World | Books & Ideas

Taking Just War Seriously in Gaza

July 31, 2014

Soldiers in a half-track travel along the Gaza strip, August 1954. Photo: Government Press Office.

On the PBS NewsHour evening news broadcast of July 16, reporter Margaret Warner interviewed the Israeli Ambassador to the United States, Ron Dermer. She asked whether the then approximately 200 deaths of Gaza civilians (now estimated over 1000) as a result of Israeli attacks did not show that Israeli use of force is disproportionate. This is an argument that comes up frequently around the conflict in Gaza, and a major criticism of Israel.

Ambassador Dermer first claimed that some of those who spoke of disproportionate force were merely comparing the number of deaths on each side—for example, 200 civilians dead in Gaza with 1 Israeli civilian—to decide if the military action is proportionate and doing so, he said, involves “not understanding the rules of war.” He noted that many more Germans were killed in World War II than Americans, so the imbalance alone was no reason to say the war violated proportionality. “Proportionality,” he said, “has to do with something else entirely. . . . Always make a distinction between combatants and noncombatants. . . . We [Israel] do not deliberately target Palestinian civilians.” He contrasted deliberately targeting the civilians, as he said Hamas does, with causing deaths of civilians only as a side effect, as the Israelis sometimes do.

I found parts of the Israeli Ambassador’s response puzzling and worrisome.

 

What is Proportionality?

My first concern about his response is that proportionality in war is not about whether one deliberately targets or merely foresees and causes side effect deaths of civilians. Not deliberately targeting civilians either as an end or as a means to an end is a separate condition on the morality of war that Hamas may indeed be violating. Deliberate targeting of combatants or opponent’s military facilities is, of course, permissible.

Proportionality in the standard rules of war is about whether the harm that will be caused by military action is proportionate to the goal of the war or an individual military action. Most importantly, unintended side effect deaths of civilians are included in the harms that must be weighed against achieving the goal of the war or a military action to decide whether the use of force is proportionate. However, harm to enemy combatants, whether deliberate or produced as a side effect, is not standardly thought to count against achieving the goals of a military mission. This is one reason why military actions are not considered disproportionate if many more enemy combatants are killed than one’s own combatants. This is also why it is wrong to compare deaths of civilians on one side with deaths of combatants on the other on a one-to-one basis.

The use of force is not disproportionate merely because more civilians are killed on one side than the other.

In addition, as the Ambassador noted, the use of force is not disproportionate merely because more civilians are killed as side effects on one side than on the other side. But this is not because the deaths are not deliberate. Rather it is because the greater number of deaths on one side could still be proportionate to achieving the goal of military action and that is what the proportionality condition is about.

So while the Ambassador is correct in saying proportionality has something to do with the distinction between combatants and civilians, he is not correct if he thinks that it excludes counting deaths of civilians caused as a side effect and not from deliberate targeting. It is surprising that a high government official would not be aware of what the proportionality condition involves. It would be very serious if other government officials also were not aware of this and it is important that the public monitor this aspect of government awareness. It may be that 200 or more side-effect deaths of civilians (Palestinian or Israeli) are not disproportionate to the Israeli goals, or they may be disproportionate. The proportionality condition does not itself tell us what is proportionate or disproportionate to the goal a country is trying to achieve. However, it does tell us something about what ought to be considered in making that decision, and that can include civilian deaths that are not the result of deliberate targeting. So some of those who say Israeli force is disproportionate may not be comparing civilian losses on both sides but rather claiming that side effect civilian deaths are out of proportion to the goals being sought by the military action.

 

Permissibility and the Goals of War

However, that a war and actions in it meet the proportionality test in the rules of war is not sufficient for permissibility. This is because the proportionality test is applied independent of other tests that must also be considered. For example, suppose there is some other not too costly and much less harmful way to achieve the goals of war or actions within it. Then, given that proportionality only speaks to the relations between goals and harms, the fact that the more harmful way to achieve the goals is still proportionate does not mean that the more harmful way to achieve the goals would be permissible. This is because they are not necessary and so fail the necessity test in the rules of war.[i] (Furthermore, if proportional and necessary means that impose collateral harm on civilians are unlikely to be successful in achieving goals, this can also make them impermissible.)

