Posted by Paul Cassell:
What Does "Proportionality" Mean In Gaza?
http://volokh.com/archives/archive_2009_01_11-2009_01_17.shtml#1232039052
My colleague Amos Guiora has an interesting op-ed on the situation in
Gaza, focusing on the question of how the concept of proportionality
should apply in a situation where the combatants (Hamas and Israel)
have disproportionate power. Here is the core of the argument:
Israel and Hamas have disproportionate weapons available to them.
The IDF has planes, helicopters, tanks, artillery and patrol boats.
Hamas has Kassam and Grade missiles. What needs to be asked as a
matter of international law is whether the available,
disproportionate weapons are used proportionally. With regard to
the current situation in Gaza, proportionality must be viewed from
two perspectives: the threat posed and how is that threat posed.
The threat posed is to a million innocent Israeli civilians - Jews
and Arabs - living within a 40 km (25 mile) radius of the Gaza
Strip. The threat is actual and has been realized. There have been
fatalities, injuries, damage to property and general disruption of
daily life within Israel. How this has occurred is critical in
understanding Operation Cast Lead in the context of collateral
damage. It has occurred because of a broadly-based Hamas
infrastructure.
In declaring war on Hamas, Israel has deliberately left undefined
the degree to which an individual must be affiliated with Hamas in
order to be categorized as a legitimate target. The consistent and
constant bombing of southern Israel over a number of years required
a broadly based and highly developed infrastructure. Such an
infrastructure enabled the digging of many tunnels, the building of
weapons and their storage and the firing of thousands of missiles.
In contrast to the traditional model associated with the suicide
bombing infrastructure predicated on the individual bomber, the
planner, the driver and the financier, the Hamas rocket firing
infrastructure is inherently broader.
By expanding the definition of �legitimate target,� the IDF has
narrowed the definition of �collateral damage.�
This new paradigm presents enormous risk, for it invariably leads
to the photographs that have caused Israel significant damage in
the court of international opinion. The visual images from Gaza
during the last two weeks are far more powerful than any
spokesman�s words.
However, Israel declared war on an organization, and by extension
on all those involved in that organization � active and passive
alike. That is precisely how Operation Cast Lead is different from
all previous Israeli operations.
While self-defense (in the classic model) is the legal basis for
Cast Lead, the IDF�s re-articulation of proportionality and
collateral damage is a new development in international law. How
this new paradigm is implemented in the Gaza Strip is the essence
of the issue. It means that the IDF is conducting an aggressive
policy directed at Hamas. It suggests expanding the number of
legitimate targets and broadening the definition of �military
necessity�.
It does not � and must not � mean that all Gazans are legitimate
targets. Israel�s Defense Minister declared war on Hamas, not on
Gaza. The IDF must minimize collateral damage; to do otherwise is a
violation of international law.
Further, Israel must not ignore its international humanitarian law
obligations. To do otherwise is a violation of international law.
The three-hour respites from aerial attacks to facilitate attending
to humanitarian needs represent an attempt to balance between
humanitarian obligations and operational necessities. However, the
essence of the Israeli policy � the rightness or wrongness of which
must be debated � is that declaring war on an organization that has
fired more than 6,000 rockets into Israel since 2005 justifies
enlarging the definition of legitimate targets and therefore
narrowing the definition of what is considered collateral damage.
You can read the whole piece [1]here.
References
1.
http://jurist.law.pitt.edu/forumy/2009/01/legal-aspects-of-operation-cast-lead-in.php
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