Hugo Grotius, the 17th century jurist and father of public international law, stated in his 1625 magnum opus The Rights of War and Peace that “Most Men assign three just Causes of War, Defense, the Recovery of what’s our own, and Punishment.” Using Grotius’ criteria, Israel’s recent use of force against Hamas and Hezbollah can be considered trebly justified, given that it seeks to defend itself from enemy incursions, recover its kidnapped citizens, and ensure that such invasions are not repeated. Yet the French Foreign Ministry announced that “France deplores Israel’s bombardments on a beach in the Gaza Strip, whose disproportionate character has cost the lives of several civilians and injured many others,” while the European Union chided Israel for “the disproportionate use of force by Israel in Lebanon in response to attacks by Hezbollah on Israel,” and Egypt claimed that “Israel’s disproportionate use of power in a densely populated area contradicts international law.” These criticisms shift the debate from whether a response from Israel is justified to whether Israel’s current response is “proportionate,” a term with a long history in international law and a term all too often abused.
It is confusing that a military operation should adhere to principles of proportionality in the first place. After all, military commanders are hardly obligated to fire as many bullets as the enemy and no more. Any confrontation between Israel and Hamas or Hezbollah will perforce be out of proportion; the former has F-16s, the latter crude rockets and suicide belts. (One recalls decades-old municipal legal rulings in the United States, now considered misguided, that a homeowner using a firearm against a knife-wielding attacker was guilty of a criminal offense due to the disproportionate force involved.) But according to generally-accepted public international law, proportionality, together with necessity, are the two limitations to the inherent national right of self-defense.
To understand “necessity,” we can look to the famous Caroline Dispute of 1841, in which Daniel Webster complained to the British government that British soldiers had captured a private American ship, set it ablaze, and then sent it over Niagara Falls, on the grounds that the ship had been supplying Canadian rebels. According the Caroline dictum, “the necessity of self-defense is instant, overwhelming, and leaving no choice of means, and no moment for deliberation.” The doctrine of “proportionality” arose out of the ancient practice of reprisal or retorsion. In a 1928 trial (the Naulilaa case) involving an instance of retaliation by German colonial soldiers against a Portuguese outpost that had accidentally fired on a German interpreter, the Special Arbitral Tribunal defined reprisal as “an act of self-help on the part of an injured state — after an unsatisfied demand — responding to an act contrary to the law of nations on the part of the offending state.” Since this definition alone did not require that a response be proportionate, the court ruled that international law, in order to prohibit excess, “seems to restrict the notion of legitimate reprisal.”
The United Nations Charter acknowledges the “inherent right of individual or collective self-defense,” although states undertaking such an exercise are in theory obligated to inform the Security Council under the terms of Article 51. According to the jurist Louis Henkin, “It has…been accepted that the right to self-defense, individual or collective, is subject to limitations of ‘necessity’ and ‘proportionality,’ but that self-defense includes a right both to repel armed attack and to take the war to the aggressor state in order effectively to terminate the attack and prevent a recurrence.” Here, we are not so far from Grotius’ justifications of defense, recovery, and punishment. Another jurist, W. Michael Reisman, has found nine categories that allow for the legal use of unilateral force, including self-defense and “counter-measures such as reprisals and retorsions.”
This, then, is the current state of international law concerning the use of force. Do Israel’s actions stand up to the Caroline dictum? The necessity is indeed “instant, overwhelming, and leaving no choice of means, and no moment for deliberation,” if one considers the dangers posed by terrorist raids into one’s territory, and the potentiality of kidnapped soldiers being spirited away to Iran, as has been suggested. Do Israel’s actions stand up to the Naulilaa criteria? There is an unsatisfied demand (the return of kidnapped soldiers), and the response may be said to be proportionate to the threat posed by Hamas and Hezbollah, if not proportionate to the specific means used against them. Israeli Defense Force operations in Gaza and Lebanon also meet the criteria laid out by Henkin and Reisman for the legal exercises of unilateral force in self-defense. To say that Israel has somehow contradicted the international law of war is to pretend that international law is something else entirely.
In any case, it is distinctly ironic for French President Jacques Chirac to condemn Israel for a disproportionate response, given events less than two years ago in Cote d’Ivoire (Ivory Coast). On November 5, 2004, Cote d’Ivoire government helicopters strafed a rebel village, accidentally killing nine French peacekeepers. Did France adhere to the Naulilaa principles and make an official demand which, if unmet, would result in a proportional response? No. France retaliated by destroying the entire Cote d’Ivorien air force, sparking widespread protests and mob violence in the streets of Abidjan. I do not recall a single statement by members of the international community regarding the disproportionate use of force by the French military in this instance, yet Israel’s actions, prompted by the enormities committed by powerful non-state terrorist actors on Israeli territory, and justified by Grotius’s rule, the Caroline rule, the Naulilaa rule, and current international customary law, is deprecated in the harshest terms. The recent comments made by various national governments and international organizations regarding Israeli military “disproportionality” represent a disturbing example of the false invocation of international law to buttress particular policy biases, and should be rejected as such.
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