One way of thinking of the highly successful Iron Dome antimissile defense system that Israel uses is that it is a less harmful way of achieving many of its goals by comparison to attacks on Gaza. However, it is not perfect and sometimes a missile breaches Israeli defenses. (Even if it were perfect in stopping missiles, it does not stop other infiltration mechanisms such as tunnels and it does not achieve the goal of getting others to recognize Israeli sovereignty.) Nevertheless, suppose, for argument’s sake, that breaches occur rarely and these breaches were the primary source of harm to Israelis. Then it seems that we would have to reconceive Israeli’s goal in attacking Gaza: the goal of the attack would not be to defend many Israelis from attack but only to defend a few from attack. Then it is relative to this “reduced” goal that we would have to decide if civilian casualties as a result of attacks on Gaza were proportionate. To do this proportionality calculation, we would have to estimate how many Israeli civilians would be killed if the attacks on Gaza did not occur relative to the number of Gazan civilians that would be killed if the attacks occurred. The fewer Israelis that would be saved and the more Gazan civilians that would be killed, the less likely the attack is to be proportionate, at least to the goal of preventing harm to Israelis. Notice that comparing how many civilians on each side would be killed depending on whether the attacks on Gaza take place is not the same as comparing how many civilians have been killed. Hence, though it involves a comparison of expected deaths, it does not involve the sort of comparison of which the Ambassador originally complained.

 

Deliberate Targeting of Civilians

A final concern raised by the Ambassador’s remarks that I shall discuss here is what is meant by “deliberate targeting.” One of the claims repeatedly made by Israeli leaders is that Hamas uses civilians as “human shields” because it deliberately places rocket launchers in the midst of civilian areas, presumably when it could do otherwise. (Also, presumably, Israeli leaders are implying that Israel does not place its rocket launchers similarly.) Suppose the Gazan civilians really are used as such deliberate shields (or at least are unavoidably put in the position that a human shield would be put in). This suggests that if Israel were to attack the rocket launchers, it would kill civilians in a way comparable to shooting through a hostage attached to the front of an attacking tank; it would need its shots to occupy the same physical space as the human shield occupies, on the shot’s way to reaching the military target. This seems to be a form of “deliberate targeting” of the civilian shield rather than a side effect death, even though it is not as a civilian but merely as an occupant of a certain physical space that the civilian must be aimed at. (In another scenario, civilians might be placed inside the military equipment so that the shots need not pass through where they are in order that the equipment be reached, yet there is no way to precisely target the military equipment that does not include targeting the civilians. Elsewhere I have called this “intratarget killings”.[ii] By comparison, an ordinary side effect death would occur if the civilian was, for example, beside the launcher and not in it or blocking it.)

Hence, it seems that the more accurate the Israeli claim is that Palestinian civilians are used as actual human shields, the less accurate it is to say that those civilians are not being “deliberately targeted,” and the less the permissibility of attacks can depend on the claim that there is no deliberate targeting of civilians, contrary to what the Ambassador emphasized. Nevertheless, this should not, I think, necessarily imply that the attacks are morally impermissible. Suppose a tank with a human shield attached is headed toward killing people and the only way to stop the tank’s attack is to shoot through the hostage placed there by the person who runs the tank. It may well be permissible to shoot if this will stop the attack on many people. (The rules of war should take account of such cases in refinement of its condition on not targeting civilians.) On the other hand, if many civilians are attached as shields to the tank, and the tank would kill far fewer civilians were it to continue, it may violate proportionality to shoot to achieve the goal of stopping the attack. So again the calculation of expected civilian deaths that would occur on each side, depending on whether a military device is attacked or not, is necessary.

• • •

I have described some aspects of the proportionality condition as standardly understood. There are those who think it should be revised, for example so that deaths of combatants could also count in deciding whether use of force is disproportionate to the military goal. Further, in connection with the duty not to target civilians deliberately, some think there should be an additional requirement: to aim at not harming civilians rather than merely not aiming to harm them. So when Israel sends advance warning of its attacks on combatants or military facilities that may take civilian lives as a side effect, it shows that it is aiming at not harming civilians, at least if it gives them time to escape.[iii] If Israel did not do this, but merely did not deliberately target civilians, it would still meet the standard requirement not to aim at harming them. But, I have argued, its aiming not to harm or not aiming to harm would not yet tell us whether it satisfied the proportionality requirement, contrary to what Ambassador Dermer suggests, or several other requirements of the rules of war.



