|IDF tanks and a flag on the Gaza border 370.(Photo by: Ronen Zvulun / Reuters)|
Proportionality and self-defense
By ALLEN Z.HERTZ
There is no rule of either morality or law saying that a state is precluded from using force in defending itself.
Now more than ever – international law is akin to “an ongoing discussion about
rights” in which every government and NGO has its lawyers, and every law
professor an opinion. And today, there is certainly lots of “manufacturing” of
alleged new norms of public international law.
For example, the
“proportionality” doctrine is regularly distorted and willfully
The doctrine of proportionality does not require some
sort of a balance between Israel and Hamas dead, or some equivalence between the
deeds of Hamas and those of the Israel government.
Rather, in the context
of international humanitarian law, there must be proportionality between what
the Israel government actually does and what is reasonably required to prevent
the firing of Hamas rockets at Israel civilians and
Specifically, if the Israel government would be reasonably able
to prevent the firing of those Hamas rockets via measures that fall well short
of using nuclear weapons to obliterate Gaza, then the Israel government is
legally obliged to use those less drastic means that are likely to be kinder to
the civilians in Gaza.
However, international law certainly does not
require the Israel government to sit back and accept the firing of rockets at
Israel civilians and soldiers, just because measures to prevent that firing
would likely result in some collateral civilian injury and death in Gaza. And
here the reasoning is obvious: The Israel government has to choose between (A)
some Israel deaths (civilian and military) resulting from Hamas missiles hitting
Israel; and (B) some Hamas deaths (civilian and military) from Israel preventive
measures. In this context, the Israel government has to opt for (B) to prevent
(A). Any other decision would irrationally privilege the lives of Muslim Arabs
in Gaza over those of civilians and soldiers in Israel.
And here the
ancient rabbis would probably have agreed, because morally it is better for the
wicked to die than for the innocent to perish.
And make no mistake: From
a moral perspective, Hamas tends to implicate the adult population of Gaza in
its war crimes.
The civilian adult population of Gaza is probably
directly or indirectly to some degree morally complicit in the willful
aggression of Hamas, which the Muslim Arabs of Gaza clearly supported in the
2006 Palestinian elections, and which they probably continue to back even today.
For example, pollsters tell us that Gaza’s adult population specifically
endorses the notion that rockets be targeted at Israel civilians, which is a
flagrant war crime.
By contrast, there is simply no rule of either
morality or law saying that a state is precluded from using force in
self-defense, which is truly a fundamental principle of modern public
international law. The state has a moral and legal right to use force in
self-defense, even though that recourse to force is likely to cause some
collateral civilian injury and death. And never forget that, with respect to
Gaza, the Israel government acts not by way of retaliation or punishment, but
for prevention, i.e. to stop the launching of the Hamas missiles and thus to
prevent more Israel civilians and soldiers from being killed.
Nor can the
Hamas war crime of intentionally targeting Israel civilians be justified by an
alleged Palestinian right of “resistance,” i.e. an alleged right to wage a war
of national liberation against Israel.
Even if we accept the false
hypothesis of such a Palestinian right to wage a decolonization war, that right
to wage a war of national liberation would not extend to the intentional,
indiscriminate targeting of Israel’s civilian population, which would still
remain a war crime.
But, turning from hypothesis to history – Israel is
not colonial in character. Of all extant Peoples, the Jewish People has the
strongest claim to be aboriginal to the land between the Jordan River and the
Mediterranean Sea, where some Jews have lived in each and every year since the
ethnogenesis of the self-identified “Jewish” People in the 6th century
Around a half-century ago, a Muslim Arab population generally chose
to self-identify as “the Palestinian People” for the first time. The
self-determination rights of this newborn Palestinian People must now be
peacefully reconciled with the aboriginal, treaty and self-determination rights
of the much older Jewish People. For this reason, the newly self-identified
Palestinian People lacks a right to wage a decolonization war against the Jewish
People, whose presence in the Jewish aboriginal homeland is both moral and
The writer was senior adviser in the Privy Council Office serving
Canada’s prime minister and the federal cabinet. He studied European history and
languages at McGill University (BA) and then East European and Ottoman history
at Columbia University (MA, PhD).