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Lack of Proportionality? (Nadelhoffer)

One of the primary tenants of just war theory is the jus in bello principle that the amount of force used must be proportional to the amount of harm suffered.  Critics of the recent Israeli attacks on both Palestine in the Gaza Strip and on Hezbollah strongholds in Lebanon charge that Israel has violated the principle of proportionality (see here for details).  After all, one recent body count generated the following figures: since the beginning of the conflict, 230 Lebanese (mostly civilian) and 103 Palestinians (30% civilian) vs. 25 Israelis (50% civilian) have been killed. 

And yet rather than demanding that Israel cease and desist, the West has demanded that it is the Lebanese and Palestinian governments who are responsible for bringing the conflict to an end.  Given that the kidnapping and murder of a handful of Israeli soldiers  served as the most immediate spark for the conflict–it was an open question from the start whether the Israeli targeting of civilian infrastructure and centers of mostly civilian populations was proportional. 

Israeli foreign minister Tzipi Livni had the following response to this line of criticism: “Proportionality is not compared to the event, but to the threat, and the threat is bigger and wider than the captured soldiers.”  If one fleshes out the principle of proportionality in this way, is there anything that the principle could not justify?  Traditionally, the "harm suffered" part of the principle of proportionality was backward and not forward looking–i.e., in order to see whether a military response x was proportional, one had to look to the past to see how serious the original harm y had been.  For instance, if five soldiers of country A were killed by B and A responded by killing a 1000  civilians from B, this would obviously run afoul of the principle of proportionality.  Of course, figuring out precisely when the principle has been violated is an admittedly tricky affair. 

For present purposes, that need not concern us as much as the implications of Livni’s aforementioned remarks.  What she seems to be suggesting is that in judging a country’s response to a harm, it is not to the actual harm suffered that we must look, but to the harms that could be suffered in the future.  In many respects, this very liberal interpretation of the principle of proportionality shares an affinity with the Bush doctrine of preemption–both of which essentially enable governments to side-step the mandates of traditional just war theory while nevertheless maintaining the surface appearance of moral acceptability. 

My question to the readers is the following: Is there a way of defending the recent Israeli attacks on Palestine and Lebanon that does not require us to entirely redefine the principle of proportionality?  It’s worth pointing out in advance that simply criticizing Israeli policies no more makes one an anti-Semite than criticizing American foreign policy makes one an anti-American (see here for my earlier discussion of this issue).  The issue is not whether Israel should be able to defend itself against aggressors.  Rather it is whether their current actions satisfy basic principles of justice. 

For more information about the conflict, see here and here.

While I have allowed comments on this post because I think philosophers have something to contribute to the debate about proportionality, I nevertheless reserve the right to close the comment thread in the event that is becomes unnecessarily abusive and/or hostile. There is a time and place for personal attacks, but this thread is not one of them.  So comments will be monitored for relevance and appropriateness.  Please post only once; comments may take awhile to appear.

UPDATE: Thom Brooks has brought the following commentary on the conflict to my attention.

UPDATE: There is an interesting database of bloggers on the conflict here.

UPDATE: Ruchira Paul has brought the following two commentaries–one from the left, one from the right–to my attention.

UPDATE:  Over at The Nation, there is the following interesting editorial.

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20 responses to “Lack of Proportionality? (Nadelhoffer)”

  1. The short answer to the query is 'no.' Proportionality here is not strictly backward looking. One would also legitimately look to the expected aim(s) of the conduct to which the nation was responding. (E.g., an attack on border guards may be the opening transgresssion of a war of aggression, and one would not need to wait on entry of the full contingent.) But that will not help here for a number of reasons, including the complete implausibility of the idea that Hezbollah has military force sufficient to pose a significant threat to Israel, that Hezbollah is not a national entity, and the failure of Israel to attack appropriate targets. At a more general level, if proportionality is to operate as a constraint on justified (or justifiable) action, it must be tied very closely to events rather than predictions. Recourse to longer term possibilities effectively eviscerates the constraint, for fairly obvious reasons. (Cf. Russian actions in Chechnya.)

