The End of Proportionality
July 31, 2009
The 2006 Israel-Lebanon war generated the first large-scale and systemA,A!ic references to a heretofore mostly ignored law of war concept, the doctrine of proportionality. Occasional references to proportionality are found in accounts of the Iraq War and in histories or scholarly works of the last century. In general, prior to Israel's 2006 campaign the proportionaliA,A!ty doctrine received little scholarly interest and even less attention among the governing classes and international media.1 In all likelihood, critics of American action in Iraq or Afghanistan would have more thoroughly emA,A!ployed this doctrine in their efforts to end or limit US military involvement had they simply thought of it. But by 2006, when the doctrine was widely known, the major battles in Iraq and Afghanistan were finished.
Israel's December 2008 to January 2009 campaign in Gaza renewed drumbeat accusations in the media and from much of the international comA,A!munity that the Israel Defense Force (IDF) used disproportionate force against Palestinian terrorists and guerrillas. The George W. Bush AdminisA,A!tration expressed concern for innocent civilians caught in the crossfire but resisted labeling Israeli actions as disproportionate. President Bush generA,A!ally defended Israeli actions and declined to join the European Union and even close allies such as the United Kingdom in labeling Israel's tactics as disproportionate.2 A year before the Gaza offensive, in February 2008, then-Secretary of State Condoleezza Rice declined a reporter's invitation to label Israeli retaliatory action as "disproportionate."3
This is a sound policy that the Obama Administration would be well advised to follow. Though American military action in Afghanistan or Iraq has not yet received comparable condemnation (at least on grounds of "disproportion"), it is only a matter of time before this occurs, as soon as a fight is significant enough to warrant it.
There is little difference in the operaA,A!tional practices used by the Israeli and American militaries, which not only share many weapon systems but also elements of tactics and training.4
American doctrine does acknowledge the concept of proportionalA,A!ity. Field Manual (FM) 27-10, The Law of Land Warfare, specifies, "Those who plan or decide upon an attack, therefore, must take all reasonable steps to ensure that the objectives are identified as military objectives or defended places within the meaning of the preceding paragraph but also that these objectives may be attacked without probable losses in lives and damage to property disproportionate to the military advantage gained."5 The reference to the manual's preceding paragraph (Chapter 2, Paragraph 40) is noteworthy. There the list of acceptable targets is rather broad, including defended cities and towns, factories, warehouses, ports, railroads, and other places that offer an enemy a military advantage or accommodation, all venues that by their very nature could have large civilian populations.6 The proportionA,A!ality rule does not negate attacks on such facilities so long as a reasonA,A!able military necessity exists and that necessity can be reasonably balanced against anticipated civilian casualties.
The problem with the proportionality rule is its frequent and remarkA,A!able misinterpretation. The extent of this confusion is so great as to severely limit the utility of this law of war concept as presently structured. As both the Lebanon and Gaza campaigns illustrate, the doctrine is subject to disA,A!tortion to the degree that applying it is actually harmful to the conduct of lawful and legitimate military campaigns.7 As a practical matter, invoking the doctrine confuses important issues and undermines respect for the law of war. Michael Walzer, one of the most prominent ethicists of war and its consequences, notes that false claims of disproportion typically have the effect of justifying excessive violence, which he characterizes as a "dangerA,A!ous idea."8 This article will propose the elimination of proportionality as a law of war concept, at least by the American military. Existing doctrine, standards, proscriptions, and ethical guidelines are more than sufficient to govern proper conduct in combat without descending into the semantic, legal, and ethical miasma of proportionality.
French President Jacques Chirac echoed this, calling Israel's response "disproportionate" in a Bastille Day speech.10 Then-United Nations Secretary General Kofi Annan joined in acA,A!cusing Israel of "disproportionate use of force."11 Amnesty International promptly accused Israel of "war crimes," including, among other things, "disproportionate attacks."12
It is likely that the "disproportionate force" reaction arose when and how it did because governments, organizations, and people that reflexively find fault with Israeli military operations had little else to criticize in July 2006. Israel was clearly a victim of an act of war. Because Israeli forces had withdrawn from Lebanon to the United Nations-sanctioned international border, the usual Arab militant claims of "resistance to occupation" did not hold. The IDF, while using significant firepower, was not using it indiscrimiA,A!nately. Indeed, the Israelis used up some types of guided munitions, so intent were they on limiting civilian losses. Lebanese civilians were inadvertently and mistakenly killed and injured, but not excessively by historical stanA,A!dards. The number of losses reported by Lebanese authorities is subject to considerable doubt, as casualties suffered by Hezbollah fighters and active supporters were not distinguished in the total from actual civilians; all HezA,A!bollah losses were classified as civilian deaths.13
For Israel's critics or those suspicious of western military operations in general, these were uncomfortable facts. Israel's operational response in Lebanon appeared, prima facie, fully justified. Rather than allowing themA,A!selves to be stymied, critics took up the claim of disproportion with alacrity and little regard to traditional concepts of international law or logic. In genA,A!eral, the more extreme critics argued that upon the death of the first Lebanese civilian, Israel's response had become disproportionate as only IDF soldiers fell in the Hezbollah attack, or that Israel's loss (eight dead, two captured) entitled it only to a limited counterattack.
