Proportionate response

The concept of proportionality in constitutional law determines fairness and justice in establishing the proper balance of legal restrictions governing corrective measures.

December 13, 2014 21:51
3 minute read.
Beach-goers look at explosions

Beach-goers look at explosions as the Iron Dome anti-missile system intercepts a rocket fired from the Gaza Strip, over Tel Aviv, in July.. (photo credit: REUTERS)

When someone initiates an attack against you, a proportionate response is said to be one that suffices to prevent further attacks. When critics of Israel’s response to thousands of Hamas rocket attacks from Gaza during Operation Protective Shield accused it of a disproportionate response, they were mainly referring to the fact that fewer Israelis than Gazans died in the conflict, ignoring the fact that such deaths were the unavoidable result of Israel’s attempt to defend itself and to halt terrorist attacks.

The IDF’s counterattacks were undertaken with caution that included efforts to minimize civilian casualties, even warning possible collateral victims before responding to a Hamas barrage. In military terms, the achievement of a more or less binding cease-fire after 50 days of strife is proof that Israel’s response was indeed proportionate: it stopped the violence.

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Would that things were so clear-cut in the world media’s treatment of the ongoing conflict with the Palestinians. This is dominated by biased attacks on Israel that reflect another kind of disproportion: one that focuses on Israel’s alleged misdeeds while ignoring far greater crimes against humanity by numerous other nations.

The concept of proportional response might actually have its origins in Jewish tradition, namely in the biblical doctrine of “an eye for an eye.” The sages taught that this was not to be taken literally, but represented a philosophy of compensation for injury – in other words, a proportionate response that came in answer to surrounding cultures that taught “a life for an eye” or “a family for a tooth.”

The concept of proportionality in constitutional law determines fairness and justice in establishing the proper balance of legal restrictions governing corrective measures. In criminal law, it seeks to ensure that the punishment fits the crime.

In armed conflict, it seeks to balance military necessity and humanitarian law.

It is a delicate balance, as demonstrated by the decision to drop atomic bombs on Japan, which some consider to have been disproportionate. But it worked. World War II was immediately brought to an end, sparing innumerable more lives.

Half a century later, the civilized world is engaged in battle against a well-armed cult of religious fanatics intent on ruling mankind by means of their particular corruption of Islam.

Islamic State has become infamous for its brutal atrocities, but an apparent devaluation of the concept of proportionality seems to have resulted in an acceptance of its beheadings, rapes, forced conversions and so on as the natural order of things, and little mention is made of its responsibility for its crimes.

As attorney Jonathan Wallace writes in his website, The Ethical Spectacle: “It is to the advantage of terrorist organizations to be regarded as viruses or weather, and Hamas, Hezbollah and al-Qaida long ago won this propaganda battle.” This is not just because of terrorists’ virus-like behavior – “they infiltrate political and geographical bodies” – but, this “makes them scarier and more powerful, and also completely lets them off the hook as human actors who can be held responsible for their choices.”

Islamic State will be defeated only by an overwhelming, disproportionate military response. Similarly, the organization’s fellow travelers, who continue to incite violence against Israel, must be defeated by an overwhelming response in the world of public opinion.

This is particularly challenging, in a global theater of communications where a conflict that destroyed some 2,000 lives generated more daily news coverage than a conflict in a neighboring country that has so far killed more than 200,000 and created some 2 million refugees.

But perhaps there is something inherently disproportionate about how the world treats refugees – for example, Palestinian refugees and Jewish refugees. According to the UN, about 700,000 Palestinians were displaced in the first war of aggression initiated by the Arabs against Israel in 1947. The world continues to ignore the fact that, during the same period, some 850,000 Jewish refugees were forced to flee from Muslim countries.

The initial ratio of Palestinian to Jewish refugees from 1948 has indeed grown out of all proportion: the United Nations Relief and Works Agency claims to care for some 5 million Palestinian refugees – the only fourth-generation refugees in human history. The Jewish refugees from the Muslim countries, on the other hand, became productive citizens of Israel and other Western countries.

The media did not lack for criticism of Israel during Operation Protective Edge, but where was the world’s message to Hamas that thousands of rocket attacks on civilians, not to mention suicide bombings, were disproportional?

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