Readings: Laurie Blank on Proportionality in Jus in Bello in Israel-Hamas Conflict, a Primer

By Kenneth Anderson
Friday, August 1, 2014, 2:03 PM

Laurie Blank (Emory University Law School professor, director of its law of armed conflict clinic and, of course, well known to many Lawfare readers as a prominent scholar of LOAC) has an opinion column up at primer on the meaning of proportionality in the conduct of hostilities in the law of armed conflict, what it is and what it isn't.  Aptly titled "Asymmetries and Proportionalities," it's particularly useful for journalists, media, diplomats, policy analysts, and the like, who might benefit from a short, straightforward discussion of what "proportionality" means as a legal term in the context of the Israel-Hamas conflict. It is particularly helpful in explaining why proportionality in the law of the conduct of hostilities is not a matter of tallying up how many civilians killed on each side.  Highly recommended to people writing about this conflict for broader publics. Professor Blank's piece is also helpful in explaining why the legal rule of proportionality is the way it is--she very usefully discusses the perverse incentives that would, counterfactually, be created by a retrospective, post hoc, "effects" centered rule of proportionality. It incentivizes surrounding oneself with civilians, as she says.

The conflict in Gaza is replete with asymmetries: the number of civilian casualties on either side, the amount of destruction, the types of weapons used and technological capabilities of the Israel Defense Forces (IDF) and Hamas, or the resources poured into shelter and defense of civilians from attacks.

But asymmetric is not synonymous with disproportionate. When we talk of asymmetries, we compare facts to measure the effects or capabilities of the two sides — the IDF has precision-guided munitions whereas Hamas has rockets that cannot be aimed with any discrimination or precision; hundreds of Palestinian civilians and militants have died while a few Israeli civilians and 40-plus Israeli soldiers have died.

Proportionality, however, is a legal term with a specific legal meaning. It is one of a set of fundamental legal obligations that helps to minimize suffering during wartime. The principle of proportionality forbids attacks in which the expected civilian casualties from the attack will be excessive in relation to the anticipated military advantage gained.

Over at Volokh Conspiracy (now a Washington Post blog, but not so far behind a pay wall), I discuss the article in more detail.  I posted over there because I wanted to be sharper in the language than I would be at Lawfare, particularly reflecting on ways in which the universal rules of jus in bello risk gradual normative diminution and fragmentation, as the gap widens between two foundational, conceptual principles of jus in bello:  the reciprocal obligation of each party to a conflict to the same jus in bello rules, on the one hand, and the independent obligation of each party to a conflict to abide the jus in bello rules even if the other side violates them, on the other.  Each party is bound reciprocally to the same, universal rules; and each party is independently required to apply the universal rules. (On reciprocity, I would point you to Mark Osiel's outstanding book on the topic, from which I have learned a great deal.)

As I suggest at Volokh Conspiracy, these two are pulling further and further apart today: even as the international monitors dutifully recite the formal obligation of each side to abide the same universal rules, in actual fact only one party is held to the rules in any meaningful sense.  Reciprocity in any real, functional sense of serious consequences for a side is rapidly being lost.  But because that holds enormously bad consequences for civilians--reward bad behavior by not holding one side to its jus in bello obligations, and you'll get more bad behavior--international monitors attempt to make up for the loss in civilian protection by doubling down on the independent obligation of the other side to hold to the jus in bello obligations, and to internalize the full costs of civilian protection for both sides.  I suggest further at Volokh that the US and Israel, in particular, have attempted to square this circle through the deus ex machina of technology.

Technology, meaning precision weapons, drones, surveillance, automation technologies, missile defense, Iron Dome, etc.--not insignificantly, the advanced technologies that a surprising number in the international monitor community seem viscerally to dislike.  Surprising because, in my estimation, these are the principal things that have prevented faster and deeper deterioration of the universality of the jus in bello rules.  Technology has provided at least partly a cushion, a way to avoid a direct confrontation between the failure of reciprocity and the (redoubled) insistence upon independence of jus in bello obligations.

Conceptually, this describes an arms race between a side that plays in civilians and a side that plays in technology. Some might see it as a dynamic equilibrium, behavioral move and technological countermove (or technological move and behavioral countermove, if you prefer).  It is unlikely to remain in equilibrium forever, however. Over time, I believe, a side can likely figure out ways to violate the laws of war and exploit its civilians behaviorally faster than its adversary can come up with a new technological "fix" for the latest way of exploiting civilians (more precisely, the law of civilian status in targeting).  Maybe I'm wrong about that; and it's true (as you know if you've read me on this topic at other blogs over the past decade) that the technological advances have been remarkable.  Maybe there's a special Moore's Law that says that precision in weapons tech doubles every couple of years, and so a collision between reciprocity and independence never ripens. But somehow I doubt it.