by Aleksandar Jokic
(Swans - January 26, 2009) Normative words like "right," "wrong," "permissible," "impermissible," "just," "unjust," etc., can be used to express moral, legal, or political judgments. Thus, one might assert that infidelity is (morally) wrong, that abortion is (legally) permissible where they live, or that choosing to build a joint tomb for both victims and perpetrators of the WWII massacres is (politically) wrong. At least three distinct normative orders, moral, legal, and political, therefore, exist and must be clearly kept apart at all occasions when normative words are used. For, often practices that are clearly morally wrong, such as for example slavery, are legal, as was the case with respect to slavery not so long ago in the United States; in other cases, what is clearly morally wrong, such as infidelity, is not legally proscribed in many locales; and in yet other cases, politics can lead to disregard of both moral and legal concerns, as is arguably the case with the administration of George W. Bush regarding its endorsement and practice of torture.
Ideally, the three normative orders would be so organized that the moral order would enjoy the widest scope and contain both the legal and political orders, while the legal order would be wider than the political. This would make every (relevant) law moral and every political decision both legal and moral. Of course, real life is very different than this, but it is in part precisely because of the ideal in question that moral deliberation is relevant when decisions are made about what rules should constitute positive law or what political course of action to take. Despite this relevance of morality for the other two normative orders, it is very important to keep the three separate at all times. In fact, the effort to avoid conflation of these normative orders is a mark of serious and responsible scholarship, or discourse about normative matters in general. All too often normative discussions fail to satisfy this basic requirement. Such is the case with Michael Walzer's recent discussion on proportionality.
Already in his first paragraph, Walzer confuses the moral and legal orders and perhaps the political as well. Right after claiming that "disproportionate" is the favorite critical term of the partakers in the discussions on the morality of war, Walzer accuses those same (unidentified) people of not knowing what this term means in international law. Is Walzer claiming that before one can formulate a moral judgment using the term "disproportionate" one must ensure that it is used in the same sense as in international law? Could not a practice be disproportionate in a way that it might justify a moral judgment that the practice in question is wrong without thereby amounting to a legal claim that the practice is forbidden by international law? Contrary to Walzer's apparent claim, this seems quite possible. To make things worse, Walzer slams yet another accusation at his targets claiming that "they don't realize that ["disproportionate"] has been used far more often to justify than to criticize what we might think of as excessive violence." What might Walzer mean here by talking of those who use "disproportionate" to "justify" excessive violence? Is the justification he has in mind moral, legal, or simply political? I am afraid that the only meaning that can be attached to "justify" in this context is political -- as what appears to be the subject of justification is a certain policy regarding use of excessive violence -- thus completing Walzer's mess of conflating all three normative orders in just the first three sentences.
Not without tangible condescension for his readers Walzer divulges that with respect to war (presumably legally speaking) "proportionality doesn't mean 'tit for tat'," and that "the law of even-Steven doesn't apply." He connects proportionality to the fact that war is always a purposive activity, and gives examples of such goals: "to defeat the Nazis, to stop the dominos from falling, to rescue Kuwait, to destroy Iraq's weapons of mass destruction." However, these examples cannot be relevant to the issues of proportionality because they pertain to (political) decisions to go to war -- jus ad bellum is at issue at best -- and not conduct in war -- regulated by jus in bello -- which is where proportionality is pertinent. (Pace Brian Orend's inclusion of proportionality among the rules of jus ad bellum, which will be rejected below based on the argument that it leads to the decriminalization of aggression.) Thus, when Antonio Casese, for example, evaluates NATO's 1999 aggression against Yugoslavia as "illegal under international law" but in his "ethical viewpoint resort to armed force was justified" his judgment, though it explicitly mixes normative orders, is clearly about NATO countries' (led by the U.S.) decision to go to war against Yugoslavia, and this did not stop even those who agreed with Casese on this point from criticizing NATO because of the way it conducted its war. For instance, Richard Falk, while largely agreeing with Casese regarding NATO's decision to go to war, appeals to the notion of proportionality when it comes to the conduct of war that was "waged in a manner that unduly caused Kosovar and Serbian civilian casualties, while minimizing the risk of death or injury on the NATO side."
Walzer writes as if proportionality applied to both the issues pertaining to (political) decisions to go to war and to particular acts of war. However, when considering questions of legal justification for choosing war, proportionality is of no relevance. The normative status of a war depends quite simply just on whether we are confronted with an aggression or a war of self-defense. Aggression represents the supreme crime under international law while self-defense is the only legally sanctioned reason (along with applications of U.N. Chapter VII) for going to war. This is precisely why the supporters of NATO's 1999 aggression against Yugoslavia, like Casese, Falk, and many others, had no other recourse than to characterize the war as illegal. True, as soon as they established the illegality in question, these authors hastened to announce that this in no way represented a reason to denounce NATO's decision to bring war to Yugoslavia. Quite to the contrary, as soon as they made their correct legal determination, they departed the legal normative order rendering it allegedly irrelevant, and declared NATO's aggression as "justified," "necessary," or "legitimate." This approach to the normative status of wars -- one that could be called the "illegal but good" doctrine -- is a perversion of the existing international law, and ominously leads to a decriminalization of aggression (in cases of "morally" privileged attackers on "wretched" opponents).
