Saturday, July 15, 2006

Proportionate Response and the Management of Violent Conflict in International Law

As the war between Israel and Hezbollah continues, the European Union and certain segments of the Western media (by trotting out, for example, the former American Ambassador to Lebanon John Kelly) have been advancing the theory of proportionate response as a criticism of the Israeli action and seeking to use this idea as a basis for coercing Israel to call off its current warlet with Hezbollah. Even Vladimir Putin of Russia has echoed this proportionality theory in calling for a stop to Israeli actions in Lebanon.

The idea underlying this theory of proportionality in international relations is certainly appealing as theory. In the current situation it suggests that while Israel might have been justified in acting to seek the return of its two soldiers, kidnapped by Hezbollah agents, that response had limits. To the extent that Israeli action is not narrowly targeted (judged by the subjective standards of a vaguely constituted international community, it is to be presumed) to obtaining the release of these men, the action would not be proportional and therefore not legitimate. In this context, it is supposed that the Israelis should have taken their cue from American and European responses to kidnappings in Iraq over the last several years, as well as the pattern of responses to similar kidnappings by Hezbollah in the recent past. According to this view, the kidnappings ought to be viewed as a sort of low level banditry requiring some stern verbal measures, perhaps a bombing or two, perhaps even targeted killing (if no civilians are involved), and negotiations leading to prisoner exchanges (if the past is to serve as a guide, then several hundred prisoners in exchange for the two men).

There is a certain logic to this position. It tends to contain conflict. It reinforces patterns of violent behavior that minimizes its collateral effects. It provides both militaries with face saving methods of engagement, and it permits the fighting to continue toward the day when negotiation will lead to a resolution of the underlying conflict. There is a strong socio-political pull for this position within Europe and the United States. Both societies have crafted highly complex and successful legal regimes based on notions of proportionality, due process, fairness and civility. These notions, applied to the internal construction of democratic systems in the E.U. and the U.S. have been extraordinarily successful in ordering the internal life of those political communities, as well as serving as a useful basis for a system of political morals and ethics. Much of what forms the heart of the rules of war and humanitarian law also reflects this notion of proportionality, partially crafted to avoid the excesses perpetrated during the Second World War in Europe.

Indeed, Israel's prior conduct has more or less indicated a willingness to transplant these rules to its conflicts with its neighbors. And it has worked reasonably well, but only to perpetuate conflict a respectably low level, but not to resolve it. And that may be the rub. Systems of conflict resolution designed for communities sharing values, goals and objectives may not translate well to mediate interactions among parties who share little other than the desire to destroy each other. Applied to conflicts like those between Israel and Hezbollah, Shi'a and Sunni Islam in Iraq, or even among the combattants in Sri Lanka, this approach does little more than keep conflict simmering, postponing or even making resolution impossible, or at least not in the interests of the combatants or their allies.

Consider Hezbollah: it has no territorial claims against Israel (except perhaps for the Saba Farms area of the Golan Heights occupied by Israel and claimed by Syria), it primary purpose in its relations with Israel is to work for Israel's destruction and the expulsion of its Jewish citizens. It is also dedicated to the advancement of the Shi'a nation within Lebanon. These positions are foundational and divinely based. Hezbollah has integrated itself institutionally with the state of Lebanon. It is supported passively and actively by wide segments of the Lebanese population.

Assuming that these understanding are roughly correct (and remembering that reality is fuzzier and more nuanced), what does proportionality gain the parties? In this case Hezbollah loses some infrastructure and personnel (through targeted bombing and killings), but infrastructure can be repaired (giving work to the underemployed in the region) and personnel can be recruited (and increasingly so as Hezbollah is portrayed as strong enough to "go against" the "mighty" Israelis). Hezbollah returns a couple of soldiers and receives credit for liberating perhaps hundreds of others. From their perspective Hezbollah has gained much and lost little. It has increased its legitimacy and the support of the population through evidence of its power, through its distribution of jobs and benefits and through its role in the liberation of people who have strong ties to the local population. All of this may also increase its value to other states that might perhaps be looking for a non-governmental entities to do their dirty work for them, in this case Syria and Iran are likely candidates. But Israel gains as well--it has obtained the release of its kidnapped soldiers, it has been able to destroy infrastructure and kill combatants (though because combatants are usually so well embedded in civilian areas will also lose a bit as the number of civilian casualties rise--especially through the death of children and the elderly) and it has maintained at least its own legitimacy within its voting age population. More importantly, it has preserved its relationships with its own set of foreign states interested in managing the events in the area--principally the United States and the European Union (Russian institutional anti-Semitism seems to make them less viable as a partner though more valuable to Israel's adversaries). The United Nations has provided for it an important and open ended mission as monitor/referees within these conflict areas. In addition it can serve as the site of the verbal front of the conflict--a very valuable role indeed. That verbal front, of course, is shared with the global media, for which contained conflict provides a valuable source of viewership, and for local leaders, a global forum (consider the utility of CNN in transmitting the Lebanese Prime Minister Siniora's speech on July 15, 2006 (simultaneously translated for the American audience to which it was broadcast) respnding to the Israeli invasion by calling on the international community to rescue it, and rebuild it). And from the perspective of the management of civilian populations (and especially their utility in the production of communal value), the "innocent" profit since casualties are minimized until the resolution of the conflict in some indefinite future.

