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Israel and the Doctrine of Proportionality

Author: Lionel Beehner
July 13, 2006

Introduction

Israel's offensive into Lebanon and the Gaza Strip, in response to the abductions of two of its soldiers by Hezbollah and one by Hamas militants, raises a number of difficult legal questions. Among them: Did the Israeli response violate the principle of proportionality? UN Secretary General Kofi Annan has accused Israel of "disproportionate use of force" in its air strikes aimed at infrastructure including bridges and power stations, attacks which cut off clean water and electricity to Palestinian civilians. Legal scholars say armed reprisals against civilians are against the 1949 Geneva Conventions and not permissible under international humanitarian law. But Israel says its countermeasures are within its right of self-preservation, given the nature of its national security threats, and claims it is morally and legally bound to protect its nationals abroad. Israel's prime minister called Hezbollah's latest attack and seizure of two of its soldiers "an act of war," which raises even further legal questions about the nature of the current conflict.

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What is the doctrine of proportionality?

The doctrine originated with the 1907 Hague Conventions, which govern the laws of war, and was later codified in Article 49 of the International Law Commission's 1980 Draft Articles on State Responsibility (PDF). The doctrine is also referred to indirectly in the 1977 Additional Protocols of the Geneva Conventions. Regardless of whether states are party to the treaties above, experts say the principle is part of what is known as customary international law. According to the doctrine, a state is legally allowed to unilaterally defend itself and right a wrong provided the response is proportional to the injury suffered. The response must also be immediate and necessary, refrain from targeting civilians, and require only enough force to reinstate the status quo ante. That said, experts say the proportionality principle is open to interpretation and depends on the context. "It's always a subjective test," says Michael Newton, associate clinical professor of law at Vanderbilt University Law School. "But if someone punches you in the nose, you don't burn their house down."

How does the doctrine apply to the current context in Israel?

Many legal experts say Israel's response to the recent abductions has not upheld the principle of proportionality and violates international humanitarian law. "Every nation has a right to defend its citizens," says David M. Crane, a professor at Syracuse University College of Law, "but you must launch an attack in a proportional way and can't cause unnecessary suffering for civilians." Israel was criticized by some European governments and the UN secretary general for targeting Gaza's sole power plant and knocking out power to half of the region's 1.3 million Palestinians. The Geneva Conventions prohibit armed reprisals that intentionally inflict collective punishment against civilian populations as well as the targeting of nonmilitary targets. But some legal experts say during wartime, separating legitimate military from civilian targets can be tricky. "Virtually no target can, ipso facto, be delisted from a list of potential military targets," says Michael J. Glennon, professor of international law at the Fletcher School at Tufts University. "A hospital or church, if defended by enemy troops, becomes a military target." That includes electric grids, he adds.

Is Israel legally allowed to use force to find its soldiers?

Yes. Israel is well within its right to protect its nationals abroad and to defend itself with the use of force, as authorized by Article 51 of the UN Charter. Experts say Israel has a legitimate case—it was attacked unprovoked by Hezbollah. Less clear from a legal perspective is what kind of force is acceptable. "The U.S. concluded that the attack on Pearl Harbor necessitated overthrowing the Japanese government," Glennon says. "Strictly speaking, would the doctrine of proportionality have permitted only a tit-for-tat response? That's one of the uncertainties the doctrine presents."

An important factor is the scope and scale of Israel's mission. "Is the key to what they're doing tailored to the mission of getting the soldiers back? That's the question," Newton says. He says that offensives carried out by Israel must be related to the military objective of rescuing its soldiers, not exacting punishment on the Lebanese or Palestinian populations. But under certain circumstances, its mission could be expanded to prevent Hamas or Hezbollah from carrying out future cross-border attacks or seizing more soldiers.

Is the Lebanese government responsible for the abducted soldiers?

Yes. Israel is correct to hold the Lebanese government responsible for their protection, despite the fact they were captured by Hezbollah, a minority faction within Lebanese politics. "There's a longstanding principle of international law that states may not permit their territories to be used for activities that harm another state," Glennon says. Short of the use of force, Israel may respond legally by retorsion—any countermeasure taken by one state against another, regardless if an illegal act has been committed—which may include a severing of diplomatic ties or possibly sanctions.

Under the doctrine of proportionality, can Israel target Syria?

"There would have to be a pretty clear causal connection," Newton says. "It must be more than just general support. If there's evidence Syrian intelligence was used [by Hamas and Hezbollah], then you have a different question." A Syrian lawmaker called flyover missions by Israeli jets over Syrian President Bashar Assad's summer residence "a threat and a violation of all legitimate international laws," but legal experts say a reprisal against Syria, short of the use of force, may be allowed if it is proven Damascus was involved in the soldier's abduction. Were it to attack Syria directly, Israel would likely use the same argument used by the United States after bombing Libya in 1986 in response to a terrorist attack against American soldiers in West Berlin—that it is not an armed reprisal but an act of self-defense to prevent future incursions (the U.S. bombing of Libya was called an "unprovoked act of aggression" by the international community).

Has Israel historically obeyed the doctrine of proportionality?

A number of experts say it has not. "Israel tends toward disproportional responses, which just fuel further anger [in the region]," Syracuse University's Crane says. In 1993, Israel's seven-day bombing campaign of Lebanon in retaliation for Hezbollah rocket attacks in northern Israel was condemned by the international community for violating the rules of proportionality. In 1981, Israel struck Iraq's Osirak nuclear reactor without provocation, a preemptive action experts say violated international law. Israel contends it is merely acting in self-defense (or in the case of Osirak, anticipatory self-defense) and, given the security threats of its neighbors, who have called for the elimination of Israel, is within its rights as a sovereign state.

Which international legal cases uphold the doctrine of proportionality?

The doctrine has historically been upheld by courts on a wide variety of disputes and issues. It applies to states channeling funds and arms to insurgent groups. In Nicaragua v. USA (1986), the International Court of Justice (ICJ) ruled that U.S. aid to the contras in El Salvador did not constitute "collective self defense" because Nicaraguan support of the Sandinistas did not constitute an armed attack and, further, "self-defense would warrant only measures which are proportional to the armed attack and necessary to respond to it." The principle applies to the use of weapons of mass destruction as well. In 1996, the United Nations asked the ICJ to decide whether the threat or use of nuclear weapons was ever justified in international law. The ICJ, in essence, does not exclude the use of nuclear weapons in self-defense provided the humanitarian laws on armed conflict are upheld. Finally, the principle applies to disputes not related to war or self-defense, such as the Gabcikovo/Nagymaros Project, a system of dams, locks, and hydropower plants on the Danube River originally conceived in 1977 between Hungary and then-Czechoslovakia. After 1989, amid environmental concerns, Slovakia carried out alternate plans and accused Hungary of abandoning work on the project. The ICJ ruled in 1997 that Slovakia's response was not a proportionate countermeasure and deprived Hungary of a vital shared resource (namely, the Danube, which divides the two countries).

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