  2. Michael McIntyre

    Jus in bello has to be subordinate to jus ad bellum. Just cause cannot simply be a post-hoc rationalization, it must be the actual motive for action. In this case, it is easy to tell that the abduction of two soldiers is not the cause for Israel's action, because the means chosen are utterly unrelated to the goal of securing the soldiers' release. The apparent goals are: (1) to destroy Hamas as a cohesive political organization, (2) to make Gaza a wasteland, encouraging emigration, (3) to destroy Hizbullah as a military organization, and more speculatively, (4) to install a puppet regime in Lebanon, as Uri Avnery has suggested in the current issue of Outlook India. Only the third goal bears any prima facie relationship to protecting the innocent, and even that dissolves at a touch. Hizbullah's cross-border incursions into Israel have been infrequent, and orders of magnitude smaller than Israel's cross-border incursions into Lebanon. On traditional just war grounds, Hizbullah would lack legitimate authority to declare war on Israel, but the Lebanese state would have far stronger grounds to invade Israel to protect the innocent than vice versa. (Of course, just war theory would rule out a Lebanese invasion of Israel because of the lack of any prospect of success).

    On the narrower and strictly subordinate question of proportionality, Tzipi Livni cannot be serious. Israel, with, according to most estimates, around 200 nuclear weapons, poses a threat to the very survival of all of its neighbors. If the proportionality of a military response is limited only by what the enemy might do, then anyone in Israel's neighborhood with a just cause for war would be permitted to wage war upon Israel completely without restraint.

  3. I don't think traditional just war theory is entirely backwards-looking in the way that you indicate; Livni's comment is not entirely off the mark, but is at least a bit misleading.

    The 'proportionality' issue often arises in discussions of 'double effect' (as it does, e.g. in Walzer). In terms of DDE, it is definitely forward-looking: whatever forseen-but-not-intended harm comes from the act must be proportional to the value of the military gain from the act (this either relies on a weird non-moral sense of 'value' or threatens the traditional distinction between jus ad bellum and jus in bello, but that's a side point).

    I don't think that a forward-looking standard makes a hash of proportionality, though. If Israel's goal was to secure the return and prevent the death of its captured soldiers, this would pretty much give the same answer as backward-looking proportionality, and the current assault would be well out of bounds – but that's somewhat accidental. If we assume (for the moment) that Israel's goal is the destruction of Hizbollah, then they're at least in halfway-plausible territory to claim that their actions do not violate proportionality, and it would be a bit misleading but not entirely untrue to say that the relevant proportionality was to the size of the threat (to be ended).

    However, there would still be a number of very serious concerns on that point, most importantly: is the value of destroying Hizbollah so great to justify this destruction? And, were any other means with lesser effects on civilians available? I'd also add, as a somewhat strategic point, that it's not at all clear that the Israeli strategy *will* work to destroy Hizbollah (I've seen it favorably compared to Kosovo, ignoring the fact that Kosovo is widely considered a classic example of how air power alone can't end a threat) – calculations of proportionality must also consider the likelihood of the means chosen to achieve their goal.

  4. T. Gracchus seems to want to have it both ways. On the one hand, he allows that “(p)roportionality here is not strictly backward looking. One would also legitimately look to the expected aim(s) of the conduct to which the nation was responding.” On the other, he maintains that “if proportionality is to operate as a constraint on justified (or justifiable) action, it must be tied very closely to events rather than predictions.”

    To defend Israel here one would not have to redefine proportionality, but simply understand a threat as entailing harm: the citizens of a country should not have to live in constant fear of attacks from their neighbors. On JWT, the question then becomes, is the Israeli response necessary to deal with the threat posed by Hezbollah (undertaken as a last resort)? Or, as I fear, is it merely an attempt to draw the US into attacking Iran and/or Syria, to provide the warmongers in Washington with another pretext for another military adventure? Comments from Israeli officials placing the ultimate responsibility for the recent events with Iran suggest the latter.

