Israel's Response Is Proportionate

My friend Paul Kujawsky is a lawyer and political activist, the former President and currently the Vice President of Democrats for Israel, and a member of the California Democratic Central Committee. He wrote the following column, as an exclusive to The Hedgehog Blog:

Well-Proportioned

by Paul Kujawsky

Israel’s military operation against Hamas and Hizbolla has been received with more international understanding than previous post-1967 operations. Nevertheless, Israel’s success in degrading the capabilities of Hamas and Hizbolla is being met by predictable demands that the Jewish state prematurely end its campaign before the elimination of the terrorist threat. The preferred line of attack has been condemnation of the lack of "proportionality" in Israel’s reaction. The European Union and the Arab League; countries including Russia, France, Germany, Italy, Switzerland, Turkey, Indonesia and Venezuela; and newspapers such as the Guardian, the New York Times and the Los Angeles Times, have all criticized Israel’s actions as "disproportionate."

What are they talking about?

It’s a question of international law. Just as the U.N. Charter (rather optimistically) requires that "[a]ll Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered," (Article 2), it explicitly recognizes "the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations . . . " (Article 51).

However, this right to wage war in self-defense is not unlimited. As UCLA Law Professor Jack Beard explains in a 2002 Harvard Journal of Law and Public Policy article, "It is a well established rule of customary international law that even when a state is lawfully engaged in the exercise of its inherent right of self-defense, its use of force must be limited to that force necessary to defend against the attack and must be
proportionate."

Professor Beard adds, "Proportionality depends on the totality of circumstances and requires decisions about the nature of the conflict to which it is applied—making recent Israeli actions a rather complex topic."

We can analyze the problem of proportionality this way:

First, "proportionate" does not mean "tit-for-tat." If you hit me without justification, my goal in hitting back is not to establish an equilibrium of ongoing violence. My goal is to hit you hard enough to make you stop. No more rockets in the Negev and the Galilee.

Second, a proportionate defense must include deterrence. Not only do I want you to stop hitting me; I want to make you never want to do it again. And I want to make those supporting you (Syria and Iran) nervous.

Third, in war, even a proportionate response can involve the suffering of innocents. Unfortunately, no one has yet devised a way of waging war without unintended civilian casualties. Here, note that while Israel drops leaflets warning Palestinian and Lebanese civilians to stay away from likely targets, Hamas and Hizbolla do their best to kill Israeli civilians. Note too the opinion polls showing that a solid majority of Palestinians favor the kidnaping of Israeli soldiers and the rocketing of Israeli cities. Hamas and Hizbolla have both won electoral victories, despite (or because of) their Islamist programs. Thus, the civilian populations in Palestine and Lebanon can be considered not entirely "innocent."

When the United States exercised its right of self-defense after 9/11, we didn’t just knock down the two tallest buildings we could find in Kabul. We tried to destroy al-Qaeda, and we overthrew the Taliban government that had supported it. No serious commentator regarded that as "disproportionate." Israel, long tormented by terrorism, is entitled to no less freedom of action.

As a result, calls for a quick cease-fire or peace-keeping forces are off the mark. War is like comedy in one respect (and probably only one respect): Timing is everything. Israel should not stop before reaching its goal of eliminating the threat of rockets from Gaza and southern Lebanon.