Is
Proportionality a Biblical Concept?
By Peter E.
Tarlow
The Middle East has long
been the center of philosophic and creative thought. It is from this part of
the world, that three of the great religions have been born. The Middle East has also been one of the
great stages for human conflict. War is as much a part of the Middle East’s
landscape as are its deserts. Thus, this
region that bridges Europe, Asia and Africa has produced some of the humanity’s
loftiest thoughts and at the same time some of its greatest tragedies. Both words of love, such as Shir Ha’Shirim,
(the Song of Songs) written by King Solomon according to tradition and great
acts of destruction have dotted the Middle East’s history.
The
recent war in Gaza saw a new concept applied to the Middle East, the doctrine
of “proportionality.” Many around the
world, and especially in Europe condemned Israel for what they called a lack of
proportional response. This condemnation
of course leads to the questions: “What is a proportional response?” and is the
demand for proportionality in international affairs both realizable and
moral? Before we can judge this
principle we need to consider exactly what the idea of proportionality means in
foreign affairs. The (US) Council of
Foreign Affairs provides historical background on this principle stating: “The doctrine originated with the 1907 Hague
Conventions, which govern the laws of war, and was later codified in Article 49
of the International Law Commission's 1980 Draft Articles on
State Responsibility (PDF). The doctrine is also
referred to indirectly in the 1977 Additional Protocols of the Geneva Conventions. Regardless of whether
states are party to the treaties above, experts say the principle is part of
what is known as customary international law. According to the doctrine, a
state is legally allowed to unilaterally defend itself and right a wrong
provided the response is proportional to the injury suffered.”[i]
To
clarify this concept a bit farther, David M. Crane, a professor at Syracuse University College of Law
has stated: "Every nation has a right to defend its citizens,” "but
you must launch an attack in a proportional way and can't cause unnecessary
suffering for civilians."[ii] It is not
however easy to determine how the doctrine of proportionality meshes with
Article 51 of the United Nations charter which expressly gives states the right
to defend themselves if attacked. Does
proportionality mean a mere tit-for tat response, and even if this tit-for-tat
doctrine is adopted, its meaning is unclear.
If, for example, one side targets a school filled with children with a
rocket attack then is the other side expected to target its enemy’s
school. Taken to the extreme, one
wonders if the US and its allies used proportional responses in WWII. Should Japan’s attack on Pearl Harbor have
been met with nothing more than a US attack against a Japanese naval base? To confuse this principle still further, it
is not clear if the principle applies or not to terrorist attacks. Thus, Horst Fischer in his article ‘Crimes of
War” notes: ““Terror attacks” on the civilian population, or area
bombardments that by their nature do not distinguish between military
objectives and civilian targets, are prohibited, and the principle does not
come into play.” [iii]
The literature then is not
clear as to what a proportional response is, and how such a response is to be
carried out. Do proportionality mean an equal number of victims on both
sides? Is it to be a tit for tat? Does
proportionality work or does it in an age of terrorism only encourage more
victims. To add to the confusion, how does one protect civilians when
combatants, terrorists, or other militants turn civilian populations into human
shields and how do we know when these human shields are willing martyrs to a
cause or have been forced into the role against their will? The issue then of proportionality can even
be taken a step further. Is there such a thing as a proportional response to
evil? If so, is a proportional response
to evil not evil in and of itself? The
philosophical literature on evil is extensive.
How do we define evil? Is there a half evil? In fact one can question if
the good intentions of the principle of proportionality may not in the end
become a root cause of evil. For
example, if we take the idea of proportionality literarily then as Bret Stephens has proposed: “For every single
rocket that falls randomly on Israeli soil, an Israeli missile will hit a
carefully selected target in Gaza. Focusing
the minds of Hamas on this type of "proportionality" is just the
endgame that Israel needs.” Of course,
one may ask if this is not merely a formula for an Orwellian 1984 scenario in which wars never end.[iv] Such a scenario taken to the extreme and read
with a cynical eye, is clearly unacceptable to any rational or moral
individual.
As often the term is applied to Middle Eastern
conflicts. One way of judging the rules of proportionality may be to examine
from the Judeo-Christian world’s perspective, the Middle East’s most famous
work, namely the Biblical text. A
superficial examination of Hebrew Scripture and the Christian New Testament
would seem to fall on the side of proportionality. For example, Hebrew Scripture’s principle of
“Ayin Tachat Ayin, Shen tachat Shen” as seen in Exodus 21:23-27 and in
Deuteronomy 19: 16-21 would seem to support a tit-for-tat concept of
proportionality. While this legal
proposition is often confused in the West with vengeance, even a cursorily
reading would contradict such a conclusion.
