded that the construction of the tunnels was a violation of the spirit of the truce.  In December Hamas resumed large-scale rocket attacks on Israel, to which Israel responded with Operation Cast Lead.

Do the theories of proportionality and self-defense have any application to these events?  From Israel’s perspective, one might argue that Hamas’ election made it the equivalent of a state actor, meaning that actions taken under its command and control, or by those whom it harbors and supports, constitute instances of jus ad bellum.  There are two categories of such possible acts:  the raid that resulted in the kidnapping of Gilad Shalit, and attacks on Israel prior to Hamas’ election.

Do acts committed prior to accession to a position as a state actor carry over to provide grounds for military response against the state?  In 1948, would Great Britain have been justified in launching military attacks against Israel – joining forces with the Arab states – on the grounds that during the pre-state period the new government had engaged in violent attacks against British forces?  The answer has to be "no"; that is, while the justification for action to apprehend and punish individual non-state actors involved in violence does not disappear with those persons’ election to office, and those same individuals may be held accountable for actions taken while in government, actions taken prior to being part of a government cannot provide a basis for military response against the state as a collectivity.  In other words, the election of terrorists to government office is not a casus belli for war against the state they are elected to govern.  

Alternatively, if Israel does not recognize Hamas as a state actor at all then the proportionality issue becomes sharper.  If Hamas-controlled Gaza is not a state, then Israel’s actions are not militarily defensive, they are collective punishment, a perversion of the police model of response that goes far beyond the collateral damage of its previous targeted assassinations.  The attack and kidnapping of a solder – and the killing of two others – is certainly a justification for defensive action; again, however, Israel’s jus in bello was wildly disproportionate by any plausible measure.

From Hamas’ perspective jus ad bellum is likewise not hard to find.  Any of Israel’s actions taken following the 2006 election – involvement in an attempted coup, air strikes, and above all the imposition of a general blockade – are classic examples of acts of war. (Israel, in fact, cited Egypt’s blockade of the Straits of Tiran as casus belli for its preemptive attacks on Egyptian forces in1967).  If Hamas-controlled Gaza is a state actor, then both Hamas and Israel have jus ad bellum.  

The remaining question of means cannot be answered by asking who struck first.  In a way that’s what proportionality is all about; if Japan strikes first by bombing Pearl Harbor and seizing Wake Island, one kind of American response is justified, but the same level of response would not have been justified by, say, North Vietnamese forces firing on a patrol boat in the Gulf of Tonkin even if the event had actually occurred.  To repeat the observation that began this discussion, proportionality is an element of the grounds for military self-defense  just as much as it is an element of the analysis of the means by which that defense is undertaken.

In discussions of the proportionality of means, Israel and its supporters often argue that there is a clear distinction:  Hamas’ rockets, no less than its earlier suicide bombers, deliberately target civilians, while Israel causes civilian deaths only as a secondary consequence of its pursuit of other, military aims.  The argument is partly irrelevant; predictable civilian deaths, if excessive (applying any of the several measures of excessiveness) are a basis for finding a violation of proportionality.  Beyond that observation, however, neither element of the distinction that Israel draws holds up very well.  Hamas’ rocket attacks employ Qassam and, more recently, Grad rockets.  While it is demonstrably true that these are weapons that can hit Ashkelon and Beer Sheva, they are not precision GPS or laser-guided munitions, they are basically "point-and-fire" weapons, which is why so many of them used to land in empty fields.  Lately both the technology and the skill involved have improved so that now rockets launched from Gaza have a good chance of hitting a target the size of a city.  This certainly shows an "intent" to cause civilian casualties in a general sense, but perhaps not in the particular sense that is demonstrated by a suicide bomber standing in the entrance to a crowded nightclub.  

This is not an excuse, merely a distinction, but it is a distinction that has weight when we consider the Israeli case.  Israeli attacks are not "intended" to cause civilian casualties only if one employs the narrowest and most subjectivist conception of "intent" whereby it is the equivalent of something like "primary motive."  Legal language is full of different ways to parse the idea of intentionality, but one basic principle is that a person is held to "intend" the foreseeable consequences of their actions.  A person who fires a gun into a crowd or drops a brick from a high window is not excused by virtue of their lack of a specific intent to cause a particular death (although the particular crime charged may vary).  Moreover, the blockade of Gaza is explicitly and directly "intended" to cause harm to civilians; that’s its point, as repeated statements by Israeli political leaders have demonstrated.  If intent is the test, then the practice of assassinations by missiles is at best highly questionable; the bombardment of civilian infrastructure is inexcusable; and the blockade is simply criminal.  During this second period both Hamas and Israel are guilty of attempting the intentional killing of civilians in ways that defy any standard of proportionality.  

Which leaves us back where we started.  As the death toll approaches 1,000, are the means that Israel and Hamas are employing "proportional"?  Like Hezbollah in Lebanon, Hamas uses the civilian buildings as military cover; as it did in Lebanon and in Gaza before, Israel deliberately targets the civilian infrastructure.  Article 51(5) is difficult to apply to Israel’s actions because the military goal of the operation is difficult to define.  If the idea was to impair Hamas’ future ability to launch rocket attacks, the calculation seems to be in doubt: Israeli intelligence officials have been quoted as saying that Hamas has lost only a few hundred of its estimated 20,000 fighters and retains significant supplies of rockets. 

The deeper question, of course, is whether "proportionality" remains a useful category of analysis.  By any accepted interpretation, the standard has been repeatedly violated by both Israel and Hamas; in an imaginary world governed by the rule of international law, officials from both sides should be looking ahead to trials for war crimes.  That’s not likely to happen, although officials on both sides may not be able to travel to Europe in years to come, a distinction they will likely share with officials from the Bush administration, Sudan, and Gulbuddin Hekmatyar.

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