Proportionality and the use of force

There are a number of interesting articles and posts on proportionality and the use of force with particular emphasis on the current situation between Israel and Hezbollah in the Middle East.

The first article is from old, old friend (and noted jurist) Mary Ellen O’Connell. Mary Ellen presents a background for understanding the international law of the use of force and concludes that Israel’s use in this case is disproportionate.
In Kenneth Anderson’s excellent post on proportionality in how war is conducted he provides additional background information.

Rob Driscoll of The Remedy directly addresses Mary Ellen’s positions and introduces the fundamental concept of the “unjust peace” into the discussion. This concept is the underpinning of Just War theory.

Under international law do states have affirmative responsibilities to maintain a monopoly on the use of force i.e. to be states? I’m not qualified to comment on the jurisprudential aspects of this question but if the answer is “No”, then “the law is an ass”. Is international law i.e. the law between nations applicable here? Or should we be turning to whatever principles govern the treatment of ungoverned regions?

This is, I think, a basic issue in coming to terms with much of what is going on in the world today. What is a state to do when attacked from an ungoverned region? Are the attackers to be treated as though they were a state actor? That line of thought seems to me to be very perilous.

In my view although I believe that Israel erred in its response to the border incident which touched off the current hostilities and its actions were disproportionate if view solely as a response to that incident when viewed in context I believe that Israel’s decision to go to war was justified. The justification of Israel’s conduct of its war to date remains to be seen. I think we simply don’t know enough.

Don’t point me to pictures of dead bodies or poorly substantiated stories of atrocities: context is vital in these cases. A picture does not reveal how a person was killed or who they were or whether they were standing in a munitions storage facility when they died. A story of atrocity is, nearly without exception one-sided and lacking in context.

My concerns have been and continue to be that while pursuing its legitimate right to survive Israel may overstep into non-justifiable actions and that the continuing escalation of the hostilities may draw us all into a war that should not be fought.

2 comments… add one
  • The problem with waging proportional war is that war is rarely, if ever, resolved. One side must be disproportionate for there to be a lasting cessation of hostilities. There must be a winner. Hopefully, as in WWII, the victors will be benevolent, and the losers will be humble and ready for rehabilitation.

    While the world has become used to this principle without a doctrine, we plow ahead through unending war because wars are no longer resolved. The very idea of victory is anathema to a large part of the world, while another large part sees victory on their terms (global fundamental Islam, etc) and realize that they are stuggling against a lackadaisical foe that shrinks from seeking victory.

    We see this morning the playing out of this yet again. Syria is now calling for a ceasefire and Hizb’allah is asking the Lebanese government and a “third party” to negotiate a prisoner swap. To me, this is more distressing, because time and again, we accept these tactics and are then shocked when it repeats. And repeats. To paraphrase that great philosopher Steve Martin, we are so naive.

  • quantum Link

    why in the world would anyone want to fight a “proportional” war? The whole point of warmaking is to use DISPROPORTIONATE force to gain victory. The fact that Israel hasn’t achieved its objectives — which are utterly legitimate — to get back its soldiers and force a terrorist militia to give up its weapons — means that they should be using more force, not less. This “lawfare” is an absurd capitualtion to the logic of the terrorists — they exploit Western notions of just war while, of course, their entire reason for being is war crimes — targeted assaults on civilians.

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