Walzer's approach to proportionality as applicable to both decisions to go to war and to particular acts of war, rather than just the latter (as it should be), has the same dangerous effect of (in principle) decriminalizing aggression. While Walzer appears to want to abandon altogether the apparatus of proportionality by discrediting the uses of "disproportionate," by discussing proportionality with respect to decisions to go to war, he offers a pattern of justification that could in principle validate aggression. Thus he states that "[p]roportionality implies a measure, and the measure here is the value of the end-in-view." Hence, we may wonder whether, according to this formula, a decision to commit an aggression would be justified were one to discover a proportionate military means to accomplish an end-in-view. Surely, this is not an appropriate pattern of justification, simply because aggression is never justified. (Hence, at best proportionality consideration could be considered a secondary ad bellum rule and annexed to the just cause principle.) Should we take comfort in Walzer's claim that this apparently could not happen because proportionality arguments simply don't work because they inevitably justify too much? For he writes:
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.
It is not clear how exactly to take the point in this quote as Walzer might have violated Godwin's law, but he seems to suggest that history is full of failed proportionality arguments as they tend to justify too much. Should we therefore, according to Walzer, refrain from making proportionality based arguments in the context of deciding to go to war on the basis of an end-in-view? But we already know that, since proportionality only applies to particular acts of war -- it is a conceptual tool for making only jus in bello judgments.
Another problem with Walzer's position lies in his demand that we answer questions framed as what is "not disproportionate" (put that way) questions, which then turn out to justify too much violence. From the fact that it may be difficult to correctly answer what would not be disproportionate to a value of an end-in-view it does not follow that it is always difficult to judge something as clearly disproportionate. Contrary to Walzer's attempt at mystifying judgments regarding proportionality -- deeming it "a dangerous idea" -- at a time when Israel's onslaught on Gaza is unfolding with not only impunity and no opposition in the West but with active encouragement (including new record size shipments of armaments for Israel by the U.S.), in some cases making such judgments is really not that difficult. Do we really need to even inquire what the end-in-view might have been before we judge as clearly disproportionate the near instantaneous killing of 140,000 people, overwhelmingly civilians, in a city when a nuclear bomb is dropped on them, only to repeat, three days later, the same exercise killing yet another 80,000 civilians of another city?
Walzer, next, turns to the task of similarly debunking proportionality arguments focused on particular acts of war. He considers a case where the action is American use of air power with the goal of destroying a German tank factory and asks, with respect to the number of civilian deaths in the process that would not be disproportionate to the damage those tanks if put to work would cause, the following questions: "But what number? How do you set an upper limit, given that there could be many tanks and much damage?" Walzer's questions here evoke a flavor of the Socratic Fallacy: Must we really know the number representing this "upper limit" before judging an act of war as disproportionate? Must we know how many hairs a man must shed before we could determine that he is bald?
For Walzer proportionality arguments are necessarily 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." And this is where those who rely on proportionality arguments supposedly go terribly wrong according to Walzer: "'Disproportionate' violence for them is simply violence they don't like, or it is violence committed by people they don't like." If this were a good argument the contrary would also be true: those who like the people who commit violence will like the violence they generate, and will do whatever they can to stifle proportionality based arguments to the contrary. Is Walzer's love for Israel and the violence Israel perpetrates the source of his tendentious rejection of proportionality -- that thing he calls a "dangerous idea" -- or is this based on his scholarship, knowledge of international law, just war theory, and moral argumentation? Thankfully, we don't have to answer this question, for proportionality judgments are not necessarily forward-looking, and hence simply speculative in nature. There need be nothing speculative about a legal or moral judgment based on proportionality about an act of war; we can know that they are wrong, both legally and morally, before they would be undertaken were they to be attempted, during their execution, and after they were completed.
For example, there are weapons, such as incendiary weapons, that are not prohibited per se by international law, but have their use restricted. Protocol III of the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons, which may be Deemed to be Excessively Injurious or to have Indiscriminate Effects under Article 2 (2) prohibits in all circumstances "[...] to make any military objective located within a concentration of civilians the object of attack by air-delivered incendiary weapons." It is well known that Gaza is among the most densely populated areas in the world. Hence, we would know before, during, and after the fact of deployment of, for example, white phosphorus in these circumstances that it would represent a war crime. Yet, very strong indications exist that Israel has used this weapon in the course of the assault on Gaza thus placing civilians under undue risk in ways that are prohibited by international law.
There is another consideration that can give compelling support to judgments of disproportionate use of power, and it has to do with the choice of targets. Like NATO officials in 1999, Israel says "it is destroying military targets, but has razed government buildings, apartment buildings, mosques and has struck UN schools, the compound of the UN Relief and Works Agency, a cemetery, ambulances and hospitals." If a review of targets in a war were to suggest -- as was the case during NATO's 1999 aggression against Yugoslavia, and currently with Israel's attack on Gaza -- that those targeted were mainly civilians, a judgment that the principle of proportionality was violated would be justified. But, is there really an honest reason to question that Israel's Gaza war is an excessive, widespread, and brutal assault on a trapped civilian population?
Walzer complains that with respect to Israel's attack on Gaza the careless users of the proportionality argument called it "disproportionate" on day one, which would be the Sabbath of Chanukah. Interestingly, Walzer's piece appeared on day thirteen of the offensive (just before the announced ground incursion that started on day eighteen), yet he could not find a single act by Israel to raise a question about, and this is fully consistent with his desire to delegitimize all proportionality arguments made against Israel.
Walzer may be correct that many critics of the way Israel conducted its war on Gaza were too quick to call it "disproportionate," though he names no one. However, from this to dismissing any argument based on proportionality against Israel as necessarily un-enlighten is a stretch so massive that it risks justifying the unjustifiable: when it comes to Israel's military, anything goes.
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