[i] Some of these points about what proportionality is and its being distinct from necessity were independently made by Michael Walzer during the 2009 Gaza war in his January 8, 2009 New Republic commentary. (I thank Thomas Scanlon for drawing my attention to that article.) It does not seem that the points have yet been absorbed by all government officials and hence bear repetition as well as further elaboration.

[ii] See my Ethics for Enemies: Terror, Torture, and War (OUP, 2011), Chapter 2.

[iii] Whether Hamas uses civilians as shields and whether Israel gives adequate advance warning was debated on the PBS Newshour on July 24.

Comments

I don't understand the point about the reduced goals: if I understand you correctly, probably no side in any war has ever been 'proportional.' Japanese and Axis powers attacked Hawaii and shelled (unsuccessfully) a few spots on the West Coast, putting a tiny fraction of Americans at harm. According to your logic, a proportionality calculation should have been made re how many Americans would have been spared if Japan didn't attack after 12/7/41 (i.e. 0) vs how many civilians US may have had to kill during WW2. As I understand it, the idea hinges on whether a military goal is *reasonable.* In that case, there is no 'reduced' goal. I think most people would agree that stopping someone from shooting missiles at your people (even if you do have the technology to defend yourself against the missiles) is a reasonable goal. I think most would agree that destroying tunnels used to smuggle people and materials across the border for the express purpose of creating violence in the bordering country is a reasonable goal. Once those goals are determined reasonable (which they should be immediately), the only question becomes 'how many civilian deaths can we prevent in achieving these goals?" The leafletting, the "door-knocks", etc are Israel's attempt to answer that question well, but can only go so far when the missiles are being stored in, and shot from, civilian centers; when the tunnels lead in and out of civilian centers and are booby-trapped, etc. Since people like to think of proportionality as some simple equation, perhaps this is a good way of thinking about it: if 90% of the missiles, tunnel entrances, etc, are among civilians, then it 90% of the deaths being civilians would be perfectly proportional, no?

@MC: That is a long string of red herrings. 
-How far back do these tunnels date and how many civilians have been killed because of them? Almost a decade and 0 civilians have died. Compared to 9 IDF... which empirically proves they are for warfare rather than terrorism.
-How many more Israelis have died due to Hamas rocket/mortar fire in the past decade relative to Israeli casualties in this war? Actually there have been more Israeli deaths in the current ground offensive.
-Israel also happened to launch an airstrike last month prior to the Hamas rocket fire. Which is interesting given that Hamas had obeyed the 2012 ceasefire up until this bout of retaliation.

@2v: This is some rather dodgy reasoning, isn't it?

How far back do these tunnels date and how many civilians have been killed because of them? Almost a decade and 0 civilians have died. Compared to 9 IDF... which empirically proves they are for warfare rather than terrorism.

At most, this shows that the tunnels have so far been used only in successful attacks against soldiers. This is hardly evidence that an eventual attack on civilians wasn't part of the plan in constructing the tunnels. Building the undergound city was a vast undertaking, and I don't see how anyone can confidently rule out the possibility that a largescale attack on civilians was part of Hamas's big picture in building it. 
 

Given that no civilian lives have been lost, are you implying that it is justified to sustain a forceful invasion and destroy them on the premise of terrorism while increasing the civilian toll? 
Lets not forget that Egypt destroyed as many as a thousand of Gaza tunnels from its own border without killing civilians. Is Israel incapable of doing the same with superior technology? This brings us back to the dodgy assumption that Israel can only make progress through military tactics.
Why hasn't it been mentioned that many of these tunnels have also been used to smuggle food and goods to an impoverished populatoin?

The tunnels from Egypt are mainly to bring supplies into Gaza. The tunnels into Israel exist solely to stage attacks on Israel. If you look at some of the footage that's been posted online, you'll see that the attack tunnels are hidden in fields and are hard to see until someone comes out of them.
 
Egypt can spot the supply tunnels more easily because its forces can observe the movement of goods and people above ground on the way to the tunnels. Israel has to wait until someone pops out of the tunnel before it can spot them.
 
And no, I don't think a country has to wait until its civilians have actually been killed before it can legitimately address a threat like this. In other words, I don't it has to expose a potentially large number of its civilians to that kind of risk to justify addressing the threat. If anything, a successful mass casualty attack inside Israel, at a time of Hamas's choosing, would likely result in a scenario in Gaza even more horrific than the one we're currently seeing.
 