The careful reader of the text will note that in all matters except one
(the “Arei-Miklat” or “Cities of Refuge” found in Numbers 35: 9-30) all acts of
proportionality or reciprocity are to be carried out by the courts and not by
the actual victims. Often this legal
principle is called the law of equivalency. Both classical and modern scholars
understand that the guiding principle of the law of equivalency is that the
implementation of such a principle was a means to limit the extent of punishment
and to discourage cruelty. Thus George
Horowitz in his epic work The Spirit of
Jewish Law states: the (Talmudc) rabbis analyzed and compared Biblical
passages…very carefully and arrived at the not unreasonable interpretation that
the(se) commands were not meant literally (Horowitz: 594).[1] The same concept seems to apply in the
Christian world Thus in Matthew 5:38-42 it appears that Jesus was not trying to
abridge this very principle but encouraging people to go “beyond the letter of
the law”
Another aspect of proportionality as found in the
Bible may be called ‘statistical proportionality” For example, Biblical law
provides proportional (statistical measures) for criminal acts. Yet here the
text is careful to provide disproportional responses (you pay more in the fine
that the value of what you steal) as the Biblical text understands that an
exact tit-for-tat response in a world in which not all crimes are caught would
make crime profitable. Furthermore, Horwitz
notes that “In all cases where Scripture required a wrong-doer to pay more than
restitution or actual damages, the excess payment went to the injured party and
not to the government or the community.” (Horowitz: 163)
What is apparent throughout all of the above examples
is that the text never refers to a macro (state sponsored situation) but rather
addresses on the idea of proportionality on the micro level. In fact it can be argued that while there are
no direct texts referring to the principle of proportionality on the macro
level, there are a number of Biblical vignettes that would very much contradict
this principle.
The following will serve to illustrate the point that
while the text views the need for proportional responses on the micro level as
not only necessary but also prudent, it takes a very different approach to
macro level proportionality.
There is no doubt that the Bible and Hebrew Scripture
in particular understand that war is a part of life. Violence begins almost with creation.
Lemech’s mass murders (Genesis 4:23-24) may have been the final straw to break
the camel’s proverbial back and force G’d to decide to eliminate land life with
the non-proportional use of a flood. In
fact, throughout the book of Genesis and Exodus disproportional responses seem
to be the norm rather than the exception.
Thus, in the case of Sodom and Gomorrah (Genesis 18), there can be no
doubt that God’s desire to destroy these cities as symbols of evil is a
disproportional use of force. The same
pattern seems to hold throughout the text. Perhaps the greatest example of
non-proportional response is the Ten Plagues visited upon Egypt’s civilian
population (Exodus 7 et al). The
culmination of this ”war” between Pharaoh and God is the destruction by
drowning of Egypt’s entire army at the Red Sea (Exodus 14:26-31). In the case of Korach’s rebellion against
Moses (Numbers 16), the Earth literally swallows up those who participated in
the failed coup d’état.
Taken together the Biblical tales relating to the
macro level indicate a series of collective principles. Included in these are:
1) There is a major
difference between micro level jurisprudence and international law as
interpreted on the macro level
2) On the micro level the
laws of proportionality apply so as to move hostilities away from the personal
and instead develop a methodology that permits a rational approach to
retribution
3) The micro levels and
the macro levels of reciprocity have nothing in common. In fact, it is a methodological error to
confuse the two.
4) On the macro level,
micro crimes coalesce into collective evil.
5) In the face of evil,
there can be no proportional response. Instead evil must be confronted and
destroyed
6) To choose not to
destroy evil is in and of itself evil
7) Once a war is declared
it is a mistake not to fight to win the war. To fight a half war is to
perpetuate war and thus to do more damage than good.
8) In wars there is
collateral damage. There is however a
major difference between choosing to bring about the destruction of innocent
civilians and the accidental death of innocent civilians. While in both cases unjust death does occur,
the two should not be confused
Writing in the New Republic Michael Walter without meaning
to perhaps best sums up the Biblical view of proportionality. Waltzer writes:
“Proportionality implies a
measure, and the measure here is the value of the end-in-view. How many
civilian deaths are "not disproportionate to" the value of defeating
the Nazis? Answer that question, put that way, and you are likely to justify
too much--and that is the way proportionality arguments have worked over most
of their history.”[v]
When we examine the Bible’s principles concerning
proportional versus non-proportional responses it becomes clear from the
Biblical perspective that those calling for macro level proportional responses
may at best be naive and at worst guilty of seeking a perpetual state of
war. In fact, the Bible seems to
present its readers with the notion that in times of war, the use of
proportionality may be more than foolish, it may be nothing more than an
alliance with evil and thus to be condemned as evil.