The UN and Proportionality: In War, Shoot First and Ask No Questions Commentary
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The UN and Proportionality: In War, Shoot First and Ask No Questions

In early June, Israel carried out a daring rescue, freeing four hostages who had been taken and held for eight months by Hamas and, in flagrant violation of international law, embedding the hostages within families in housing full of civilians, including many children—also a flagrant violation of international humanitarian law and the laws of war. All major news media were quick to report, without confirmation, the implausible Hamas claim that as many as 274 civilians were killed in this operation. Israel said the number may have been around one hundred, but in any case, these casualties were the result of Hamas hiding their fighters and their captive Israeli hostages behind women and children.

After the hostage rescue, UN spokesman Jeremy Laurence said the action by Israeli forces “seriously calls into question whether the principles of distinction, proportionality, and precaution… were respected” and could amount to war crimes. Broadly, a war crime occurs when one party in a conflict uses extra force and other methods beyond what might be reasonably needed to win a conflict. Every warring party must ask themselves if the value of the target is worth the collateral damage. To understand the UN’s concern, consider how the law regards proportionality.

According to Black’s Law Dictionary, 10th ed, proportionality is the principle that the use of force should be proportional to the threat or grievance provoking the use of that force. In international humanitarian law, attacks are prohibited that are likely to cause “incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated” (API, arts. 51(5)(b) and 57(2)(a)(iii)). In war, the currency of exchange is punishment, and the exchange rate fluctuates much like other currency markets. Unlike a currency market, in a war, the exchanged commodity might be a live body for a dead body, but also other damages occur, which are more intangible and less quantifiable. These so-called non-pecuniary damages are the pain and suffering that fester and linger after the shooting stops.

War naturally involves actions that, under non-war conditions, would be criminal in nature. War is the destruction of society, and in the aftermath, we utilize the law to rebuild. In the current Israel-Gaza war, Israel has often been criticized for a response somehow beyond the collective offenses against it on October 7th. The Jewish tradition on the value of bodies is illustrative in this discourse. Judaism considers the body to be in the image of God, and after death, the tradition requires that the body must be protected and buried whole as soon as possible.

The job of protecting the body falls on the Chevra Kadisha, – a holy society – whose sole function is to ensure dignified treatment of the deceased in accordance with Jewish law, custom, and tradition. Men prepare the bodies of men; women prepare those of women. If, in life, a person undergoes limb amputation, that limb may be saved for burial with the rest of the body after death. It was a special branch of the Chevra Kadisha known as ZAKA that used tweezers to collect tiny tissue fragments of Jewish individuals blown apart by terrorist bombs.

In Jewish tradition, the dismembering of bodies is a particularly grievous effrontery. In the immediate aftermath of the Columbia Space Shuttle disaster on February 1st, 2003, NASA bioethicist and expert in Jewish practices Dr. Paul Wolpe received a frantic call. The question put to him was how much of the disintegrated body of Columbia Israeli Astronaut Ilan Ramon needed to be collected to satisfy religious Jewish burial requirements. After the Columbia disaster, members of ZAKA joined in the difficult task of retrieving body parts. In 2008 on the Lebanon border, Israel agreed to exchange 5 living captured prisoners and 199 bodies for the decomposed bodies of two Israeli soldiers after verifying their identities based on a last-minute review of dental records that could be matched to pieces of the human jaw.

Since modern Israel came into existence in 1948, it has participated in many such Arab-Israeli prisoner exchanges. In a conservative estimate of all exchanges from 1958 until 2011, Israel has exchanged 24,500 living people and 500 dead bodies for 370 living and 81 dead bodies. In a very dramatic and controversial example, on October 18, 2011, Israel swapped 1027 Israeli security prisoners for one Israeli soldier, Gilad Shalit, who had been held by Hamas in Gaza for 5 years.  Of the 1027 released prisoners, 280 of them were serving life sentences for planning and perpetrating various terror attacks, including murder, against Israeli citizens and targets. From an outsider’s perspective, trying to make sense of this alive and dead-body currency exchange has been difficult.

It would be wrong to conclude that Arabs in the region do not value life or place some value on the dead. Muslim belief and burial practices are very similar to Judaism. Both faiths believe that burying the dead in the ground is the proper way to respect their bodies and is a religious requirement. Both faiths always bury the dead, and cremation, which is considered a violation of human dignity, is never done. Muslims and Jews also prefer to bury the deceased as soon as possible after death, often the day after and no later than three days after.

As measured by Hamas tactics, at least, what can be observed is a willingness, or even an eagerness, to sacrifice many Palestinian lives for a smaller quantity of Israeli lives. In every exchange from 1958, Israel got fewer people, alive and dead, than it handed over. What is also clear from the recent hostage rescue freeing 4 Israelis is how hard Israel is willing to fight to liberate and repatriate its captured citizens. In the calculus of the cost of the loss of human life as collateral damage, it is Hamas who controls the exchange rate by surrounding hostages with civilians in a war zone.

The UN would be wrong to assume proportionality means a 1:1 exchange. The Hamas raid on October 7th was a criminal act according to international law. In the freeing of hostages, Israel’s actions were not simply a discreet chapter of war between soldiers in uniform lined up on opposing sides. The recent hostage rescue was a police action in response to a vicious crime and, in fact, involved a collaboration of the Israel Defense Force and Israeli police. The only member of the Israeli forces killed was Chief Inspector Arnon Zamora of the Yamam Police Counterterrorism Unit. When a person is convicted of a crime, victim impact statements are canvased and used by judges when considering the convicted defendant’s sentence.

By raising the question of war crimes against Israel in the setting of this hostage rescue, the UN has shown itself not to understand the difference between war and hostage rescue and certainly coldly disregards victim impact to the hostages, their families, and all right-minded people. Owing to the speed of the UN statement against Israel and the lack of understanding of the justification of the hostage rescue, the UN once again risks irrelevance as a conflict arbiter. The Due Process clauses of the United States Constitution require judges to recuse themselves if a strong possibility exists that the judge’s decision will be biased. For the UN to sit in judgment, it must do much better or else withdraw.

Joel Zivot is a practicing physician in anesthesiology and intensive care medicine and a senior fellow in ethics at Emory University in Atlanta, Georgia. Zivot, who also holds a legal master’s degree, is a recognized expert who advocates against the use of lethal injection in the death penalty and is against the use of the tools of medicine as an arm of state power. Follow him on “X”/Twitter @joel_zivot

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