What might be reasonable is to say that Israel should have sought ways of addressing the tunnel threat that were less invasive. I would be interested to hear how.

"At most, this shows that the tunnels have so far been used only in successful attacks against soldiers. This is hardly evidence that an eventual attack on civilians wasn't part of the plan in constructing the tunnels."
 
That is too weak a criterion. The fact that the tunnels have for years been used only for military, not terrorist, action is some evidence for the claim that they are military facilities. To outweigh that evidence you would need to amass some other, stronger evidence that the tunnels will be used terroristically (to target non-combatants) at some future time. You have not given any such evidence. If we accepted your lax criterion we could also turn it towards Israel: the fact that Israel has not (assume, very generously, for arguments sake) terroristic aims with its armed actions against Gaza is "hardly evidence that an eventual attack on civilians wasn't part of the plan". In either of these two applications, and in other applications too, your criterion is too weak.

Too weak a criterion? Did I propose a criterion for something? I don't think so. It seems to me that I merely pointed out a questionable a bit of reasoning.

The argument that the civilians are deliberately targeted in human shields cases is obscure.  Why does the fact that one must shoot through the civilians count as deliberately targeting them?  If I am at the shooting range, and there is a swarm of gnats in front of the bull's-eye of my target, am I 'deliberately targeting' the gnats?  Of course not.  It may be inevitable that I shoot through the swarm of gnats in order to hit my target, but I am not targeting them. 

I don't follow this reasoning:

Nevertheless, suppose, for argument’s sake, that breaches occur rarely and these breaches were the primary source of harm to Israelis. Then it seems that we would have to reconceive Israeli’s goal in attacking Gaza: the goal of the attack would not be to defend many Israelis from attack but only to defend a few from attack.

Why wouldn't the goal still be to defend many from attack? Even if the risk to each potential victim decreased, the number of potential victims wouldn't.
 
Also, wouldn't people still have to run to bomb shelters several times a day? And couldn't that have a significant impact on people who are especially close to the missile launchers and have maybe 5 seconds to get their families to a shelter? Would that count as "harm" to those individuals? For that matter, could preventing disruptions to a community and economic life in a part of a country also be legitimate factors in in determining the goals for proportionality? If so, how would you factor them in?

Yes it should be factored in that people have to deal with an average of 5 or so rockets per month. 
That doesn't particularly justify the civilian death toll though.

Oh, I thought the scenario was more of hypothetical illustration.
 
If we're really only talking about an average of 5 rockets a month, that doesn't seem like such a big deal. In terms of just war theory, wouldn't it be better, though, if the recipients knew specifically how many rockets there would be, and even when they were coming (according to a set schedule, for example) so that they could plan to be near the bomb shelters at those times?

Non-lethal harms, large and small, should count but their weight against civilian deaths in a proportionality calculus is much lower (lower in proportion to the size of the harm).

This is a poorly thought out line of argument.  A state's first duty is to protect its citizens; the goal of stopping rocket fire deliberately aimed at those citizens (a war crime) is it's sovereign duty.  Whether that rocket fire generally kills people or merely traumatizes them is irrelevant; military force is warranted to respond to that rocket fire.
Once that has been established - and I invite you to move to Sderot if you disagree, and report back in a year - the question is not whether the civilian harms caused in the enemy population are proportional to the notional harms to one's own civilians caused by simply allowing them to be shelled, but whether the harms caused to the enemy population are proportional to the goal of maintaining sovereignty and preventing enemy assaults on the State's civilians and territory.

Slaughter is slaughter and is indefensible  no matter who is doing it to whom. All right thinking people should be searching for more profound and effective means of preventing wars.

The essay above is more than anything else an excuse to extemporize philosophically on the subject an ongoing war. It's a discussion of ideas. The pure beauty of ideas is that they're certain, while facts are debatable. References to data are in the footnotes and refer to disscussions elsewhere.
Footnote III: "Whether Hamas uses civilians as shields and whether Israel gives adequate advance warning was debated on the PBS Newshour on July 24."
From the Newhour transcript

With all due respect, Amos, we’re reverting to this talking point that Hamas is using human shields. Again, there is absolutely no evidence for this. It’s Israel’s word against the United Nations, against Amnesty International, Human Rights Watch, Physicians for Human Rights Israel, Breaking the Silence Israel, as well as the National Lawyers Guild.