More measured opponents of the operation claimed that Israel's campaign was insufficiently calibrated to the limited strength of its opponent, considering the IDF's apparently overA,A!whelming advantages in personnel, weapons, and technology.
Israel's recent Gaza campaign immediately brought renewed calls of disproportionate Israeli action, allegedly in violation of international law. These claims gained much traction in the international media and especially within transnational nongovernmental organizations, including the United Nations. Many of those groups are suspicious of, or overtly hostile to, any Israeli military action. As with the Lebanon war, Israel had a clear causis belli, and indeed had acted with considerable-and some might say unprecedented-restraint in response to constant and indiscriminate cross-border rocket and mortar fire, openly and deliberately orchestrated by the Hamas regime in Gaza.14
Moreover, though Gaza is densely populated, improveA,A!ments in Israeli guidance systems, intelligence collection, and munitions, including small-diameter bombs, sharply reduced the legitimacy of claims that the IDF acted without discrimination.15
"Disproportion" can be seen as the leading edge of an effort to deleA,A!gitimatize any action by powerful western nations against weaker developing countries or nonstate actors. It is in the interest of the United States to generA,A!ally reject these claims, for should they gain further acceptance, American military action and doctrines might be seriously hindered in the future, with potentially grave repercussions.
The Law of War and Proportionality
The problem with proportionality as a law of war concept is twofold: It is subject to misinterpretation by the international media, nongovernmenA,A!tal organizations, and governments; and some of the most restrictive and logically twisted interpretations of the doctrine have a legitimate grounding in existing-albeit damaging-international law.
What the doctrine of proportionality does not do, contrary to its more misinformed proponents, is reduce warfare to a series of tit-for-tat attacks.
Israel was castigated for responding to indiscriminate rocket fire with preciA,A!sion air attacks, as if a "proportional" response-indiscriminate Israeli rockA,A!et fire-would be preferable and legal. After the assassination of Archduke Ferdinand in 1914 the doctrine of proportionality did not limit Austria-HunA,A!gary to counterregicide in response. The United States was not limited to striking a Japanese naval base in response to the attack on Pearl Harbor. In sum, the doctrine of proportionality has little relevance to causis belli or jus ad bellum (the justice of the cause under traditional just war theory). Nor does the doctrine limit in a legal sense the legitimate military objectives a belligerent may choose to pursue; it regulates in part, to the extent it limits anything, the manner in which military objectives are pursued, and this is certainly the sense in which it is used in modern treaties.
The modern doctrine of proportionality appears as a law of war conA,A!cept in the 1907 Hague Conventions wherein belligerents are forbidden to seize or destroy enemy property unless "imperatively demanded by the neA,A!cessities of war."17 Proportionality is thus implied, but not delineated. The Geneva Conventions of 1949, although they prohibit destruction of enemy property by an occupying power except where destruction is "absolutely necessary for military operations," do not specifically discuss proportionalA,A!ity either.18 As noted, the Army's Law of Land Warfare manual, FM 27-10, interprets these provisions in Chapter 2, Paragraph 41, distilling the prohiA,A!bitions into an order not to attack objectives unless it will not cause "probA,A!able losses in lives and damage disproportionate to the military advantages anticipated." This elaborated formulation is in accordance with the 1977 Protocols to the Geneva Conventions, to which neither the United States nor Israel is a contracting party. The Protocols define as "indiscriminate" and "prohibited" an attack "which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combinaA,A!tion thereof, which would be excessive in relation to the concrete and direct military advantage anticipated."19
The changes specified in the 1977 Protocols are subtle but imporA,A!tant. Disproportionate attacks are defined as indiscriminate, so that even a belligerent who uses discriminating but "excessive" force will have vioA,A!lated the provision. Losses which are merely "incidental" are defined as a war crime, and the list of incidentals is spelled out and by implication broadened. But a 1987 commentary on the Protocols published by the InA,A!ternational Committee of the Red Cross was the first to link proportionality with the 1977 provisions. The commentary notes that "the disproportion between losses and damages caused and the military advantages anticipated raises a delicate problem; in some situations there will be no room for doubt while in other situations there may be reason for hesitation
In such situation the interests of the civilian population should prevail . . . ."20 Thus, the benefit of the doubt may never go to the belligerent who is seeking a miliA,A!tary advantage. But the commentary then takes this formulation one step further, specifying that "the Protocol does not provide any justification for attacks which cause extensive civilian losses or damages. Incidental losses and damages should never be extensive" even if "the military advantage at stake is of great importance."
