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International law and the Israeli-Palestinian conflict

January 9, 2009

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.

On proportionality:

The BBC – Gaza conflict: Who is a civilian?

Alan Dershowitz – Israel’s Policy is Perfectly ‘Proportionate’

Opinio Juris – Dershowitz on Israel and Proportionality

Allan Gerson – Proportionality and Disproportionality: A Guide to Arguments about Gaza

Michael Walzer – On Proportionality

5 Comments leave one →
  1. Jeff Spiers permalink
    January 12, 2009 3:25 pm

    The oft-cited problem with deferring to international law, of course, is that those institutions willing to uphold it (i.e. the UN) are incapable of doing so, and those capable (i.e. militarily strong nations like the US, Russia, Israel) are unwiling. The whole realm of international law thus takes on an air of fantasy divorced from the reality that takes place in actual conflicts.

    But notwithstanding this defect, international law remains critical because it provides a framework for debate on geopolitical issues stripped of the divisive polemics of specific conflicts. Debates in international law obligate us to think beyond the conflict at hand and contemplate the general principles (like proportionality) that ought to govern the type of situation with which we are faced. And that process of abstraction encourages us to think beyond the present interests of any one side to the long-term interests of all members of the international legal order.

    And more important than any principle or conclusion of international law is the process itself. The primary benefit of legal debate is its ability to transpose conflict from violent physical exchanges into a war of words. Imagine a world in which all wars were fought in a courtroom.

  2. January 10, 2009 4:50 pm

    Thanks Kevin. I meant “rational, objective, black-and-white” in a tongue-in-cheek way – like “arguments about tax cuts versus job creation are very black-and-white” or “I have an objective preference for Angelina Jolie over Jennifer Aniston”. The whole debate over proportionality shows how very grey international law is. But I have hopes that it can be refined – made at least more helpful as a tool, if not more objective (whatever that means).

    And I’m glad you mentioned the need to assess military advantage – that’s what I took away from reading a lot about proportionality, so I’m glad I was on the right track. I’ll write more about that in my next post.

  3. January 10, 2009 2:08 pm

    Thanks for the kind words about the post. I hate to seem ungrateful, but I should probably point out that international law is, alas, anything but “rational, objective, black-and-white.” As proportionality analysis indicates — no one really knows how to assess military advantage, must less whether collateral damage is disproportionate to it, which is why international criminal law defers so strongly to military commanders — subjectivity and shades of gray are unfortunately the norm, not the exception…


  1. Proportionality, strategic military advantage and the battle for hearts and minds « Canada’s World
  2. More on proportionality and Michael Walzer « Canada’s World

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