Human Shields in Lebanon 2006

Reports from the ground in Lebanon confirm that the IAF has expanded its target envelope, hitting sites that were considered off limits just 48 hours previously. Unfortunately, as nearly every military expert knows, precision weapons are not that precise -- and a miscue of even ten meters can make a huge difference. This is what happened at Qana. Nor, it seems, do IDF officers take seriously the more graphic defense of IAF targeting, as justified because Hezbollah uses human shields. Israel also co-locates many of its basing operations in cities and amongst the civilian population -- simply because of the ease of logistics operations that such co-locations necessitate. "The human shield argument just doesn't wash and we know it," an IDF commander says. "We don't expect Hezbollah to deploy in the open with a sign that says 'here we are.'"

There are other definitions, and Helena Cobban, an editor at Boston Review, discusses them well. Also from 2006

The text of the HRW press release is now available on-line. It is titled OPT: Civilians Must Not Be Used to Shield Homes Against Military Attacks.
In Sarah Leah’s emails to me she has stressed two points: (1) The point, also made in the press release, that ““Whether or not the home is a legitimate military target, knowingly asking civilians to stand in harm’s way is unlawful.” And (2) that for Palestinian military commanders, in particular, to ask civilians to act as “human shields” in this way represented an unlawful attempt to pur civilians at potential risk.
I have pointed out to her that by these lights, for Mandela (who was a military commander, much more than Ismail Haniyeh– who was quoted in the HRW release– ever was) to call for South Africa’s non-whites to engage in nonviolent mass actions against the apartheid regime, which were often very risky indeed, would also likewise have been considered “unlawful” or even– as HRW grandiosely terms the situation in Gaza “a war crime.”

Now that we're done with that, lets widen the context.
The West Back and Gaza are occupied territories, and Israel refuses to accept that definition, legally or morally.
2004 

"The significance of the disengagement plan is the freezing of the peace process," Prime Minister Ariel Sharon's senior adviser Dov Weisglass has told Haaretz."And when you freeze that process, you prevent the establishment of a Palestinian state, and you prevent a discussion on the refugees, the borders and Jerusalem. Effectively, this whole package called the Palestinian state, with all that it entails, has been removed indefinitely from our agenda. And all this with authority and permission. All with a presidential blessing and the ratification of both houses of Congress."Weisglass, who was one of the initiators of the disengagement plan, was speaking in an interview with Haaretz for the Friday Magazine."The disengagement is actually formaldehyde," he said. "It supplies the amount of formaldehyde that is necessary so there will not be a political process with the Palestinians."

I've quoted that passage for years and it's been used recently by Mouin Rabbani in the the LRB:
"Israel 'Mows the Lawn'" Read it to find out the meaning of that phrase, and what it means as well to put Gaza "on a diet" Read it before thinking about "Just war"
Michael Walzer is a Zionist. Liberal Zionist Peter Beinart, defines Zionism 

I'm not asking Israel to be Utopian. I'm not asking it to allow Palestinians who were forced out (or fled) in 1948 to return to their homes. I'm not even asking it to allow full, equal citizenship to Arab Israelis, since that would require Israel no longer being a Jewish state. I'm actually pretty willing to compromise my liberalism for Israel's security and for its status as a Jewish state. What I am asking is that Israel not do things that foreclose the possibility of a Palestinian state in the West Bank, because if it is does that it will become--and I'm quoting Ehud Olmert and Ehud Barak here--an "apartheid state."

Chiam Gans defends Liberal Zionism

In his book “The Law of Peoples,” John Rawls makes a distinction between people in terms of their moral perfection. At the top of the ladder he places “liberal” peoples – those who maintain democracy and equality among themselves. After them, he ranks peoples that he calls “decent” – the type that does not maintain democracy or equality, but instead has a hierarchy of rights pertaining to different groups and communities. At least such people protect the human rights of those under their rule.

What profound generosity from the heart of the conqueror.
Zionism is and has always been Jim Crow. The occupation is run under Apartheid. Liberal Zionism is an oxymoron, and yet people who describe themselves as Zionists desccribe themselves as liberals. I'm not a sticker for Aristotelian logic is a messy world, but those who are, who pride themselves on their pedantry, should be more careful.