Loosely interpreted, the 1977 Protocols effectively ban any attack that may cause extensive civilian losses or damages, even if the attacker uses discrimination and the enemy hides its forces and assets within a civilA,A!ian population. Thus, a group like Hamas, simply by taking cover among civilians, might render itself immune from attack under the rules of proporA,A!tionality as defined by the Protocols.
To be sure, serious scholars and jurists do not necessarily interpret the concept so broadly, and as previously noted, neither the United States nor Israel signed the 1977 Protocols (though both nations basically seek to abide by them). The standard interpretation requires simply that a belligerA,A!ent use only the amount of force necessary to achieve a military objective, or use only that amount of force required within the bounds of military neA,A!cessity-which is basically what the Hague and 1949 Geneva Conventions provide. Furthermore, no reasonable interpretation of the doctrine says that a nation, having been given just cause to go to war, has to limit its objectives to the same level as the provocation. Such an approach does not attempt to define military necessity; presumably the leadership of the belligerent naA,A!tions will reasonably set a level of necessity. Still, the fact that broad and limiting interpretations of the doctrine can be broached within the 1977 Protocols is cause for serious concern.
Proportionality as a Military Doctrine
It does not make sense to waste military effort by applying more force than appears necessary to reach military objectives at an acceptable cost. Given that caveat, the doctrine of proportionality is sensible, but it is also close to self-regulating. Rational and effective military organizations recognize proportionality not only as part of the laws of war, but also as part of their own combat doctrine-except it is called economy of force. The idea surely began in antiquity but was articulated by Clausewitz in modern times as sensibly limiting a military operation to as few principal undertakA,A!ings as possible.
Economy of force is defined in US Army Field Manual 3-0, Operations, and requires that commanders "allocate minimum essenA,A!tial combat power to secondary efforts . . . . Commanders allocate only the minimum combat power necessary to shaping and sustaining operations so they can mass combat power for the decisive operations."
The British and Commonwealth armies call this principle economy of effort. The Soviet Union defined it as adapting the end to the means. HowA,A!ever identified, the principle holds that military forces should concentrate effort in the most rational, economic, and limited way, to free up resources for other undertakings. As such, it makes little military sense to use force or effort out of proportion to the objective sought, or beyond military necesA,A!sity. This holds true with or without the prescriptions of the laws of war. Rather, economy of force can be seen as a real-life application of utilitarian ethics as defined by the nineteenth-century philosopher Henry Sidgwick, who described the modern principle of proportionality as fighting "with as little mischief as is likely to be effective."
Armies occasionally violate this principle, but do so to their own disA,A!advantage. When they do it is usually in efforts that turn out to be mistakes. For example, the Allied carpet-bombing of Caen during the Normandy camA,A!paign was largely counterproductive. This air attack did little damage to the Germans, while creating a rubble-clogged defensive obstacle that Allied units had to overcome once they entered the bombed zone. The Allied air efA,A!fort devoted to destroying Caen lacked discrimination and might have been more effectively and economically applied elsewhere. Given the technology available, the strength and tenacity of the German forces, and the necessity to enlarge a dangerously shallow bridgehead, the bombing was morally and militarily justifiable, if in fact wasteful and unfortunate. But was it legally disproportionate' Is such an inquiry even useful'
Raising questions regarding the utility of proportionality doctrine does not let nations that do act criminally off the hook. The Luftwaffe carA,A!pet-bombed Stalingrad in a similar manner and faced similar consequences, but the German bombing was deliberately indiscriminate and designed to terrorize, as well as being wasteful of German air resources. It is true that for the victims of such bombings, the intention of the attackers makes little difference, but in terms of determining the legality of actions, intention-the mental state of the actor-is fundamental. A mistaken allocation of force is not a crime. A deliberate effort to terrorize the innocent is.