  5. It's probably worth pointing out that there are two distinct principles of proportionality as far as just war theory is concerned. The first arises in the context of jus ad bellum and maintains that the expected good to be accomplished by military action must outweigh the expected damage to be inflicted. The second arises in the context of jus in bello and maintains that the damage inflicted must be proportional to the harm suffered. I was talking about the latter not the former. And even if Israel satisfies the mandates of jus ad bellum it is still an open question whether the Israeli airstrikes are justified in terms of jus in bello.

  6. Sorry, but both just war proportionality principles, the in bello as well as the ad bellum, are purely forward-looking. For example, Additional Protocol I to the Geneva Conventions, which governs the treatment of noncombatants in war, states the in bello principle as forbidding incidental harm to civilians "which would be excessive in relation to the concrete and direct military advantage anticipated," i.e. in relation to something future rather than past.

    And the principles would surely be unacceptable if they were other than forward-looking. An enemy has killed 100 million of your citizens but now has no weapons left and poses no threat to you at all. So proportionality allows you to kill 100 million of his citizens? That's pure vindictiveness. Or your enemy is about to kill 100 million of your citizens and you can stop him by an action that will collaterally kill 10 of his citizens. So proportionality forbids you to act until he's killed 10 of your citizens? Again, crazy.

    This isn't to say Israel's current actions are proportionate, or that all its past actions have been. Amnesty International charged that the bulldozing of entire streets of houses in Jenin was disproportionate even though Amnesty applied a forward-looking test, and one can make a similar charge now.

    But a forward-looking in bello principle, however hard it is to apply, is anything but an "entire redefinition" of proportionality. It's how the principle has always been understood, and how it must be understood if it's to be morally credible.

  7. Professor Hurka,
    Are you suggesting that the principle of proportionality is entirely forward-looking? For I took that to be the implication of Livni's aforementioned remark. It was not the event–in this case, the kidnapping and murder of a handful of Israeli soldiers–that warranted Israel's response, but rather the potential threat to Israel that the militants in Gaza and Lebanon represent.

    But isn't the fact that the event itself involved no direct civilian casualties relevant when considering whether the amount of civilian suffering the Israelis have inflicted in response is proportional? Isn't one important question concerning proportionality whether the response was proportional to the harm endured? Even if you are right that the principle of proportionality has a forward-looking component, it still seems like the events that serve as the impetus for the response must at least be taken into consideration.

  8. If the enemy has no more weapons there are no combatants and no more war. Further hostilities fall under crimes against humanity, which is to say, ordinary mass murder. There is no sense to proportionality there. The principles cannot be purely forward looking or they would have no grip at all — there would be no limit on pre-emptive attacks. Furthermore, assessment of proportionality of tactics cannot be purely forward looking for similar reasons — one need not be all that creative to generate a scenario providing a chosen line of conduct with connection to some possible military target.
    "Purely forward looking" does not have much meaning.

  9. Thomas,

    The general formula for a proportionality calculation, ad bellum or in bello, is that the relevant harm a war or act in war will cause must not be excessive compared to the relevant good it will do, where not all good effects nor (though this is more controversial) all bad ones count as relevant. So that formula is forward-looking. But the proportionality condition is part of a more general theory of the just war which has backward-looking components, like the just cause condition. You only have a just cause for war against a given enemy if that enemy has committed or is about to commit a wrong of the kind that generates a just cause.

    But though not all good effects count — that fighting a war will boost our GDP isn't a relevant good, nor is it relevant that an act in war will give pleasure to soldiers who want to try out new equipment — the ones that do count aren't on most versions of just war theory narrowly restricted to those involved in the specific just cause.

    Let's say a neighbour invades our southern province. On most views that initiates an overall war in which we're permitted to attack not only those troops of his in our southern province but also others in position to attack our northern province, even though they haven't done so yet. It also permits us to forcibly disarm him to incapacitate him for further aggression, just as a criminal's breaking the law permits us to imprison him to incapacitate him from further crimes. Thus, in 1945 the Allies were permitted to forcibly disarm Germany and Japan even though their aggressions had all been reversed, and in 1991 the UN coalition was permitted to at least partially disarm Iraq — or to include conditions about disarmament in the ceasefire agreement that ended the war — even after Iraq's forces had been expelled from Kuwait.