What definition are you referring to here?

The West Back and Gaza are occupied territories, and Israel refuses to accept that definition, legally or morally.
 

And what does it mean to "accept that definition, legally or morally"?

If you want to be a pedant about Just War, and neither of us do, you need to take into account that fact that Israel ignores all the relevant legal authorities regarding the West Bank and Gaza. It doesn't recognize the occupation for what it is.
 

Wait a minute...You definitely made it sound like there was a particular definition you were referring to. That would make perfect sense if you were making a claim about international law. But in that case, it seems very reasonable to ask you to provide the definition. Otherwise, you'll have made it sound like you were saying something with a precise meaning when you were really saying something rather vague. 

Hypothetical question to anyone who thinks that the current israeli strikes into gaza that have caused 1000+ civilian palestinian deaths pass a rules of war proportionality test: if Hamas were to aquire a strong airforce with bombing capability, would it be proportional for Hamas to bomb half of the area of a major israeli city into rubble a day after sending warnings to all city civilians through sms messages?

Prof. Kamm,
I am afraid that you are being imprecise as to the law of war in regard to proportionality and human shields. You appear not ot take into account that it is the duty and purpose of a state to protect its citizens, and that a state is deemed to have a lesser obligation in regard to the citizens of another state in carrying out that duty. The fact that a threat from an enemy state may only endanger a small number of its citizens does not mean that the state must refrain from protecting its own citizens if the alternative means causing harm to the citizens of the enemy state. In this case, you also appear to be confusing the concept of proportioanlity jus ad bellum with the concept of proportionality jus in bello. In the case of Gaza, considerations of jus ad bellum are moot, as we are concerned with an ongoing conflict. 

As for whether "human shields" are directly or indirectly targeted, this is interesting from a philosophical perspective, but in terms of the law of armed conflict, human shields do not render a target immune. The presence of civilians at a legitimate military target does not prohibit attacking the target, even though the death of those civilians may be a natural and unavoidable consequence (and thus "intentional" in the criminal law sense that an actor is presumed to intend the foreseeable natural consequences of an action). What the presence of civilians requires in the international law of armed conflicts is that the attacking force take account of proportionality, i.e., that it weigh whether the harm to the civilians will be clearly excessive relative to the expected military advantage.  If the proportinality test is met, then causing the death of the civilians is not prohibited for the attacker, whereas the party using the human shield has perpetrated a war crime.
Arguably, the approach you appear to propose (as opposed to that of Geneva IV,  Protocol I and the ICC Statute) would incentivize the use of human shields. This is particulalry problematic in the case of assymetric warfare, inasmuch as non-state actors already lack suffcient incentive to observe the rules and customs of war. Thus, one might argue that your approach to civilian shields is less moral than the approach you criticize.

This response raises a number of interesting points, and touches on a concern that I had about many recent discussions of just war theory in connection with Gaza.
 
One of the concerns I've had—though I hadn't quite expressed it this way—is that just war theory, as many seem to understand it, has some disturbing implciations.
 
In particular, it seems to create perverse incentives to get one's civilians killed so that the other side's actions seem disproportionate.
 
I also wonder whether just war theory isn't predicated on the assumption that each of the warring sides has at least some minimal concern with safeguarding its own civilian population. If so, just war theory may not straightforwardly apply to Gaza, whose rulers seem to have displayed an inversion of concern with the welfare of the civilian population.

The most clarifying example from Prof. Kamm's piece is the following: "On the other hand, if many civilians are attached as shields to the tank, and the tank would kill far fewer civilians were it to continue, it may violate proportionality to shoot to achieve the goal of stopping the attack."

Were the tank approaching me, I would shoot. Any nation would shoot an attacker, no matter how many human shields the attacker has surrounded himself with. 100% of the commentors on this article would shoot. Professor Kamm would shoot.

This quotation from the Hamas Charter highlights the problem of confronting a governing body that sees holy war as its fundamental purpose: "Allah is its goal, the Prophet is its model, the Qur'an its Constitution, Jihad its path and death for the case of Allah its most sublime belief." (Article 8)
What is a combatant to do when the foe defines all of its citizens as holy warriors? And since the Hamas charter is explicit that there should be no peace process but only war until the State of Israel is destroyed (Article 13), what should be Israel's negotiating strategy?