Proportionality in Lebanon, Kosovo, Cassino, and Gaza
In Lebanon in 2006 and Gaza in 2008-09, the IDF pursued modern air warfare tactics and targeting similar to that used by US and NATO forces during their earlier operations in Kosovo, Afghanistan, and Iraq. Indeed, some commentators at the time opined that the Israelis were attempting to duplicate the 1999 Kosovo campaign-where there were few if any claims of disproportionate use of force despite the Serbian military's limited power and the infliction of hundreds of civilian casualties.
At Cassino in 1944, massive Allied airpower was employed for little tactical or operational gain. It is worthwhile to examine these historical examples to determine whether any determination of "proportionality" is truly accurate.
Israeli air attacks early in the Lebanon war, which drew almost imA,A!mediate condemnation as disproportionate, can be roughly divided into two categories: attacks on Hezbollah rocket launchers and command centers and attacks against Lebanese civilian infrastructure targets. The direct atA,A!tacks against Hezbollah, even where civilian casualties occurred, were fully justified militarily and not indiscriminate. Nor by any reasonable underA,A!standing of the term could they be regarded as disproportionate. There were occasional Israeli targeting errors, and some civilian losses were suffered due to the placement of rocket launchers in populated areas. In contrast, Hezbollah's rocket attacks were exclusively directed against civilian Israeli targets. The IDF response is a clear example of justifiable and reasonable military force used in self-defense.
Israel's strikes against Lebanese infrastructure targets are more problematic. These attacks likely violated the military principle of economy of force because they diverted resources from the main effort against HezA,A!bollah, just as the Allied bombardment of Caen drew air assets away from more useful targets. Israel justified its attacks on the Beirut airport, bridges, and transport hubs as attempts to prevent Hezbollah from spiriting the capA,A!tured Israeli soldiers out of Lebanon. Israeli attacks on communication hubs and the Hezbollah television facilities also had military justification in that they weakened the enemy to some degree. But Israel's secondary motive in these infrastructure attacks was to pressure the Lebanese government into bringing Hezbollah to heel. Because the attacks actually had little prospect of preventing the removal of the soldiers, and the Lebanese government had little ability to control Hezbollah, the IDF wasted considerable resources on the infrastructure campaign with little or nothing to show for it.
Did the infrastructure attacks violate the principle of proportionalA,A!ity' They were certainly destructive and wasteful. But the fact that an attack wastes military effort does not mean that it is disproportionate as a matter of law. Military history is replete with examples of armies bringing overA,A!whelming and disproportionate force against enemies, and that approach constituted a popular American post-Vietnam War doctrine closely identiA,A!fied with General Colin Powell when he was Chairman of the Joint Chiefs of Staff. After all, employing disproportionate force against an enemy is one of the best ways to win a battle.
The Israeli bombing campaign in Lebanon closely mirrored NATO's action in Kosovo, which was not generally criticized as disproportionate. At its outset the Kosovo campaign had no greater likelihood of success than the IDF campaign. The force used was greater than the opponent could muster, infrastructure was intensively targeted, civilian casualties were equal to or greater than in Lebanon, and the duration of the campaign was much longer (78 days as compared to 30). Indeed, there is little to distinguish the two campaigns, except that Kosovo ended in a NATO victory, while Lebanon may be characterized as an Israeli defeat.
Arguably, the Israeli campaign in Lebanon saw the disproportionate use of force, but not in the way commonly discussed. If Israel's use of force in Lebanon was disproportionate in a military sense, it was disproportionateA,A!ly weak. That is, considering the terrain, Hezbollah's prepared fortifications, and the overall quality of Hezbollah guerrillas and equipment, the IDF comA,A!mitted far too little force and firepower to have much hope of success.
Several recent studies bear out this thesis.26 The IDF underestimatA,A!ed the extent and sophistication of Hezbollah fortifications, command and control capabilities, logistics, and weaponry.27 In particular, Hezbollah's adA,A!vanced and diverse antitank missile arsenal, combined with elaborate fortiA,A!fications and tunnels, presented the IDF with a significant tactical problem which it did not remedy throughout the course of the campaign.
Hezbollah's tactics were more similar to a conventional military defense than-as comA,A!monly believed-an insurgency. The IDF, accustomed to years of low-level counterinsurgency action against poorly armed and organized Palestinian militias, found itself facing instead a dug-in and determined enemy trained, equipped, and deployed to frustrate predictable Israeli tactics.
