The reliance on death tolls to determine the propriety of Israeli military action is more than a little problematic
By JONATHAN ROSENBLUMjonathanrosenblum88(photo credit: )
European criticism of Israeli military responses to attacks upon Israel and its citizens has become so formulaic that the various EU officials and foreign ministers can probably recite it in their sleep.
First comes a ritualistic acknowledgment of Israel's right to defend itself, followed inevitably by the accusation that the particular Israeli response was disproportionate. So automatic is the second statement that it completely vitiates the first.
The Europeans never bother to explain what response they would consider proportionate, or how those actions would obviate the threats to Israel's civilian population. After the Sbarro bombing, for instance, would the proportionate response have been to send an Israeli suicide bomber into a Ramallah pizzeria?
How do the Europeans know that Israel's actions are disproportionate? The "asymmetry in the reported death tolls," explains The New York Times's Steven Erlanger, in a July 19 news story. In short, there are too few dead Jews.
THE RELIANCE on death tolls to determine the propriety of Israeli military action is more than a little problematic. First, it turns warfare into a weird kind of boxing match in which you can only hit your adversary as hard as he hit you. That is not how either boxers or nations fight.
American UN ambassador John Bolton rightly ridiculed the European view of proportionality earlier this week. If Hizbullah kidnaps two Israeli soldiers, he asked, does that mean Israel can do nothing more in response than capture two Hizbullah operatives?
Something close to that view does, in fact, prevail among critics of Israeli military action. News stories denigrate the destructive capabilities of Palestinian weapons, for instance, and downplay the impact of those weapons on Jews living under their threat. Thus the Times's Erlanger quotes a Gaza resident who characterizes Kassams as nothing more than "needle pricks," even as he insists on the Palestinians' inalienable right to continue delivering those needle pricks.
To limit Israel's response to such "needle pricks" - actually it is usually far less, since Israel would never fire Kassams into Beit Hanun - constitutes an open invitation to aggressors, since they know in advance that they will never pay a higher price than the damage they inflict.
A MERE count of body bags further ignores the fact that those bags have a provenance. Many other questions have to be asked - for example, are the bodies those of combatants or civilians? If they are of civilians, were they killed because the enemy embedded military targets among the civilian population?
It is also relevant to know who started the fighting. How many Lebanese would have been killed by Israel in the past two weeks if Hizbullah had not attacked Israel within its internationally recognized border?
(Lebanon is not, incidentally, a completely innocent bystander to Hizbullah terrorism. For one thing, it is the internationally recognized sovereign in the area from which Hizbullah operates. In addition, at a recent Arab League gathering of foreign ministers the Lebanese foreign minister introduced a resolution implicitly endorsing the pretexts with which Hizbullah justifies attacks on Israel - i.e., Israel's retention of the Shaba Farms and the holding prisoner of Lebanese nationals who have murdered Israeli citizens in terror attacks.)
Reliance on body-bag counts is misplaced for another reason as well. Neither diplomats nor journalists have the ability or inclination to verify claimed body counts.
Four years ago, the European press recited without challenge Palestinian claims of a cold-blooded massacre in Jenin of 500 or more civilians. The true number of Palestinian civilians killed in intense house-to-house fighting was less than 30.
WERE THE law to proclaim body counts the standard of proportionality, the law would be, in Mr. Bumble's words, "an ass." That, fortunately, is not international law. Luis Moreno, chief prosecutor of the International Criminal Court, has written that "the death of civilians during armed combat does not itself constitute a war crime."
Nor is proportionality measured by how many casualties the enemy has inflicted. Rosalyn Higgins, president of the International Court of Justice, writes that proportionality is not judged "in relation to any specific prior injury [but rather] in relation to the overall legitimate objective of ending the aggression."
Proportionality, then, is a function of the goal of thwarting aggression against a state's territory or citizens. Where the aggressor, like Hizbullah, will never surrender or lay down its arms, and where its explicit goal is to kill every Israeli citizen, Israel is obviously entitled, under Higgins's standard, to respond with great force indeed.
Unfortunately, diplomats and journalists, for whom the term "proportionality" comes trippingly off the tongue, consistently overlook the fact that it is a legal term with a specific (albeit not absolutely clear) meaning.
The reason international law recognizes no such rule as "Thou shall do to thine enemy no more than thine enemy has done to thee" is that no nation in the world has ever acted according to such a formula.
To bring about the unconditional surrender of Germany and Japan in World War II, the Allies mercilessly bombed German cities and dropped nuclear bombs on Hiroshima and Nagasaki, killing hundreds of thousands of civilians. The latter deaths were justified at the time as necessary to prevent the loss of hundreds of thousands of American soldiers in a land assault on Japan.
More recently, NATO bombers struck at Yugoslavia over 72 straight days, killing approximately 500 civilians, even though Slobodan Milosevic did not threaten any NATO country. And many innocent civilians have been killed by American bombers in both Afghanistan and Iraq.
I MENTION these facts not so much to point out the hypocrisy of Israel's critics (with the exception of the contemptible French, who flew 10 percent of the NATO missions against Milosevic and regularly vote for UN resolutions condemning Israel's disproportionate responses), but rather to suggest the inevitability of error when the bombs start dropping, as in the case of Yugoslavia.
And Hiroshima proves the general rule that no nation ever values the lives of its citizens equally with the lives of enemy civilians. Israel, which has never deliberately targeted civilians, has neither the duty, nor right, to be the first.
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