I want to add two cents to the much needed efforts of Ramesh and Victor (see, e.g., here and here) to correct the perversion of the concept of proportionality. I noted this trend back in the summer of 2006, when it was applied to Israel’s military operations against Hezbollah in southern Lebanon. Also highly recommended is ”Leashing the Dogs of War,” a great article by our friends David Rivkin and Lee Casey, published by The National Interest in around autumn 2003. (I don’t think it’s readily available to non-subscribers through TNI’s site, but I bet it’s out there someplace.) [SEE UPDATE, below] Also well worth the time is David & Lee’s 2004 NRO article, “What Israeli Illegality?“
I have an article coming soon which calls (among other things) for a complete reappraisal of what “international law” means in the context of the ongoing conflict. I argue that there is no international law of warfare because Israel, like the U.S., has wisely declined to join the 1977 Protocol I to the Geneva Conventions. It has therefore not consented to Protocol I’s effort to convert warfare from a military campaign into a hyper-legal regulatory exercise that favors terrorist factions over national armed forces.
Most of the world has signed on to Protocol I – including, regrettably, our NATO allies (the Brits ratified it in 1998, the same year Blair’s government incorporated the European Convention on Human Rights into UK law). It is on the basis of this consensus — among countries that have either abdicated their national-defense responsibilities or stand to gain by Protocol I’s tilting of the field toward terrorists and so-called “national liberation” movements — that Israel and the U.S. are now routinely accused of war crimes. But a set of obligations only constitutes “international law” if a country has agreed to be bound by it. Israel and the U.S. have not agreed to be bound by Protocol I. Consequently, there is no law violation in failures by Israel or us to meet its impossible terms (impossible, that is, if the objective of a military campaign is to be victory).
No number of loopy “disproportionate” reports by CNN, MSNBC and their stable of human-rights experts can change this. We should understand, moreover, that these are not simply reports; they are very purposeful efforts to advance a leftist antiwar agenda. If adopted, they would prevent the U.S. and Israel from pursuing vital national interests — especially national defense. We ought to be attacking the premise of these war-crimes smears rather than trying to finesse the matter for the purportedly greater good of harmony within the “international community.” A community is a place where everyone is bound by the same law. We don’t have one.
UPDATE: Adam White kindly informs me that the Fall 2003 David Rivkin/Lee Casey article from The National Interest can be found here.