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Gaza air strikes

(Photo credit: Business Insider)

By Keith Pavlischek

Walter Russell Mead is one of America’s most perceptive commentators on American public life. But in an otherwise perceptive commentary “America, Israel Gaza, The World, Mr. Mead articulates a rather common yet mistaken understanding of how the Just War tradition understands the jus in bello criteria of proportionality. According to Mr. Meade:

Theoreticians of “just war” say that in order for war to be justifiable, two tests must be met. You have to have a legitimate cause for war (self-defense, for example, rather than grabbing land from a weaker neighbor) and you must fight the war in the right way. You must fight fair (that is, fight a just war), and you must fight nice.

One of the criteria for jus in bello (fighting nice as opposed to jus ad bellum which is about whether it is just) is proportionality. If the other guy comes at you with a stick, you can’t pull a knife. If he’s got a knife, you can’t pull a gun. If he burned your barn, you can’t nuke his capital. Your use of force must be proportionate to the cause and to the danger.

Mead notes that radical critics of Israel oppose attacks on Hamas in Gaza on jus ad bellum grounds by claiming “that its occupation of the West Bank and other crimes against the Palestinians have deprived it of a just grounds for war when Palestinians attack it.

But more moderate critics of Israel (including many Israelis) focus on jus in bello, and in particular they look at the question of proportionality. When the Palestinians flick a handful of fairly crude rockets at random across Israel, these critics say, Israel has a right to a kind of pinprick response: tit for tat. But it isn’t entitled to bring the full power of its industrial grade air force and its mighty ground forces into an operation designed to crush Hamas at the cost of hundreds of civilian casualties. You can’t fight slingshots with tanks.

Mr. Mead thinks that historically Americans have never gone in much for this “tit for tat” manner of war fighting. He is right to about that. As I discussed at length in a New Atlantis article, ”Proportionality in Warfare, he is wrong to think that this popular “tit for tat” notion has anything to do with the jus in bello notion of proportionality.

In that article I cited the Just War theorist Michael Walzer’s essay in Parameters, the professional journal of the U.S. Army. Walzer, writing after Israel’s Operation Cast Lead, noted the “anger over the ratio of deaths in the recent Gaza war — 100 to one, Gazan to Israeli, according to figures accepted by the New York Times.” If those deaths “were all soldiers (fighters or militants) on either side,” Walzer wrote, “a ratio like that would simply be a sign of military victory, the deaths regrettable but probably not immoral.”

Walzer, of course, is absolutely correct here. Proportionality, properly understood has absolutely nothing at all to do with bringing a gun to a knife fight, and almost nothing to do with measuring the ratio of combatant casualties. (See my “Proportionality in Warfare for a brief discussion of those very rare possible exceptions.) Quite simply, the notion that proportionality requires something close to a “tit for tat” employment of military force is a gross misunderstanding and distortion of the Just War tradition and the Law of Armed Conflict (LOAC).

The proper understanding of the jus in bello criterion of proportionality, that for centuries was part and parcel of  customary international law has to do with the unintended, “incidental” or “secondary” harm done to noncombatants. Proportionality has to do with weighing the unintended bad effects to noncombatants against the intended good effects of an attack. This traditional understanding was articulated for the first time in an international treaty, as opposed to customary law in the Geneva Protocol I (1977), in which it prohibited attacks “that may be expected to cause incidental [unintended] 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.”

Mead thinks that Americans are much more sympathetic to Israel in their fight against Hamas largely because Americans haven’t bought into the “tit for tat” notion of proportionality. I suspect he is right about that.  But he is wrong to suggest that America’s historical and contemporary understanding runs against the grain of the Just War tradition, rightly understood.