    I don't want to go too much into the Israeli case, since it's complex and I'm not that well-informed. And I do tend to think that Israeli actions in the occupied territories and elsewhere have often been disproportionate. But Israel can make the following claims in the present situation. First, the Hezbollah attacks across the border initiated an overall state of war, and did so especially if they were preceded (as I think they were) by an earlier pattern of cross-border bombing. So in that respect they licensed a more general war against Hezbollah than one concerned just with the individual Israeli soldiers who were captured or killed. Second, and independently, they licensed further action to disarm Hezbollah and thereby incapacitate it for future attacks, which I gather is what Israel is primarily seeking. I don't know how relevant you'll find this, but today's Globe and Mail carried an article by Amos Oz, a founder of Peace Now, saying that while Peace Now opposed the 1982 invasion of Lebanon and continues to oppose Israel's occupation of the West Bank, it supports the current military action as an act of self-defence.

    None of this, of course, implies that the specific level of civilian casualties in Lebanon is proportional, which, again, I doubt. But there's another complication, about which harms are relevant. If the enemy hides his forces among a civilian population and places his military installations close to them, so we can't attack his military targets without killing many civilians, does the proportionality restriction on collaterally killing civilians apply unchanged or is it weakened by the enemy's responsibility for the civilians' exposure to risk? Additional Protocol I seems to say the restriction is unchanged, but many commentators, especially in the U.S. (and maybe Israeli?) military say it's not, i.e. if the civilians die that's the enemy's responsibility not ours, because he put them in the line of fire. As I said above, this is a controversial issue and I find it hard to reach a decision about it. But I suspect defenders of Israel will absolutely appeal to it here: if Lebanese civilians die because Hezbollah put its rocket batteries in their villages, that's in large (if not entire) part Hezbollah's responsibility and so counts less against the proportionality of the Israeli military action.

    Again, this isn't to conclusively decide the current issue one way or the other. It's just to say that a conclusive decision about it is much more complicated than the simple charge of disproportion in your initial post seemed to suggest.

  10. Michael Walzer has an essay in TNR addressing in part this question:

    http://www.tnr.com/doc.mhtml?i=20060731&s=walzer073106

  11. Professor Hurka,

    Earlier when I said that I firmly believe that philosophers have something valuable to contribute to this debate, I meant it. So, I just wanted to thank you for confirming my belief with your helpful and clear-headed comments. My question in the original post was not rhetorical and I appreciate your not having treated it as such.

  12. Antti Kauppinen

    It seems to me that framing the debate in terms of proportionality is potentially very misleading here. This is because jus in bello proportionality comes into play with respect to damage to a party in a war, so that when damage is done to a third party, the moral harm is best described in other terms. And this is a large part of the problem with the war in Lebanon.

    At the root of this, of course, is that Hezbollah does not equal the state of Lebanon. Indeed, it is questionable whether Lebanon as it is fulfils the central criterion of the traditional sociological definition of a state as set of institutions with a monopoly of (legitimate) violence, given that Hezbollah has its own armed wing. This situation derives from a tortuous history of ethnic conflict and religious division – the tacit acceptance of Hezbollah armament is the price the Lebanese government pays for avoiding another civil war. (Which is good to remember next time some talking head lays the blame on the government for not controlling Hezbollah.)

    Given the essential distinction between Hezbollah and the state of Lebanon, even if Hezbollah's actions licensed a 'more general war' against it, as Prof. Hurka puts it. He may be right, but that's a more general war against Hezbollah and its supporters, not against a party that neither approved nor was able to control the actions of Hezbollah. So, I can't see how they could possibly license attacks on the entire Lebanese infrastructure and other civilian targets. The attacks are not just "disproportionate", since neither the state nor a vast majority of its citizens never engaged in any military action against Israel. It is extremely misleading to present the victims as those who hide, or allow Hezbollah to hide, legitimate military targes in their homes and villages, since this is not the case for the majority of them. It is also extremely misleading to talk just of the dead as victims, when we have half a million people driven from their homes, an entire economy ruined and an entire population terrorized and deprived from essential services. By any imaginable standards, most of these people never did anything to which Israel's actions could be a 'response', proportionate or disproportionate. That, I believe, should be the basis for the moral case against the war. I think it is also the basis for the moral outrage that many feel – were Israel to bomb strictly Hezbollah targets, perhaps including traffic infrastructure in the immediate vicinity of the border and roads used for transport of weapons from Syria, I don't think there would be such an outcry, even if there were some civilian casualties.