A historical example that closely models the problems Israel faced in Lebanon is the Allied air-raid on the Monte Cassino Abbey in FebruA,A!ary 1944. Like the Israelis in Lebanon, the Allies faced a difficult struggle against a skilled and determined enemy entrenched in a mountain fastness. The ancient abbey was a religious and historical structure protected under international law and off-limits to attack, unless a belligerent used it for military purposes.
Allied officers convinced themselves that the Germans were using the mountaintop monastery as an observation post. Such a purA,A!pose made military sense and also seemed to be indicated by the fact that the Germans ferociously defended the abbey's approaches. In reality, the Germans did not put soldiers in the abbey. On 28 February, hundreds of Allied bombers pulverized the complex, killing or injuring many civilians. After the attack, German forces burrowed into the rubble, strengthening their position.
The Allied attack violated the principle of economy of effort. It wasted considerable resources on a target that did not contain enemy forces, weakened the Allies' moral standing, and physically strengthened the GerA,A!man position. Likewise, IDF attacks on Lebanon's infrastructure wasted effort, killed or injured few enemy forces, and damaged Israel's moral case. The overall result was a stronger Hezbollah.
In the 2008-09 Gaza campaign the IDF performed better, thanks to intensive training for the operation and the availability of more sophisticated weaponry. This success inevitably drew even more criticism that the camA,A!paign was disproportionate. But the relationship between Israeli tactical sucA,A!cesses, including a dramatic reduction in casualties, would argue that the IDF's use of force in Gaza bore a clear correlation to military necessities.
Under a proper analysis, Israel's level of force was hardly disproportionate, but instead a textbook example of measured application of force to achieve legitimate military benefits. That Israel failed in its declared objective to stop Hamas rocket fire into southern Israel is the product of a political deciA,A!sion to halt the offensive before it achieved a decisive result.
In fact, none of the four historical examples discussed involved the use of disproportionate force as a matter of law. Even when the Allies or the Israelis made mistakes, as in Lebanon or Cassino, they reasonably believed that their attacks abided by the principles of economy of effort and proporA,A!tionality. The force directed against the abbey at Cassino was tremendous but not out of the ordinary according to the extremely violent standards of World War II. If the bombing of Monte Cassino was disproportionate, so were the Allied bombings of Caen, St. Lo, and countless other Axis targets. Indeed, practically the entire Allied war effort would have to be regarded as criminal. Israel's attacks on Lebanon's infrastructure were substantial, but not worse than NATO's strikes against Serbia during the Kosovo conflict in 1999. The only thing wrong with Israel's strikes in Lebanon or various Allied bombings in World War II was their lack of success. But we do not determine criminality based on outcome, but intent. In these cases the Allies and Israelis made mistakes but did not violate the law of proportionality.
The theory of proportionality is ambiguous, lacks useful precedent, and as a practical matter, is nearly impossible to interpret and enforce. EfA,A!fective military organizations as a matter of course limit their use of force under the doctrine of economy of force, meaning that a disproportionate atA,A!tack on an enemy is likely to be as harmful to the attacker as the victim. The international community and media have a responsibility to use terminolA,A!ogy and principles correctly, not just because they seem to be convenient. In the case of declaring military actions disproportionate, this has simply not been the case.
Accusations of "disproportion," like those against the IDF, will alA,A!most certainly be applied to American forces when domestic and internationA,A!al opposition to US actions can find no other complaint. Yet it is apparent that proportionality is not a useful yardstick for determining appropriate levels of force. The principle of proportionality is so vague and difficult to apply with any consistency, and so widely misunderstood, that the US military should discard it. Instead, American authorities should simply take the position that US doctrine proscribes use of force that is indiscriminate, wasteful, excesA,A!sive, or not necessary to achieving military objectives. America's armed forces should openly acknowledge that they do not abide by the principle of proportionality because it is so problematic.
Taking that position would not be a violation of existing law, as neiA,A!ther the Hague Conventions nor the 1949 Geneva Conventions specifically refer to "proportionality." The United States is not a signatory to the 1977 Geneva Protocols, which do use the term (at least in the commentary). With respect to customary international law or traditional just war theory, simply declining to define American military action as "proportionate" would not violate the spirit of law or theory. Because the prescriptions of each are not specific in a statutory sense, the recommended doctrinal stance should suffice.
Proportionality as a law of war concept for good reason has had limited applicability and usefulness during the last century. It deserves to be disposed of entirely.