Proportionality and the Just War

The objective of Joseph Maurer’s piece entitled “Justifying Self-Defense” was to critically engage with Professor Chomsky’s recent talk on the Gaza conflict. Maurer’s targets also include those who have expressed concern regarding Israel’s alleged violation of the principle of proportionality, a concern that “has been screamed ad nauseam by many of Israel’s staunchest foes.”

Most of us in the MIT community share his annoyance with partisan critics who trumpet slogans when it suits their interests; more to the point, though, we also tend to react negatively to public discourse that tramples over our academic fields. Maurer should not be faulted for questioning Chomsky or for participating in an important debate. But his article makes three implications that would be troubling to most international normative theorists, those concerned with morals and ethics in world politics.

Before treating each of these three points in turn, let me say a few words about the basis on which we can judge military action. International law represents one source of guidelines. “Just war” principles, though they may not be codified in legal documents, provide a clearer way in to studying the rights and wrongs of warfare as opposed to its legality or illegality.

Standard just war theory separates between the just resort to war — satisfied by just cause, competent authority, right intention, reasonable hope of success, last resort, and proportionality — on the one hand, and the just conduct of war — satisfied by discrimination, necessity, and (again) proportionality — on the other. Just war principles are wed to practice and familiar to soldiers and planners. Arguing on the basis they provide helps to separate those factors that are morally relevant from contentious claims about history or allegations about the intrinsic flaws of one side or the other.

That proportionality must be considered both in the resort to war and in the conduct of war brings us to the first problem with Maurer’s article. His statement that proportionality is “the coward’s way of hamstringing a country when applied to war” runs counter to the entire just war paradigm, the same one we rely on when arguing that civilians should not be harmed or that opposing forces have certain obligations to each other. In Henry Shue’s words, the principle of proportionality lies “at the heart of the morality of war.”

Instead of excoriating the author on this point, it’s more helpful to show that his statement is the result of a common misunderstanding of proportionality. It is not simply that “the punishment fits the crime” — that “crime” to be explored below — or that equal numbers of soldiers or civilians are harmed on both sides.

Rather, the destructiveness of war, or of a single action in war, must not be out of proportion to the relevant good it will do. The relevant good to be done in the Gaza war was ending the threat posed by Hamas’s rockets. Efforts to add “the elimination of Hamas” or the like to this end of the scale must contend with moral justifications for regime change and preemptive force.

With that in mind, it seems that critics of the war have a legitimate claim given the level of death and destruction in Gaza compared to the 13 Israelis killed since 2001 by homemade projectiles. Most would argue that this holds true even if we include the psychological harm that many Israelis have endured — note that Maurer’s own argument that Israelis have become accustomed to evacuation, if valid, would serve only to strengthen the criticisms.

Maurer’s second problematic claim is that, because Hamas intentionally blends in with the civilian population, “civilian casualties result entirely from Hamas’s own barbaric actions.” The implication here is that Israel is absolved of civilian deaths. Hamas indeed violates principles of just conduct by endangering civilians in this manner. How, then, can Israel be guilty of any wrongdoing when civilians die?

The language of causation does not really help to answer this question. One must look again to the proportionality requirement for just resort — that which must be satisfied before a war is launched. It places the onus on belligerents to perform a moral cost-benefit analysis before taking action, to realistically weigh the likely damage against the achievement of the just cause. It was clear beforehand that Hamas would take advantage of civilians to exploit their physical defense as well as their public-relations case against Israel — not solely due to Hamas’s nature, but because of the empirical record of groups fighting this type of war.

Critics, then, have reason to argue that Israel’s commencement of the campaign all but ensured damage to non-combatants that was both foreseeable and disproportionate with respect to its just cause. One does not have to ignore Hamas’s violations to recognize that Israel may be culpable: responsibility for civilian suffering is not zero-sum.

For a defender of the resort to war in Gaza, a possible escape from this discussion is to question the innocence of Gazan civilians, and this represents the third problem with Maurer’s piece. “War broke out when [Hitler and Hirohito] broke out of their borders,” he writes. “Residents of Gaza can vote any way they want, but when their rulers start lobbing rockets outside of their borders, they must anticipate a deserved reaction from the infringed-upon party.”

I pause here to point out that, in a historical sense, it might not be prudent for a defender of Israel to argue that encroachment beyond borders somehow makes residents deserving of violent reaction. But I want to focus more attention on the implication that civilians are liable to be killed due to who they elect.

The principle of non-combatant immunity, integral to the discrimination requirement that deals with the identification of legitimate targets, is not in place simply to shield the “innocent.” Instead, it forces belligerents to ask, “who needs to be harmed now in order to stop the harm that is already underway?”

Some theorists also leave room for preemption under certain conditions.

The point is that civilians retain their immunity even though they may be more guilty than combatants in bringing about an unjust threat. To draw again on Shue, “execution-by-B-52 is not the appropriate penalty for bad politics.” By this same argument, we reject outright bin Laden’s assertion that killing American civilians is permissible because “they pay taxes to their government and they voted for their president.” Maurer’s view of war as punishment for a given polity is a relic of medieval Western philosophy.

Further, though Hamas’s statements and actions are truly appalling in many respects, we must be careful in heaping scorn on Gazans for electing them. NATO officials in Afghanistan will attest to the fact that popular support for the Taliban owes more to the reprehensible group’s ability to provide basic security than it owes to ideological sympathy. Similarly, Hamas’s administration of critical infrastructure and social services in the midst of awful living conditions in Gaza may be the biggest reason for the group’s electoral success.

I hope that the above has drawn attention to just war thinking and demonstrated why even those claims voiced carelessly by partisan critics may hold water. I can’t help but think that Professor Chomsky’s polarizing style makes it difficult for supporters of Israel to engage with criticism without being clouded by defensiveness. At the same time, Maurer and others should consider that I did not touch on other issues with the Gaza war based on arguably low chances of success, dubious satisfaction of the `last resort’ condition, and alleged violations in just conduct. Nor did I mention the compelling case to be made that the campaign was not in Israel’s best interests given the nature of the threats it faces.

The controversy is not centered on the validity of Israel’s appeals to self-defense. Instead, the affair seems to fit into a class of tragic situations identified by Jeff McMahan in which the issue “is not that our aim would be too trivial to constitute a just cause; it is, rather, that our just cause would be too trivial for war to be proportionate.”

Omar Bashir, B.S. ’05, M.S. ’07 in Course XVI, is now a graduate student in International Relations at the University of Oxford.