  13. Eric Vogelstein

    It does seem to me that Israel's actions are not proportional, in the sense that the harm plausibly prevented through it's actions is not greater than the harm caused by it's actions. But I thought I should mention that proportionality does not seem to me to be a very intuitively plausible principle. Consider the following example. Bellicose Country A will (with 100% certainty) kill 1 million innocent civilians of Country B, without justification, unless country B defends itself by killing 2 million of Country A's innocent civilians (suppose that's the only way for Country B to defend itself). Is Country B then required to allow one million of its citizens to die, since the harm prevented (1 million deaths) is less than the harm caused (2 million deaths)? It seems quite clear to me that Country B can attack Country A in order to defend itself. Perhaps most people do not share my strong intuition in this matter. But if they do (and I suspect they do), this seems to be a strong counterexample to any proportionality principle.

  14. Eric,

    The proportionality principle is not generally understood as something like a strict utilitarian calculation. For one thing, as Prof. Hurka has discussed (and I won't even try to add to it), some goods and harms that might be results of military action don't count into it.

    But it's also not generally understood as a numerical calculus in the way you describe but rather as something more like being a harm on the same order of magnitude. I think many just war theorists would allow (were there no other options) country B to take action that would kill 2 million to prevent an attack that would kill 1 million. Killing a million to prevent an attack that kills five people would be right out, but killing a million to prevent the deaths of 100,000 would be a matter for some hemming and hawing, probably.

    Also keep in mind that such utilitarian thought experiments obscure a lot of great import to just war thinking. For instance, your country B would be expected to take every care to protect country A's civilians from the effects of its attack, even if they thought their actions were likely to be futile.

  15. Eric Vogelstein

    Daniel,

    Thank you for your response. I think that an example analogous to the one I gave can function just as well as a counterexample to the proportionality principle considered in terms of orders of magnitude. The scenario you described–where the numbers are one million/one hundred thousand–is fine. It seems wildly counterintuitive to me that the country would be required to sacrifice one hundred thousand of its citizens in such a case. Am I in the minority on that?

    Also, I wonder what someone who does not share my intuition would think about a case in which I must defend my own life by killing a host of people–say, 10. It seems clear to me that if the only way to survive is to kill 10 innocent people, I'm not morally required to sacrifice my life.

    Now, one might say that these cases are not counterexamples to proportionality because the harms do not differ by orders of magnitude after all. But we have to be careful not to render the principle trivial. "Order of magnitude" cannot simply mean "the harm difference that makes a moral difference" (or something like that). That is, the principle becomes trivial if the boundary between orders of magnitude is simply determined by our moral intuitions, or by what matters morally.

  16. Eric,

    Fair enough. I bow to anyone better versed in the just-war literature than myself, but for my money, the question of what, exactly, is "proportional" is one of the more difficult ones to work out.

    In terms of your analogy, though, keep in mind that in traditional JW theory, proportionality comes into play when discussing the *side effects* of a military action, not direct means. There is a big difference in the theory between, say, bombing a military position with civilians nearby, and knowing that (say) 100 civilians will be killed and bombing those 100 civilians to (say) demoralize the enemy. Traditional JW theory will say that the first might be OK if proportionality is satisfied but that the second is (almost) never OK, regardless of what good might be gained.

    I don't think the answer to "what's proportional?" is trivial, but I also don't think that a good JW theory will give you a general, abstract answer to it.

    This is what makes me a bit queasy about directly extending your analogies – maybe it's just the limit of my imagination, but I don't HAVE a strong intuition about whether you might, in some cases, be required to allow an attack that would kill 100k citizens if the only alternative is something that would kill another million.I can't imagine a *specific* scenario with a side effect that high, where there are no plausible alternatives.

