proportionality

Proportionality and the Crime of War

Last week, I looked at one (failed) attempt to excuse Israel’s actions in Gaza by redefining proportionality more or less out of existence. But, as I said then, those opposing the war on just war grounds haven’t always gotten things right, either. By way of reminder, here’s the Atlantic’s Andrew Sullivan:

In the history of the West, the laws of war are clear enough. You do not launch a just war if it leads to greater evils than the status quo ante. There must be a reasonable proportion between means and ends.

If you’re a Catholic still wedded to the just war doctrine of Aquinas, then proportionality is indeed a relevant factor. But it’s not really so clear that Aquinas is right to think that proportionality is a jus ad bellum concern.

I, however, am far more drawn to Michael Walzer’s legalist paradigm account of jus ad bellum (Daniel’s complaints notwithstanding). In Just and Unjust Wars, Walzer uses what he terms “the domestic analogy” to make the argument that war is an international version of a crime. Walzer argues that when a state willfully violates the territorial integrity or political sovereignty of another (i.e., goes to war), then that first state has committed the international equivalent of a mugging. It has, in effect, said “Your land (or your resources or what have you) or your life.”  The crime of war, in other words, is aggression.

But this account has an interesting feature. If aggression is a violation of the rights of a state (and, by extension, of its citizens), then there is, as Walzer says, “a presumption in favor of military resistance once aggression has begun.” That’s because resistance to aggression is an international act of law enforcement. If aggression is a crime, then it is always permissible (and perhaps even obligatory) to punish that crime. Military resistance, whether in defense of oneself or on another’s behalf, is presumed always to be a morally justified response to aggression.

On this view, proportionality isn’t relevant to jus ad bellum considerations. The justice of a war turns entirely upon the notion of aggression; the aggressor is morally in the wrong, and the victim of aggression is always justified in fighting in self-defense.

But of course that’s horribly oversimplified. Because, you see, proportionality does matter. It just doesn’t matter in the way that Sullivan thinks it does. Rather, proportionality is relevent to the way in which we fight a war. If the local bully punches me in the nose, I’m justified in hitting back. And if we change the bully into a thug who is trying to do me serious bodily harm, I might even be justified in using lethal force to stop him. I am not, however, justified in beating up the bully’s sister as a way of making him stop. Nor can I blow up the thug’s house or shoot up his neighborhood. My response has to be (more or less) proportional to his. And it must be limited (to the extent possible) to attacking only the bully or the thug. I can’t indiscriminately target bystanders.

The same holds true for war. I might be justified in resisting aggression, but that justification doesn’t give me carte blanche to wantonly destroy my enemy’s family or lay waste to his land. And that’s where the concern about Israel’s actions in Gaza come in. While it might have worked for the Israelites, in 2009 nations can’t just go around slaughtering women, children, and sheep; stealing all the gold; or burning cities to the ground. To do so is a war crime, a violation of jus in bello.

But that, of course, brings us to an interesting question. What happens if the nature of a particular war makes it impossible to fight a just war in a just manner? Or, to ask the question another way, does a nation’s right to respond to aggression with military force go away if the only military options all involve huge numbers of civilian casualties? It’s a good question. And one to take up in my next post.

Proportionality and Fallacies

Israel’s war in Gaza has once again proved what all just war theory scholars know: people only pay attention to just war theory after a war has begun. Still, recent discussions about the justice of Israel’s war are useful, even if belated.

Much of the conversation has centered on the question of proportionality. Andrew Sullivan, for example, writes that

You do not launch a just war if it leads to greater evils than the status quo ante. There must be reasonable proportion between means and ends.

Sullivan goes on to argue that, contra the requirements of the Catholic Catechism, Israel’s war creates more evil than anyone can reasonably expect it to alleviate. The American Prospect’s (decidedly non-Catholic and non-conservative) Ezra Klein echoes Sullivan’s concern, writing

There is nothing proportionate in this [Israel’s] response. No way to fit it into a larger strategy that leads towards eventual peace. No way to fool ourselves into believing that it will reduce bloodshed and stop terrorist attacks.

Commentary’s Noah Pollak rejects this assessment, arguing that Sullivan relies upon an obsolete understanding of proportionality. Pollak, following Michael J. Totten, suggests that the U.S. military’s Law of Armed Conflict provides a better definition of proportionality, namely that it “prohibits the use of any kind or degree of force that exceeds that needed to accomplish the military objective.” Given that Hamas is still firing rockets into Israel, Pollak says, clearly Israel has not used more force than is needed to accomplish the military objective, and hence the war passes the proportionality test.

For starters, we should note that Pollak’s argument is fatally flawed. The logic of the proportionality rule runs as follows:

If a nation uses force that exceeds that needed to accomplish its military objective, then that nation has failed to act in a way that is proportional.

Pollak denies the first half of the conditional in order to conclude that Israel falls within the bounds of proportionality. But, of course, that move commits the logical fallacy of denying the antecedent. Pollak’s argument requires that we read the proportionality rule as saying

A nation fails to act in a way that is proportional if and only if it uses force that exceeds that needed to accomplish its military objective.

It’s far from clear, however, that proportionality can be limited in this way. It’s not that hard to see why this rereading fails. Suppose, for example, that Israel set as its military objective the elimination of all terrorist acts emanating from Gaza. Accomplishing that goal might well require killing not just every current terrorist, but also every potential terrorist. In other words, wiping out every single resident of Gaza might well be the only way of accomplishing a particular military objective. The problem with such a reading, then, is that it makes our definition of proportionality contingent upon a nation’s military objective. But what are we to say when we want to describe a military objective itself as not proportional?

All this is not to say that the Sullivan/Klein line fares much better. Indeed, the entire discussion of proportionality is a red herring, one that confuses jus ad bellum with jus in bello. But that’s a subject for another post next week.