On a rainy afternoon in Jerusalem, a few professors sat down at the Israel Democracy Institute to discuss proportionality at war.
“It’s the most discussed concept in war ethics,” says Prof. Daniel Statman, Head of the Philosophy Department at the University of Haifa. “Some armies commit war crimes that are not difficult to identify. When armies intentionally kill civilians, everyone knows that’s murder. Matters are less clear when armies use force against legitimate military targets, despite the fact that they foresee civilian casualties. The question is how to balance the value of the military action against the price of civilian casualties.”
Experts from 11 countries interviewed
Statman, together with Prof. Raanan Sulitzeanu-Kenan, a researcher at the Israel Democracy Institute and head of the Federmann School of Public Policy at Hebrew University, co-authored a new study at IDI – “Unreliable Protection: an Experimental Study of Experts In Bello Proportionality Decisions.”
A range of experts and non-experts were surveyed: 289 academic researchers, experts in law and philosophy of morality and war from 11 different countries;
234 military officers from the United States and Israel; and a sample of 960 US citizens. The participants were presented with two wartime military scenarios and were asked to answer questions regarding the legitimate collateral damage to civilians in each situation.
The study’s goal was to assess the reliability of experts and non-experts’ decisions regarding what is a legitimate and proportional attack in war.
The results of the experiment revealed a lack of agreement among the experts. Surprisingly, there were large differences between Americans and non-Americans in the level of agreement in their decisions. This divide persisted both among academics and military officers.
The most interesting finding was that Israeli military officers are less tolerant of higher civilian casualties than their American counterparts.
Ethics in war is not applied science. Rather, it is highly subjective and influenced by variables such as political beliefs, cultural judgments and experience.
“Military value is a matter of subjective judgment. What is the size of the coefficient that should be multiplied by an unspecified military value that gives you the outcome, which is the number of permitted civilian casualties? Nobody can actually say what this number should be, this coefficient. We thought that experts would help us to arrive at this value, but they couldn’t.” said Sulitzeanu-Kenan, a professor at Hebrew University.
“There is no agreement among experts and army officers regarding the precise number of civilian casualties and what is considered ‘excessive’ – and therefore prohibited – by the principle of proportionality established in international law,” according to Prof. Amichai Cohen, Director of the Amnon Lipkin-Shahak Program on National Security and Democracy at the Israel Democracy Institute. “In light of this, applying the principle of proportionality should focus on the process taken prior to the decision to attack, and on the actions taken by the military force to examine and investigate the injury to civilians after the action.” he said.
“As a practical guide, the results are lacking; however they provide a very important educational tool,” said Statman, who helped draft the IDF’s ethical code and often lectures to officers in the military.
Israel is often put in the spotlight for its supposedly disproportionate attacks or retaliations, arguably more than any other country in the world. But Israel is caught in a double bind, because it is forced to wage asymmetric warfare against enemies who do not follow the same rules, particularly regarding civilian casualties.
“Definitely, we would refrain from intentionally killing civilians, even if the other side doesn’t. Moral duty isn’t weakened by the fact that the other side commits murder,” Statman said. “Our results show that in fact, Israeli officers are far less tolerant of civilian casualties than their international counterparts.”
The study showed that there is no agreement on the “exact number” of casualties deemed unacceptable by the different militaries.
“The purpose of the principle of proportionality is to ensure that the protection of the lives of uninvolved civilians will be part of the objectives of the attacking army, and that it will do all in its power to protect them.” added Cohen.
Reduction in civilian casualties
These precautions were found to lead to a reduction in civilian casualties inflicted even in cases where the militaries felt that there was no alternative but to target sites that include the risk of such unintended consequences.
This unique study, which was conducted over four years, has important implications for the moral and legal rules applicable to armed conflicts.
The inherent purpose of proportionality is to make warfare more just. The contribution of this unique study is that it seeks to better define the issues surrounding proportionality, and thus reduce the number of innocent civilians harmed during military conflicts.
This article was written in cooperation with the Israel Democracy Institute (IDI).