International law and the Israeli-Palestinian conflict
Like Mara, I’ve been trying to find a way to constructively engage with the Israeli-Palestinian conflict. And like Mara, I find it very difficult. But I have discovered something I can read a lot about without feeling too angsty and terrible – international law. The rational, objective, black-and-white world of international law.
In theory, at least. In an ideal world, international law would get us around these tiresome, biased debates about who is right and who is wrong (The Jews! The Arabs! The Americans! The Saudis! The military-industrial complex!) and onto the more solid ground of which actions are legal and which are not. And in conflict situations, deciding this depends a lot on the concept of proportionality.
Proportionality is probably not what you think it is. It’s not what I thought it was. It has absolutely nothing to do with comparing how many people are killed by one party versus the other. It’s about comparing the amount of damage (in terms of civilian lives and property) done by one side versus the strategic military advantage that they gain by doing so. From Kevin Jon Heller at Opinio Juris:
As Article 51(5) of the First Additional Protocol says, an attack is indiscriminate — and thus prohibited by IHL — if it “may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”
So, we look not at Palestinian vs. Israeli casualties to judge proportionality, but at the advantage gained by each party by its action.
In addition to the Opinio Juris piece (which is really worth reading and has 72 comments posted) there is lots and lots of chatter on the Internets about why proportionality isn’t a terribly useful lens to look at the conflict through – unfortunately, it seems to have created as polarized a debate as the conflict itself. But in my opinion international law still has unique promise as a tool for regulating international relations – and it’s one I think Canada could rely on increasingly in the future if it hopes to intervene more frequently in an extremely divided world while still maintaining at least a veneer of neutrality.
In order to do that, we need to clarify and achieve consensus on some of the remaining grey areas in international law – like proportionality. I have some ideas about that, which I will save for another post.
The BBC – Gaza conflict: Who is a civilian?
Alan Dershowitz – Israel’s Policy is Perfectly ‘Proportionate’
Opinio Juris – Dershowitz on Israel and Proportionality
Michael Walzer – On Proportionality