Let’s talk about proportionality--or, more important, about its negative form. “Disproportionate” is the favorite critical term in current discussions of the morality of war. But most of the people who use it don’t know what it means in international law or in just war theory. Curiously, they don’t realize that it has been used far more often to justify than to criticize what we might think of as excessive violence. It is a dangerous idea.
Proportionality doesn’t mean “tit for tat,” as in the family feud. The Hatfields kill three McCoys, so the McCoys must kill three Hatfields. More than three, and they are breaking the rules of the feud, where proportionality means symmetry. The use of the term is different with regard to war, because war isn’t an act of retribution; it isn’t a backward-looking activity, and the law of even-Steven doesn’t apply.
Like it or not, war is always purposive in character; it has a goal, an end-in-view. The end is often misconceived, but not always: to defeat the Nazis, to stop the dominos from falling, to rescue Kuwait, to destroy Iraq’s weapons of mass destruction. Proportionality implies a measure, and the measure here is the value of the end-in-view. How many civilian deaths are “not disproportionate to” the value of defeating the Nazis? Answer that question, put that way, and you are likely to justify too much--and that is the way proportionality arguments have worked over most of their history.
The case is the same with arguments focused on particular acts of war. Consider the example of an American air raid on a German tank factory in World War Two that kills a number of civilians living nearby. The justification goes like this: The number of civilians killed is “not disproportionate to” the damage those tanks would do in days and months to come if they continued to roll off the assembly line. That is a good argument, and it does indeed justify some number of the unintended civilian deaths. But what number? How do you set an upper limit, given that there could be many tanks and much damage?
Because proportionality arguments are forward-looking, and because we don’t have positive, but only speculative, knowledge about the future, we need to be very cautious in using this justification. The commentators and critics using it today, however, are not being cautious at all; they are not making any kind of measured judgment, not even a speculative kind. “Disproportionate” violence for them is simply violence they don’t like, or it is violence committed by people they don’t like.
So Israel’s Gaza war was called “disproportionate” on day one, before anyone knew very much about how many people had been killed or who they were. The standard proportionality argument, looking ahead as these arguments rightly do, would come from the other side. Before the six months of cease-fire (when the fire never ceased), Hamas had only primitive and home-made rockets that could hit nearby small towns in Israel. By the end of the six months, they had far more advanced rockets, no longer home-made, that can hit cities 30 or 40 kilometers away. Another six months of the same kind of cease-fire, which is what many nations at the UN demanded, and Hamas would have rockets capable of hitting Tel Aviv. And this is an organization explicitly committed to the destruction of Israel. How many civilian casualties are “not disproportionate to” the value of avoiding the rocketing of Tel Aviv? How many civilian casualties would America’s leaders think were “not disproportionate to” the value of avoiding the rocketing of New York?
The answer, again, is too many. We have to make proportionality calculations, but those calculations won’t provide the most important moral limits on warfare.
These are the questions that point us toward the important limits. First, before the war begins: Are there other ways of achieving the end-in-view? In the Israeli case, this question has shaped the intense political arguments that have been going on since the withdrawal from Gaza: What is the right way to stop the rocket attacks? How do you guarantee that Hamas won’t acquire more and more advanced rocketry? Many policies have been advocated, and many have been tried.
Second, once the fighting begins, who is responsible for putting civilians in the line of fire? It is worth recalling that in the Lebanon war of 2006, Kofi Annan, then the Secretary-General of the UN, though he criticized Israel for a “disproportionate” response to Hezbollah’s raid, also criticized Hezbollah--not just for firing rockets at civilians, but also for firing them from heavily populated civilian areas, so that any response would inevitably kill or injure civilians. I don’t think that the new Secretary General has made the same criticism of Hamas, but Hamas clearly has a similar policy.
The third question: Is the attacking army acting in concrete ways to minimize the risks they impose on civilians? Are they taking risks themselves for that purpose? Armies choose tactics that are more or less protective of the civilian population, and we judge them by their choices. I haven’t heard this question asked about the Gaza war by commentators and critics in the Western media; it is a hard question, since any answer would have to take into account the tactical choices of Hamas.
In fact, all three are hard questions, but they are the ones that have to be asked and answered if we are to make serious moral judgments about Gaza--or any other war. The question “Is it disproportionate?” isn’t hard at all for people eager to say yes, but asked honestly, the answer will often be no, and that answer may justify more than we ought to justify. Asking the hard questions and worrying about the right answers--these are the moral obligations of commentators and critics, who are supposed to enlighten us about the moral obligations of soldiers. There hasn’t been much enlightenment these last days.
Michael Walzer is a contributing editor at The New Republic. This piece also appears on the website for Dissent Magazine.
By Michael Walzer