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Friday, January 16, 2009

Must Israel Use "Proportionate" Force Against Hamas?

It is always a little dangerous when law professors opine on areas of law with which they have little familiarity. That is why I have stayed away from the issue of whether Israel must use "proportionate" force against Hamas. Although I suspected that the term "proportionate" was used disproportionately and wrongly by critics of Israel, I don't have the international law background to explain why.

So I call readers' attention to an article at Dorf on Law by Cornell Law Professor Michael Dorf, explaining why the common criticism that Israel has used disproportionate force misses the mark. After some explanation, Dorf concludes as follows:
Viewed in this light, Israel's principal war aim appears to be legitimate: to destroy or degrade the ability of Hamas to launch rockets into Israel. The matter is not entirely free from doubt, however, because Israel has not been entirely clear on its war aims. But the point I want to emphasize here is that the question of whether Israel's war aims are disproportionate to the casus belli is very different from the question of whether the collateral civilian casualties are disproportionate to the achievement of Israel's military objectives in attacking Hamas fighters. Or to put the point somewhat more tendentiously: There is no legal requirement that Israel's use of force be proportionate to Hamas's use of force.
I hope I am not treating this discussion disproportionately. The way I interpret this analysis, in terms that even I can understand, is that you are allowed to bring a gun to a knife fight.