Contextualizing Proportionality Analysis? A Response to Schmitt and Merriam on Israel’s Targeting Practices

In a recent post on this blog, Michael Schmitt and John Merriam discussed Israel’s compliance with international humanitarian law (IHL), based on their recent visit to Israel and discussions held with IDF legal advisors and commanders. Significantly, they identify two unique factors that influenced the Israeli response against Hamas in Gaza. First, they allude to “the extraordinary degree to which the Israeli population views itself as ‘under siege,’” since both Hamas and Hezbollah “possess vast quantities of cheap, widely available, and highly inaccurate rockets that they regularly launch at Israeli population centers.” As a result, the destruction of rockets and rocket-launchers may have a high degree of “anticipated military advantage.” Second, they refer to the “pervasive fear of IDF soldiers being taken prisoner and used to exert strategic leverage over Israel” as a potentially relevant factor in the proportionality analysis.

It seems to us that Schmitt and Merriam raise two related points of a general nature: One, that when assessing the proportionality of any specific military attack, broad strategic considerations, such as the effect of rocket stockpiles on the Israeli public’s siege mentality can be factored into the legal equation; and two, that proportionality analysis may take into account public perceptions and particular cultural sensitivities, such as the strong aversion of many Israelis to confronting prisoner exchange situations. We respectfully disagree with both points.

Considering broad strategic considerations

Assessing proportionality in IHL is a notoriously difficult task, involving the indeterminate weighing of open-ended and frequently subjective standards, values, and predictions about future events. However, it appears to us that proportionality analysis should hinge on a tactical decision reached by the relevant decisionmaker (who may occupy a position in the military chain of command ranging from a low-ranking soldier to the Chief of Staff or Minister of Defense). In such cases, IHL requires that collateral damage to civilians and civilian objects would not be excessive in relation to the “concrete and direct military advantage” of the specific attack (which may, however, be assessed in light of the overall military operation).

Still, Schmitt and Merriam appear to allow for the possibility that a proportionality analysis would include the weighing of broad strategic considerations, such as the impact of Hamas’ rocket infrastructure on the Israeli public’s view of itself as being under “siege.” However, including such considerations — which appear to be neither concrete nor direct, nor strictly military — in the balance between military necessity and humanitarian interests not only renders an already difficult exercise of weighing competing interests hopelessly ambiguous; it also runs the risk of conflating the “big picture” strategic jus ad bellum with the “isolated attack” tactical jus in bello proportionality analysis. Furthermore, by referring to broad policy objectives, such as addressing public views, the contextualized approach places a much too heavy burden on soldiers and field commanders, and deprives them of the ability to exercise discretion in relation to the specific attack which they plan to conduct on the basis of more grounded factors, which may be within their professional grasp. As a result, we fear that accepting Schmitt and Merriam’s strategy-based, contextualized approach to proportionality analysis would render the legal exercise meaningless and inoperable.

It may be noted that both of us have also been following closely — literally from close range — the operations of the IDF during Operation Protective Edge. We have not seen, however, any evidence that Israeli officials have claimed or acted upon a claim that the long-term strategic threat posed by Hamas rockets provides the IDF with more latitude in applying IHL proportionality analysis than would otherwise be the case. In fact, one could have argued that such strategic considerations point in the opposite direction: Since Israel was able to deploy a highly effective defensive weapon system to block Hamas rockets (the “Iron Dome” system), a contextual proportionality analysis would probably require a more exacting evaluation of the military necessity of neutralizing such rockets. Still, we would argue that these strategic considerations are also irrelevant under IHL, and that all that can be expected from decision makers on the battlefield is an assessment grounded in the factors directly tied to the specific operation they are conducting.

