On June 27, President Joe Biden ordered airstrikes on targets associated with Iranian-backed militias in both Syria and Iraq. The Pentagon executed similar strikes last February. In this picture released by the Iranian Tasnim news agency on Wednesday, Feb. 25, 2015, a replica of a U.S. aircraft carrier is exploded by the Revolutionary Guard’s speedboats during large-scale naval drills near the entrance of the Persian Gulf, Iran. The drill, named Great Prophet 9, was the first to involve a replica of a U.S. carrier. (AP Photo/Tasnim News) AP

The proportionality delusion

Michael Rubin July 02, 08:00 AM July 02, 08:00 AM

On June 27, President Joe Biden ordered airstrikes on targets associated with Iranian-backed militias in both Syria and Iraq. The Pentagon executed similar strikes last February.

On both occasions, senior officials rushed to assure that the action was proportionate. Pentagon Spokesman John Kirby called the first strike a “proportionate military response,” and Speaker of the House Nancy Pelosi praised the second. “The defense airstrikes… appear to be a targeted and proportional response to a serious and specific threat,” she wrote.

The emphasis on proportionality is not simply an obsession of the Biden administration. After Syrian President Bashar Assad used chemical weapons against his own population in 2017, the Pentagon spokesman assured, “The strike was a proportional response to Assad’s heinous act.” Secretary of State Rex Tillerson thanked allies for their support “for our timely and proportionate response.”

Across administrations, the promise to act proportionately has become the center square in White House bingo. Sony hacked by North Korea? “We will respond proportionally,” President Barack Obama promised. Russia seeking to interfere with the 2016 election? “There would be a proportional response,” Obama press secretary Josh Earnest said. The U.S. strikes in Afghanistan and Sudan after the 1998 East Africa embassy attacks? “These strikes were a necessary and proportionate response,” President Bill Clinton wrote to congressional leaders.

Proportionality was not always such a prominent concern. Think of the firebombing of Dresden or the atomic attack on Hiroshima and Nagasaki. Scholars argue that the concept of proportionality dates back to Christian “Just War” doctrine. But both world wars in the 20th century show that states subordinated concerns about proportionality to a desire not only to win battles but, when possible, to other factors, like delivering a knock-out blow to enemies or demonstrating to an enemy’s public the cost of continuing conflict.

The slaughter of the world wars, however, catalyzed a rethink of the laws of war. The Hague Conventions of 1899 and 1907 outlawed poisons, slaughtering prisoners, bombarding undefended towns, conscripting occupied peoples, and the use of certain types of munitions. The Geneva Conventions further codified rules of law.

Still, the notion that proportionality is a hard-and-fast rule is false.

First, the full rights provided by the Geneva Conventions are not universally applicable, especially with regard to terrorist groups. No terrorist group is a signatory to the Conventions. The Geneva Conventions incorporated the 1907 Hague Convention’s four-part test for the applicability of rights. In short, groups that do not uphold the Geneva Convention’s rules with regard to wearing uniforms, hiding among civilians, and upholding the rules of war do not gain the full protection of the Conventions for the simple reason that to do otherwise would incentivize the erosion of the rules-of-war.

Even if Iran-backed militias operate in accordance with the four-part test, self-defense theory comes into play. Such arguments came to the forefront after the 9/11 attacks and, more recently, after the drone strike on Quds Force chief Qassem Soleimani. Paul C. Ney, Jr., the Defense Department general counsel, grounded the legality of the strike on Soleimani with the international law requirement that our measures in self-defense be “proportionate to the nature of the threat being addressed.” (Contrary to public punditry, imminence of any threat is a “red herring,” Ney shows).

In an article for the Cornell Law Review, Michael Bonafede traced the evolution of proportionality and found “the doctrine of proportionality — the notion that a state may not respond to a use of force in any manner ‘unreasonable or excessive’ — is firmly established as an integral aspect of both customary international law and, by extension, Charter Law.” Bonafede criticizes the legality of airstrikes under such conditions, but the relatively recent focus on proportionality not only belies the idea that customary law applies but also elides the fact that excessiveness is subjective.

The reality is that proportionality has never stopped conflict. President Harry S. Truman’s decision to drop nuclear weapons on the Japanese mainland compelled Japan to surrender unconditionally and likely saved a million lives. Egyptian President Anwar Sadat sought peace only when repeated military defeat convinced him he had no other choice. George H.W. Bush liberated Kirkuk by acting disproportionately; Bill Clinton ending first Bosnia’s and then Kosovo’s ethnic cleansing the same way. Calls for proportionality between Israel and Hamas, meanwhile, can never bring peace any more than proportionality could when fighting the Islamic State.

Many progressives see themselves as pro-proportionality, pro-international law, and pro-peace. They are delusional. Not only does international law provide wide latitude, but proportionality and peace are often mutually exclusive. If Biden truly wants to bring peace to Iraq, it is time to target top militia leaders and their sponsors.

Michael Rubin (@Mrubin1971) is a contributor to the Washington Examiner’s Beltway Confidential. He is a senior fellow at the American Enterprise Institute.

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