Proactive would be better

Tehran is justifying its barrage of more than 300 drones, cruise and ballistic missiles fired at Israel last weekend as “proportional” to the provocation. That provocation was an Israeli attack on an Iranian consular facility in Damascus that killed high-ranking officers of the Islamic Revolutionary Guard Corps (IRGC). Israel is justifying its 6-month attack on Gaza that has killed more than 30,000 Palestinians as proportional to its military objective. That is to destroy Hamas. Proportionality is obviously in the eye of the beholder

It shouldn’t be so

This is a serious limitation of the international regime. It sets up norms like proportionality but then leaves compliance to interested belligerents. Some Israelis will no doubt argue that proportionality requires a further response to the Iranian attack with more than 300 flying weapons. Assuming the Israelis are technically better and luckier in their targeting than the Iranians, an Israeli attack with even fewer could kill a lot of Iranians. Then the Iranians would want to kill just as many Israelis. The escalation ladder has no obvious limit.

The international system needs a better way of dealing with proportionality. It should not be left to belligerents to decide. Nor should a decision on proportionality come during court proceedings likely many years after the military action. We need norms, along with a way of convening a discussion of how to apply them to particular circumstances during a crisis.

It’s not only proportionality

Proportionality is today’s issue, but there are many others when it comes to military action and mass violence more generally. The UN has defined aggression, but like proportionality “aggression” may also be in the eye of the beholder. The Russian attack on Ukraine is aggression from President Zelensky’s perspective, but not from President Putin’s.

“Genocide” is likewise well-defined, but application of that definition to particular cases arouses a good deal of debate.

Ditto “responsibility to protect,” a UN General Assembly-endorsed doctrine. It requires states to protect their own civilian populations or risk international intervention that the Security Council authorizes.

The lawyerly approach to such issues is to rely on case law. Decisions in particular cases become precedents for future cases. But that process leaves a great deal of uncertainty and delay. What we need is a much more timely, even anticipatory process.

Proactive would be better

That is not impossible. The legal profession could provide mechanisms that provide guidelines and press belligerents to follow them even during a conflict. The International Court of Justice (ICJ) is trying something of this sort with the Gaza conflict. It has responded with unusual speed to the South African complaint against Israel for violation of the genocide convention.

A less formal process might also work. The ICJ of necessity requires elaborate judicial proceedings. The Elders, a group of former world leaders already engaged on conflict issues, could become less reactive and more proactive. The UN’s International Law Commission could likewise take on this responsibility. The legal profession could also constitute an international nongovernmental group to advise on conflict issues before the shooting starts. Proactive would be better.