Using cultural-relative factors

The second point touched upon by Schmitt and Merriam seems to us to be even more problematic. To recall, they implicitly claim that certain cultural factors — such as Israel’s exceptional aversion to loss and capture of soldiers — may be factored in when assessing the proportionality of Israel’s response. Hence, the fact that Israel has exchanged in the past hundreds of Palestinian prisoners for one kidnapped IDF soldier can purportedly allow Israel to use more fire power, when aiming to thwart a kidnapping, than militaries that apply other “exchange rates” with regard to kidnapped service members such as, say, the US military. This is however a most risky proposition, which ties the application of IHL to controversial theories of culture relativism. What’s more, it runs counter to the basic thrust of modern IHL, which channels military power to narrow and objective war aims. Such aims are the weakening of the military force of the enemy and the disabling of the greatest possible number of soldiers under the 1869 St. Petersburg Declaration, and the definitive military advantage related to the object’s nature, location, purpose or use, under the 1977 First Additional Protocol.

Opening the door to contextualizing military advantage in light of the unique historical traumas of the affected civilian population or to the unique value assigned to soldiers’ lives in the relevant society would introduce an extremely subjective element into the analysis, which would render IHL less predictable, and would complicate to a large degree its equal applicability to all parties to the conflict (i.e., as such parties may have more or less traumatized or risk averse populations). It may also reintroduce into the proportionality equation discredited notions such as the military value of general deterrence, which also address traumas and risk aversion. Hence, even if Israel’s military adversaries are keen to exploit Israeli sensitiveness to kidnapped soldiers, it is difficult to accept that this should have any effect on the enemy’s civilian population. Put differently, it is not clear to us why the civilian population affected by Israeli military operations should incur the additional burden of a contextualized proportionality analysis and be punished thereby for the culturally based strategic choices of the two clashing militaries and governments, above and beyond the burden associated with a narrower tactical proportionality analysis.

To illustrate, we would like to discuss specifically one incident that received considerable domestic and international attention during Operation Protective Edge — the August 1, 2014 incident in Rafah (referred to in the Israeli media as “Black Friday”). Fearing that Lt. Hadar Goldin had been kidnapped (and not killed on the spot, as was later discovered), the IDF allegedly employed massive firepower in order to block the suspected kidnapers’ escape route. It has been claimed by various media sources that this live “fire screen” resulted in dozens of civilian casualties. While we do not possess the information that would allow us to evaluate whether excessive force was in fact used in this incident (the events of August 1, 2014 in Rafah are currently under an investigation by the Israeli Military Advocate General), it is clear to us that any attempt to justify the scope of the collateral damage incurred in Rafah by invoking the “national trauma” that Israel underwent when it freed more than one thousand convicted Palestinians in exchange for Corporal Gilad Shalit, is doomed to fail. The willingness of Israel to exchange one Israeli soldier for hundreds of Palestinian militants does not mean that Israel can generate large-scale collateral damage among Palestinian civilians in order to avoid future prisoner exchanges.

In summary, war aims could and should influence the manner in which force is deployed in and around the battlefield. From Clausewitz’s time onwards, we all know that military force is often deployed to attain political goals, and not merely military goals. As a result, tactical decisions, such as whether to employ the air force or the infantry in a given armed conflict scenario, or whether in the context of Operation Protective Edge Israel should have focused its effort on destroying the Hamas tunnels or its rocket infrastructure or reoccupying Gaza, would be inevitably affected by these broader concerns (see e.g., the ICTY OPT NATO Bombing report reaffirming the permissibility under IHL of high altitude aerial campaigns notwithstanding the risk of target misidentification they entail). Still, it would be a significant dilution of IHL proportionality analysis if such policy considerations were to be calculated within the IHL framework above and beyond the tactical discretion held by armed forces in relation to the selection of means and methods of attack. In short, we believe that a contextualized proportionally analysis framework, which incorporates broad strategic and cultural sensitivities, risks obfuscating and skewing IHL proportionality analysis. 

About the Author(s)

Amichai Cohen

Professor, Faculty of Law at the Ono Academic College, Israel., and senior fellow at the Israel Democracy Institute, where he is the director of the Amnon Lipkin-Shahak program on National Security and Democracy.

Yuval Shany

Hersch Lauterpacht Chair in International Law and Former Dean of the Law Faculty of the Hebrew University of Jerusalem, Member of the UN Human Rights Committee, Senior Research Fellow at the Israel Democracy Institute