Thursday, January 01, 2009

Proportionality Revisited I

Just like during during the Second Lebanon War, much of the debate about Israel's conduct in this war revolves around whether Israel's strikes against Hamas are proportional. Generally left unexplained is: proportional to what? Additionally, the very idea of proportionality is difficult to understand. Why should a country respond in a manner that is proportional?

After my last post, in which I challenged opponents of Israel's decision to target Hamas to provide some realistic option, I've decided to lay out Israel's obligations in this war. In doing so, one must explicate the meaning of proportionality, which can only be done once the status of Palestinian civilians is clarified. I'll begin with the latter issue and show how proportionality is directly related to whether one believes Palestinian civilians are free targets:

Is There a Distinction Between Civilians and Combatants?

The civilian/combatant distinction has a long and venerable history. It goes back at least to the days of Hague Convention of 1907 and, at least in theory, has guided how Western countries have fought wars (of course theory is not reality). But what is the basis of the distinction?

We can conceptualize the distinction as follows: as a general rule people have the right to live. They should not killed arbitrary or indiscriminately; they only lose their right to live in certain circumstances. War is one of those circumstances. War is a suspension of the regular rules of daily life. War is a state of affairs when each party decides that trying to kill the other is preferable to the status quo.

While war has also been part of human nature for as long as human walked the Earth and outlawing war is essentially a fool's errand, we can make rules that limit the carnage. One such rule is to distinguish between people who are actively engaged in the fighting and those who remain on the sidelines. Those who engage in fighting (combatants) have chosen to forgo (for the most part) their right to life, while those who have chosen not to fight retain that right.

This distinction makes sense. It follows that someone who is actively trying to kill his neighbor bears the risk of his actions and give up his rights. By threatening his neighbor's life, he forfeits his usual protections. But someone who merely happens to live in the same country as those doing the fighting has not threatened his neighbor and accordingly preserves his rights.

How is this dichotomy relevant to Israel's war against Hamas? Essentially, unlike a normal country, Hamas does not have an army, and only has a military wing. Consequently, any member of its military wing, which includes its so-called police force, must be deemed a combatant and is fair game. Also important is that its military wing is inseparably fused to its political wing. As such, many, if not all, of its political members are combatants as well.

But Palestinians who are not members of Hamas are civilians (or combatants as members of other milatant groups such as Islamic Jihad). Those includepeople who support Hamas publicly or those who voted for Hamas. Given the very high exit costs in Gaza, civilians were faced with an election in 2005 between a corrupt Fatah and a belligerent Hamas, and the fact that most chose Hamas does not make them anymore combatants than the fact that a majority of Americans voted for Bush in 2004 makes them fair game because of the war in Iraq. While there is a fair degree of grey area here, support for combatants does not make one a combatant.

To keep this post short, I will deal with the proportionality issue in the next post.

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