A short history of ‘disproportionate force’

Originally published in the Canadian Jewish News

By SETH J. FRANTZMAN

Within hours of Israel launching massive air strikes on the Gaza Strip in response to Hamas’ firing of more than 100 rockets at Israel over three days, the international community was already reverting to form in its complaints that Israel was using “disproportionate force.”

On Dec. 27, not long after Israel began striking Hamas police stations and terrorist infrastructure in Gaza, the European Union condemned Israel’s “disproportionate use of force.”

This cycle of terrorism, Israeli reactions and condemnations of “disproportionate force” is common in the Middle East. In July 2006, the United Nations’ chief humanitarian officer, Jan Egeland, complained that Israel had used disproportionate force in Lebanon. On July 13, the European Union also claimed that Israel was using such force. On July 27, the prime minister of Turkey did the same, regarding Gaza. Matti Vanhanen, prime minister of Finland, also said the same thing. In 2004, then-UN secretary general Kofi Annan complained that Israel must stop using “disproportionate force in densely populated areas.”

Israel isn’t the only country that’s been accused of using disproportionate force. During its war with Georgia in 2008,  Russia was also accused by the United States and NATO of using disproportionate force.

Where did this idea that disproportionate force is wrong come from? Do western nations and leaders that complain about such use of force really live up to such preaching in their own countries? What is the history of the use of disproportionate force in war?

One of the problems with the term disproportionate force is that it has no accepted definition in international law or elsewhere. In “Sense and nonsense about disproportionate force,” George Fletcher, a law professor at Columbia University, wrote in 2006 that had Britain bombed Buenos Aires during the Falklands War, “in that context [bombing] would have been unnecessary and, therefore, could not possibly qualify as proportionate.”

However, he notes that whereas criminal law deals with proportionate force in self defence, international law has never dealt with this question. “I know of no case in the international version of shooting escaping looters where a court has affirmed that the use of force was necessary, but not proportionate.”

In response to Washington’s condemnation of Russia’s use of force last year in Georgia, Dmitry Rogozin, Russia’s ambassador to NATO, said that “the use of force to defend one’s compatriots is traditionally regarded as a form of self defence,” and he claimed that NATO and the United States had used disproportionate force in Bosnia, Iraq and Afghanistan.

But this brings us no closer to what constitutes disproportionate force or if it should even be considered wrong. Proportionate force, in theory, should be proportional to the threat. Thus, shooting unarmed thieves by a civilian is considered wrong. Police are accused from time to time of using too much force when taking down criminals.

But no one claims that directly proportionate force should be used by civilians or the authorities. Thieves don’t need to be punished by having people steal from them. Rapists aren’t raped. Hostage-takers don’t have their families taken hostage. No one would logically think that Hamas’ rocket fire from Gaza should be countered with equally indiscriminate rocket and mortar fire by Israel.

The history of warfare shows that it has never been fought in a proportionate manner. Winning wars requires not being proportional. Consider World War II. The American army at the end of the war numbered some nine million men under arms. The United States was churning out more planes and tanks in a month in 1944 than the Germans were making in a year. The Soviets massed some 20,000 tanks before the battle of Berlin in 1945.

Other examples:during the first Gulf War, the Americans used disproportionate air power to crush the Iraqi army. In the NATO campaign in Kosovo in 1999, NATO employed more than 1,000 planes against a Serbia that had virtually no air force. When Gen. Ulysses S. Grant brought the full might of the Federal army to bear on the U.S. South in 1864, his soldiers outnumbered Confederate fighters by two to one, and more in almost all battles.

Hardly proportionate.

But it’s in law enforcement that we see the greatest use of disproportionate, but necessary, force. One criminal with a handgun can result in the arrival of dozens, if not hundreds, of officers to a crime scene. In a 1997 North Hollywood shootout, two armed bank robbers shooting at police resulted in the arrival of 300 law enforcement officers, 13 of whom were eventually wounded by the robbers.

Disproportionate force is the way crime is prevented and criminals are brought to justice. It’s also the way wars are ended. All the great causes of history, such as the abolition of slavery or the desegregation of the American South, were brought about by the use of disproportionate force. (In the latter example, the U.S. National Guard was used to secure rights for black Americans.) Nazism would not have been defeated had the Allies relied on proportionate force. Proportionate force is a recipe for unending war and the endless victimization of civilians at the hands of terrorist aggressors. Fighting crime – as with terror and Nazism – requires disproportionate force.

Seth Frantzman is doing his doctorate in at the Hebrew University of Jerusalem. His articles have appeared in the Jerusalem Post, Middle East Quarterly and the Tucson Weekly. He lives in Jerusalem.

– See more at: http://www.cjnews.com/node/82520#sthash.VPboipmy.dpuf

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