Proportionality in international law

Guide to the Perplexed has an excellent post on the chorus of cries slamming Israel's military action in Gaza as 'disproportionate' - misunderstanding the proportionality doctrine.

Some talking points about the proportionality doctrine has been circulated by the Israel Ministry of Foreign Affairs, which I have included below.

International law A military target remains a legitimate military target, even if it is located in a civilian area. "Civilians do not enjoy absolute immunity. Their presence will not render military objects immune from attack for the mere reason that it is impossible to bombard them without causing injury to the non-combatants." (Oppenheim's 'International Law') The use of civilians as shields to try to prevent attacks on military targets is prohibited. "The presence of a protected person may not be used to render certain points or areas immune from military operations." (Fourth Geneva Convention, Article 28) The armed forces are not liable where injury to civilians results from unavoidable collateral damage, provided it is proportionate to the military gain expected of the attack. "Although they are not military objectives, civilians and civilian objects are subject to the general dangers of war in the sense that attacks on military personnel and military objectives may cause incidental damage… Members of the armed forces are not liable for such incidental damage, provided it is proportionate to the military gain expected of the attack"  (Major General A.P.V. Rogers, a former Director of British Army Legal Services) Terrorist organizations that hide behind civilians bear the primary responsibility for civilian casualties. "Should civilian casualties ensue from an attempt to shield combatants or a military objective, the ultimate responsibility lies with the belligerent placing innocent civilians at risk"  (Dinstein,'Conduct of Hostilities under the Law of International Armed Conflict') The correct party to assess the proportionality of a military action is the military commander in the field. "It is unlikely that a human rights lawyer and an experienced combat commander would assign the same relative values to military advantage and to injury to noncombatants.… It is suggested that the determination of relative values must be that of the 'reasonable military commander' "  (Committee Established to Review NATO Bombings in Yugoslavia) The security of one's own forces is a relevant consideration in gauging proportionality. "The concept of military advantage involves a variety of considerations including the security of the attacking force." (Bothe, Partsch and Solf, New Rules for Victims of Armed Conflict) International practice The above principles of the law of armed conflict have been adopted as the basis of military guidelines by most states. The following examples of military manuals are typical: Australian Defence Force Manual: The presence of non-combatants in or around a military objective does not change its nature as a military objective. Non-combatants in the vicinity of a military objective must share the danger to which the military objective is exposed. Belgian Teaching Manual for Soldiers: Objects occupied or used by enemy military forces are military objectives even if these objects were civilians at the outset (houses, schools or churches occupied by the enemy). German Military Manual: The term "military advantage" refers to the advantage which can be expected of an attack as a whole and not only of isolated or specific parts of the attack. France's Law of Armed Conflict Manual: The application of the principle of proportionality does not exclude that collateral damage may be suffered by the civilian population or civilian objects provided they are not excessive in relation to the concrete and direct military advantage anticipated. Spain's Law of Armed Conflict Manual: The principle of proportionality… is based on recognition of the fact that it is difficult to limit the effects of modern weapons and methods of warfare exclusively to military objectives and that it is likely that they will cause collateral damage to civilians and civilian objects. Israel – IDF operational planning and orders: In cases where there is doubt as to whether a civilian object has turned into a military objective… one is to assume that it is not a military objective unless proven otherwise. Even when it is not possible to isolate the civilians from an assault and there is no other recourse than to attack, the commander is required to refrain from an attack that is expected to inflict harm on the civilian population that is disproportionate to the expected military gain. International practice A survey of military actions directed against terrorist and other groups using concealment strategies within civilian population centers underlines the tragic cost that inevitably results to civilians in such cases. For example, the campaigns directed against Taliban and Al-Qaeda in Afghanistan and against Serbian militants in Kosovo, give an indication of the scale of civilian casualties that have been involved: Yugoslavia – 'Operation Allied Force' About 500 Yugoslav civilians were reported to have been killed in the 90 air strikes that took place during the Allied Force operation. Among the significant incidents that occurred during the campaign: In April 1999, 16 civilian technicians and workers, mostly young people, were killed and 16 more civilians were injured in an attack on the Serbian Radio and Television headquarters in Belgrade. The Committee Established to Review the NATO Bombings in Yugoslavia conducted a review of the incident, and concluded that "the civilian casualties were unfortunately high but do not appear to be clearly disproportionate". In May 1999 at least 100 civilians were killed in an attack on the village of Korisa. NATO emphasized that the bombing was directed at "legitimate military targets" and that the loss of life was regrettable, but a legitimate outcome of a necessary operation. Later that month (May 1999), a bombing attack led to the deaths of at least three patients in the Dragiša Mišović hospital in Belgrade. The attack was directed at a military barracks in the Dedinje district adjacent to the hospital. Israeli conduct Israel makes significant efforts to avoid or minimize civilian casualties, by ensuring that its attacks are directed against legitimate military targets, and that in conducting its operations incidental injury to civilians is kept to a minimum. Every potential military operation is considered on an individual basis in order to ensure that it meets the test of proportionality. In practice this means many proposed military operations are rejected when it appears that the likelihood of collateral damage to civilians and their property is too high. As Israel's High Court of Justice has held, in reviewing Israeli security actions: "This is the destiny of democracy, as not all means are acceptable to it and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand". (HCJ 5100/94)