First, if we want to divide things, we'd need to separate Israeli responses to rocket fire from Israeli responses to tunnels. The former involves firing into Gaza from planes and drones and some artilerry. The latter involves going into Gaza and fighting it out on the ground. These are two different types of warfare. The intenstiy of the lattter invites and requires much more direct force: e.g., because of intense fiire, the Israelis called for artillery fire at their own units, after ordering their men to take shelter in heavily armored vehicels. This kind of warfare causes destruction. It always does. That is not a question of porportionality. 
It's mind-blowing to think a professor would lump themse together as though the direct destruction caused by ground battle is the same. It isn't that tunnels might only kill a relatively small number of Israelis - who might also be kidnapped and held for ransom - but that they only way to attack tunnels cut into the country of Israel across the Gaza border is by direct ground assault. 
The professor also ignores a very basic concept, meaning distance and its relation to proportionality. In most of the fighting, including all but one of the strikes in and very near UN facilities, the distances were meters. I remember, for example, the Goldstone Report discussed that Israel responded to fire it believed was coming from in or next to a UN school but that fire was, it said, more likely to have been from 85 meters away. Put in the abstract that sounds like distance but in reality it's about the distance from the back of your yard to the street. It's less than a football field. It isn't as though they struck a school a mile away from Hamas' positions. The issue for proportionality is simple: if you're firing at a source of fire and the distances are tight, then people will get killed. One can say, "Well, don't fire then" but of course the other side is firing at you. 
A second example is the one strike outside a UN facility. The assumption is that the drone operator or pilot knew or had somehow overlaid on his computer screen the exact coordinates of a UN facility as it tracked a target (on a motorcycle) looking for a relatively clean shot. War is not television. To apply a standard of perfection is itself disproportionate because it assumes perfection in warfare is possible ... or at least that Israel should be held to a standard no one can meet. 
Second, on a deeper level, Israeli response harks back to the concept of an eye for an eye as the limit of vengeance, not as a requirement but as a limit on what can be done. This speaks to the tunnels versus rocket and mortar fire from Gaza. What are you to do? If you look at the satellite photos, you see small areas of intense destruction and other areas where individual buildings have been hit. (This includes hitting the homes of those who run Hamas because they strike at you.) If Israel's response were truly disportionate, Gaza would look like Grozny after Russia wrecked it or Fallujah after we wrecked that. Instead you see intense destruction where the tunnels are located and that correlates with the high violence level of the fighting, the extent to which tunnels were located in homes, mosques and other buildings and over 1000 IED's installed in those areas. 
I have to say this article was close to idiotic in its level of reasoning.

Other important distinctions in proportionality are:
1. the arming and financing of each side. Israel (already a fully developed country) is armed and financed by the most powerful and richest nation on earth. Palestinians are not allowed to be armed by anyone at all. 
2. Palestinians are surrounded by walls, barriers, barbed-wire and checkpoints and have no option at all of escaping Israeli attacks. Israelis have the complete freedom to move as they please. They can, if they choose, decide to move to safer territory, no one will stop them. 
3. And in response to the human shield, as shown by the murder of three children on a beach who were playing in the sand and not a single Hamas militant anywhere - this is a blatant lie. Israel has the money (again from the US) to pay for a very sophisticated and expensive PR campaign. Palestinians do not. 
4. I've often heard Americans talking about how 'primitive' Palestinians are - I would like to challenge any American to live a life of luxury, freedom and possibilities in Gaza. 
 

 
 
"Proportionality in the standard rules of war is about whether the harm that will be caused by military action is proportionate to the goal of the war or an individual military action."
 
Israel has most certainly not acted with proportionate force. Of course no one asks if  Hamas acts with proportionate force, let alone "Professor" Kamm.
 
And what are the goals of Hamas?
Hamas founding charter 1988
Article 7
"The prophet, prayer and peace be upon him, said: The time will not come until Muslims will fight the Jews (and kill them); until the Jews hide behind rocks and trees, which will cry: O Muslim! there is a Jew hiding behind me, come on and kill him!"
 
