Michael Walzer wrote a short piece for The New Republic's website several days ago about "proportionality" and the Israel-Gaza war. The piece was characterized by a writer at Crooked Timber as a "waffly piece of blah." It is true that Walzer raises questions without explicitly answering them. However, I do not find the tone of Walzer's column to be as objectionable as the CT commentator does.
P.s. Those interested in just war theory will find the comments thread attached to the linked CT post worth perusing.
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6 comments:
LFC
Back in the last Lebanon war there was a lot of comment accusing Israel of being disproportionate.
The Baron at Gates of Vienna collected a number of these comments, none of which bore a minor resemblance the International Law doctrine. His comments were to the effect these were stupid or malicious, pronounced himself in favor of Disproportionality and put a cute disproportionality ICON in his side bar.
So I called him on it, pointing out that his samples did not know what they were talking about and that the doctrine of proportionality is very important for several reasons. The Barron agreed with me and gave a succinct and accurate description of the correct meaning. Then he said it doesn’t make any difference because the left has muddled the term beyond recovery. He was using disproportionality to separate himself from the mass misuse of the term, though I suspect he is further muddling things.
Of course it is more than the left that has muddled a number of terms including this one. But the usage is so muddled that it is hard to hold a decent conversation the subject.
Michael Walzer's piece is the sort of “waffly piece of blah” that creates this problem.
In the interest of unmuddleing the subject I would recommend Kenneth Andersons Proportionallity in Jus In Bello
Hank,
Thanks for the Anderson cite.
Walzer argues in his New Republic column that 'proportionality' usually has been invoked to justify more civilian casualties than can be justified in a particular case. D. Davies, writing at the Crooked Timber post I linked, takes Walzer to task for (1) ignoring the relevant Geneva Convention Protocols (to which the U.S. and Israel, btw, have never adhered) and what they say on the matter, and (2) effectively providing political cover for those who would use bad arguments to justify civilian deaths. In the Crooked Timber comment thread, Thomas Hurka, who has written on this subject, makes some interesting comments (vs. Davies) and points out, among other things, that Walzer has never been especially keen on the invocation of proportionality (which has to be distinguished from discrimination and necessity).
I am not an expert either on just war theory or on international humanitarian law (a/k/a the law of armed conflict). I think Walzer's 'Just and Unjust Wars' is on the whole (not in every respect, but on the whole) a good book, though I differ with Walzer's communitarian emphasis on the moral importance of national boundaries, among other things. However, in the years since 1977, when 'Just and Unjust Wars' first appeared, I have had more problems with what Walzer has written.
One basic issue here is whether the strictly legal issues exhaust the field, or whether there is also a moral question that is not identical with the legal one. In other words, even if one concluded that country X's actions did not violate the relevant international law doctrines, could one still criticize those actions on moral grounds? And my answer to that is yes.
In the current case of Israel's actions in Gaza, it is very hard for me to defend for example the firing of shells near UN schools which result in the deaths of children, even if Hamas fire was being directed from those areas. Thomas Hurka in the CT thread goes into the whole issue of using human shields and how this affects the relevant calculations in a more scholarly and detailed way than I am able to. (Which is not to say I necessarily agree w him on everything).
Well, now that that's all unmuddled...
p.s. See comment #161 (I think it is) on the CT thread, re Walzer and sieges.
`I was a combat arms officer. Proportionality is not an academic concern to me. It is a key item in “how” Jus in bello not the why.
Every year we had the requirement to teach the “Law of Land Warfare” class. We would invite the JAG office to send some one to teach it. I am sure the Supreme court would vote 9-0 that his explanation was brilliant. On occasion the subject would come up in conversation. The people in the ranks think a brief is underwear. They did not understand the explanation. Often they felt it is irrelevant or even a danger to humanitarian behavior. I gave up. I wrote my own lesson plans, cleared them with lawyers and taught the class myself.
Walzer’s explanation in that article is just the sort of thing (even when he is right) that will leave a person with ordinary intelligence and education unable to deliberately apply the proportionality to actual situations and confuse there natural common sense.
Ok, I’ll put my soap box away.
I looked at the opening of the Kenneth Anderson post you referenced, Hank.
Anderson: "[The] rule of proportionality is so ancient and deeply embedded in the laws of war that the Hague Regulations do not see the need to state the general proportionality rule as such. The US Army’s Law of Land Warfare, which generally follows the Hague Regulations, sets out the general rule that 'loss of life and damage to property [esp. civilian life and property] must not be out of proportion to the military advantage to be gained.'"
He then goes on to say that the problem is not in stating this rule but applying it, and that it is "inherently open-ended and subjective" and a matter of continual judgments made up and down the chain of command (I'm paraphrasing). I stopped reading about there.
Taking Anderson at his word, I would think it would be difficult to teach proportionality in a Law of Land Warfare class beyond saying: "Use your common sense. If the goal of the operation is to take Hill X, for example, don't drop bombs willy-nilly on the surrounding countryside if there's nothing of military importance there." But not having been in the military and not having taken such a class, I'm just speculating here.
Walzer's point, not all that clearly expressed perhaps, is that restraints other than the
proportionality rule are more important restrictions on what soldiers may and may not do. One of the main problems I have with Walzer's TNR piece is that he asks three very clear and identifiable questions at the end -- one, two, three --
and then doesn't even try to answer them. I suspect his answers to them would cut Israel more slack w/r/t the Gaza operation than I would.
You say that proportionality is not just an academic concern to you as you were a combat arms officer. Fair enough, I certainly respect that. It may be worth noting, however, that Walzer the academic would not have gotten into the whole just war area had it not been for the Vietnam War and his involvement in the anti-war movement. So his academic work in this area grew out of a non-academic concern and involvement. Finally, I note that the fact that the proportionality rule was in the US Army's Law of Land Warfare regulations during the Vietnam War did not prevent the Army from violating the proportionality rule during that conflict.
In addition to the general proportionality rule as set out in the Army's Law of Land Warfare manual, I suppose one could also teach specific cases of its past application and also, perhaps, note the '77 Geneva protocols. Except, as mentioned earlier, the U.S. never ratified them.
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