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[Brett Chatz]

As world condemnation of Israel's assault on Gaza grows, Iran starts making some noise

The citizens of southern Israel have been under threat of rocket fire from neighboring Gaza for several years already. While most of the projectiles have failed to cause fatalities, they are succeeding as a preferred terrorist weapon.

The aim of the rocket barrages that continue to pummel southern Israel is this: to show Israel that Hamas is determined to sew the seeds of destruction in Israel. The terrorist organization is unperturbed by Israeli firepower. Their strength sprouts from their misguided perception of freedom fighting. The more of their own they bury the greater their support base grows.

Any international observer who believes that Hamas is a fad or not a serious threat to Israel is sorely mistaken. Hamas is a well-structured outfit, funded, trained and supplied by radical Islamists in Syria and Iran. Hamas does not care for the Palestinians - they are merely their cannon fodder to serve the greater agenda - Israel's destruction. As a proxy territory of Iran, Gaza will do Tehran's bidding, much like Hizballah in southern Lebanon.

That Israel has been called to task regarding their targeted bombardment of Hamas terror cells, infrastructures, weapons caches and institutions is a sham. Israel has attempted to target specific entities in Gaza. Contrast this with Hamas' indiscriminate bombing of Israeli towns, cities and other random locations. There is no legitimacy for the Hamas operation. They claim to be fighting for the Palestinians when in fact they are placing them in harm's way by dragging Israel into a war.

Hamas broke the 6 month truce. They shelled Israel and continue to do so. It appears as if Ahmedinejad is itching for a fight and Hamas is just the tonic the doctor ordered. With Hassan Nasrallah in the north readying his fighters and the Muslim Brotherhood stirring up protest rallies in Egypt and elsewhere, the world is teetering on the brink of mayhem.

Israel - at least in the eyes of Arabs and their sympathizers - has no right to react to rocket fire. They should take it on the chin and allow Hamas to continue their pyrotechnics extravaganza. Such thinking is unheard of in any country. The Israeli government has been entrusted with the unenviable task of protecting its citizens from terrorist assaults.

With such an unfriendly neighborhood this task is exceptionally difficult. To date there have been over 400 Palestinians killed and over 2000 wounded. International pressure is mounting against Israel to halt its bombardment of the densely populated Gaza. Rocket launch sites, terror cells and Hamas homes have all been hit hard by a ruthless Israeli air assault into the coastal territory.

The next move appears to be the decision as to whether to invade Gaza or to stay out. With just 3 weeks to go before President-Elect Obama gets sworn in, it's anybody's guess what Israel will do. A land assault will have serious ramifications, what with threats of anti-tank missiles and growing Muslim protests the world over.

Israel has a job on its hands and again it's not on the battlefield but in the media. Is Israel's quest a legitimate one? Can Israel expect sympathy when it has exponentially greater firepower and ability?

These are some hard issues that the Jewish state has to contend with.

[Immanuel Suttner]

According to

http://www.haaretz.co.il/hasite/spages/1052468.html

some 300 000 Israeli children are not able to go to school because of the ongoing Hamas rocket attacks on civilian targets. The Israeli government has set up a learning scheme whereby children forced to stay at home can do distance learning study via the internet. However many of the towns in the South are the poorest in Israel and many residents do not have computers. Here lies a great opportunity for anyone who wishes to help the children of Israel in a practical way...