A survey of videos on the internet reveals how Hamas plans to put that into effect.There are children's programs extolling children to kill of Jews. Thus they recruit a genocide brigade for the future
 
That is Hamas's goal. And its military action?
To fire thirty five hundred missiles at the civilian population of Israel, and to invade Israel with terror tunnels  terror That it did not achieve its goal was only because it hasn't as of yet the technical sophistication to do its desired damage or to overcome Israel's defenses.
 
And what are Israel's goals. To protect itself against the genocidal intentions of Hamas.
And its military action? To knock out the rockets and  tunnels by targeting combatantswhile as much as possible not inflicting civilian casualties. A very difficult task giventhe combat conditions the IDF finds itself.
To obtain  the proper proportionality that is so demanded by the UN I propose an equality on both sides. Israel should abandon its limited goals of just eliminating hostile offensive targetsand change those goals into finding Arabs, both behind and in front of rocks and fire every rocket, artillery shell and bullet in order to carry out its wartime goal of preventing yet another holocaust, this time by Arabs
Surely the world can't complain if both sides war with each other with equal proportionality
 

lost in the haze of the current warfare is the fact everything was relaitvely quiet until Hamas decided to kidnap and brutally murder 3 innocent Israili teenagers. Of couse Israel had to respond. Hamas does not like calmness - it only wants things racheted up to spur on their goal of the destruction of Israel. 

Hamas didn't kidnap the teenagers.

Professor Kamn's book is typical of what passes these days for serious philosophy, but whatever its merits it's far too complex anissue to be discussed meaningfully on a blog site where posters on all sides tend to be so partisan in defending their 'scred beliefs' that the collateral intellectual damage far exceeds relevant analysis.

What kind of game theory are you playing.
The winner always kills disproportionaly more than the loser.
Last time I looked Algeria was still ranked lower than France.

Does anyone still seriously believe, post NSA revelations, that Mossad did not know about those tunnels? Israel needed a pretext to destroy those tunnels. Hamas was not firing rockets into Israel when those three Israeli teenagers were murdered. Who was behind that? Oh, Hamas of course. No need for an inquiry. We have the usual suspects in the frame. (Who shot down Flight MH17? Oh, Russia of course. Why do you even ask?) Cui bono? In whose interest was it that three Israelis were murdered? Who needs a lynch mob, when you’ve got US hardware?
 
Remember Kristallnacht? Who burned the Reichstag? And the Nazi Brownshirts? Every despotic regime has tried to emulate this brilliant Nazi strategy. Provoke those who are weaker than you to do something rash. Then attack with all the righteous indignation you can muster.
 
Hitler’s Brownshirts were criminal thugs who ensured the trains did not run on time. Then when Hitler was “democratically elected” Chancellor, the Brownshirts disappeared. Overnight. The trains ran on time and Hitler was the saviour of Germany. Ernst Röhm, the SA leader, having faithfully served Hitler’s purpose, was eliminated.
 
The ultra-orthodox settlers make it their business to constantly provoke the oppressed Palestinians. Meanwhile, the majority, secular Jewish Israelis, who detest the anachronistic excesses of the ultra-orthodox, can relax and enjoy the fleshpots of Tel Aviv undisturbed.
 
Hamas denies any involvement in the murder of those three Israeli teenagers. Well, they would, wouldn’t they. But what if both Israel and Hamas saw that as an opportunity, itching for a fight? How difficult is it to arrange a convenient atrocity? We know Mossad is capable of unconventional stratagems with impunity. Then, in righteous retaliation, “enraged” settlers burned a Palestinian youth alive. Then the rockets started landing pointlessly in uninhabited Israeli territory. The rest is textbook stuff.
 
The status quo suits both agendas. The Zionists need Hamas to prove to the world (meaning AIPAC) that Israel is constantly under threat. Hamas needs the Zionists to prove that Israel is a brutal, apartheid regime. Neither side can afford “lasting peace”. Without the perpetual existential threat, AIPAC’s very raison dêtre would wither on the vine. And the fundamentally fragile Israeli polity would quickly collapse, like the house of cards it has always been.

Just war theory aside, I think we should all be able to recognize that Hamas imposed the last 9 years of conflict and misery on the Palestinians for its own twisted reasons.
 
Those of us who genuinely support the Palestinian struggle for statehood understand that Hamas needed to be dealt with before any progress could be made. Now it's time to support moderates on both sides and hope that everyone has grown up enough to see how essential that progress is.

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