    Though, I think many JW folks would say things that may violate your intuitions (myself included) on the 10:1ish scale. Walzer, e.g., talks about soldiers giving warning before tossing grenades into potentially enemy-occupied buildings. Of course, this gives the enemy a chance to shoot. We could easily imagine a scenario in which tossing grenades willy-nilly will likely kill 1 civilian, while giving warnings will likely get 10 soldiers killed. I think in such a case proportionality would require risking the soldiers in such a case.

    The other issue with your analogy is that it raises a separate question of "military necessity" (at least, that's what Walzer calls it). If you are about to be killed, the JW analogy would be an existential threat to the nation. Many JW theorists allow that at least some of the normal rules get a bit flexible when dealing with cases in which a nation faces total destruction (rather than some more limited form of damage). Most theorists would not say that you are required to allow the destruction of your nation, even if the cost to prevent it is very high (cue some debate about nuclear weapons).

  17. Eric Schliesser

    A perceptive point made by Juan Cole in his blog is that "the Levant and points east are now the province of militia-parties that dominate localities and wield asymmetrical paramilitary force in such a way as to stymie states, whether local host states, local adversaries, or imperial Powers." Last I checked just war theory has failed to catch up to this feature–Cole's analysis suggests that in the new, post-Westphalian political order the sharp distinction between citizen and soldier, which is essential to just war doctrine, is made largely meaningless.

  18. Eric (S),

    The strict distinction between soldier and citizen has been problematic since well before the rise of asymmetrical warfare – one of the major problems, in fact, has been democracy (I know a number of folks have made this point, but I don't have my books handy, so please excuse the lack of citation). The traditional picture was one in which the soldiers fought each other and most citizens genuinely had nothing to do with it – they were put in harm's way by a political leadership not responsive to them. The current world, where most states at least in theory speak in the name of their people, raises serious questions about how to draw the line between combatants and 'innocents' (since, e.g., leaders of armies are legit targets…). Jeff McMahan, I know, argues for an re-thinking of the combatant/civilian distinction that more closely tracks moral guilt and innocence in a 2004 Ethics article.

    I don't think the use of irregular forces and asymmetrical warfare erodes the soldier/civilian distinction as much, though it does raise questions about whether it favors powerful actors and, if so, does so legitimately or not – it's possible to make a distinction between (say) a Hizbollah fighter and a Lebanese shi'a who has never picked up a weapon, but the former is pretty likely to be positioned among plenty of the latter. And so, it raises questions of targeting – on the one hand, the distinction *does* hold and classic JW theory will come down pretty hard on placing fighters among civilians. But on the other, it seems a bit too easy to let Israel (e.g.) wash its hands of civilian deaths b/c of Hizbollah tactics, especially since there's a savor of "the rich and poor alike are forbidden to sleep under bridges" to the rule.

    I think the bigger issue Hizbollah poses for traditional JW theory is the question of whether and to what extent civilians willingly harbor its fighters, and how much such complicity would move them into the realm of legitimate targets (and what this means for most citizens of democracies); also, on the jus ad bellum side, how the existence of all sorts of quasi- and para-statal actors should affect our thinking about aggression, etc. (e.g., is it aggression against Lebanon if they really couldn't control Hizbollah if they wanted to?)

  19. Along with McMahan's 2004 article in Ethics, he does a nice (and more abbreviated) summation of his argument(s) about asymmetric war in a piece called "The Ethics of Asymmetric War." It's printed in The Ethics of War: Shared Problems in Different Traditions (eds. Sorabji and Rodin, Ashgate 2006).

    The book is an interesting collection of new essays on the current approach to war, from several different backgrounds (Just War Theory, Judaism, Hinduism, Islam).

  20. re: "Given that the kidnapping and murder of a handful of Israeli soldiers served as the most immediate spark for the conflict"

    This "given" is patently false. The immediate spark for the conflict was Israel's kidnapping of two Palestinian civilians in Gaza. And please don't turn to the "It doesn't matter who started it, it's too complicated anyway" argument. If that were the case, then you would not have asserted that Hezbollah started it.

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