From the bigger picture, then, everyone profits to some extent. But nowhere in the analysis is there a sense that such proportional actions will do anything other than reinforce a cycle of these types of activity. It remains in Hezbollah's best interests to kidnap from time to time (or engage in other well modulated acts of violence) and it remains in Israel's best interests to perform proportional negotiation for the benefit of its patrons and the consumption of its electorate. But there is no end in sight, absent the destruction of the State of Israel or that of a military arm of Shi'a Islam. The former American Ambassador, Mr. Kelly, in his CNN interview today, suggested that indeed, this is the consequence, but apparently an acceptable consequence given a fear of the alternatives--large scale regional war.

Perhaps this is the best war to manage conflict which is irresolvable. The emerging legal infra-structure of international law perhaps ought to be focused on the creation of institutions designed to manage conflict rather than resolve them. There are Western models that may prove of value in institutionalizing this reality of international relations: the rules of engagement in Renaissance Italy certainly provides a model of self-perpetuating conflict that never really boiled over very much or very often. There are many benefits to state and non-state actors. But perhaps the greatest benefit is the most frustrating one--postponement of resolution. There is a little of the counter-intuitive here. Why might postponement be a positive value, especially where the parties continue to engage in bounded and sometimes violent conflict in the meantime? But there is a logic to this position. Negotiation can succeed only where differences between the parties to the conflict are not irreconcilable. In the face of irreconcilable differences, the parties might have to be left to their differences, perhaps for a long period of time. This requires a toleration of conflict within strict boundaries. Resolution then becomes possible only when, through changes made manifest over time, the basis of the conflict becomes irrelvant or obsolete. The world can then go about its business. That, in essence, appears to be the European approach as it seeks to institutionalize its approach to crisis management.

But there are risks. An international relations framework of conflict management could easily slide into an international relations of chaos. Conflicts are easier to contain in theory than in fact. The world is littered with examples of containable conflict bursting its boundaries in the Balkans, in Rwanda and Uganda, in South Asia, and the like. The risks may be acceptable for Europe--managing conflict can be profitable and postpone more painful issues. Risks can be useful to Russia, especially as it seeks to firm up its relationship with Shi'a Islam in Iran and cut a deal on its own irreconcilable conflict in Chechnya (a conflict in which application of the rule of proportionality is very much not in evidence). But for the people being "managed," the status quo may be uncomfortable indeed. Yet management appears to be the coin of the realm in the field of international law and relations. To the extent that the global economic system is not threatened, irreconcilable conflict must be left to fester within acceptable boundaries increasingly sketched out by law, custom and practice.

The Isreali response rocks the foundation of this nascent international system of conflict management. From the Israeli perspective, this response might have made sense. It is engaging Shi'a rather than Sunni Islam in Lebanon and it is attempting, by destroying the capacity of segments of the Lebanese population to engage in state and non-state sponsored violence, to make it possible to focus on the resolution of the conflict with the Palestinians (and hopefully aid in the creation of a viable Palestinian state). It may have gambled that its actions would play well among its closest allies and within the Israeli population and that it will be rewarded by its role in the global war by proxies with Iran. And it likely realizes that in the long run, managed conflict based on the current status quo will be disasterous for Israel given the demographic imperatives of the region. Ironically, Hezbollah may welcome this heating of conflict as well--as a means of testing its new military equipment and troops, as a way of cementing its relations with Iran, as a means of destabilizing the Lebanese state and increasing its power within the Lebanese state apparatus, and in its gamble that the rules of conflict management will eventually stabilize the situation well before any disasterous military defeat at the hands of the Israelis. And both sides will use the heated activity in the verbal front of the conflict--in the media, in the halls of the organs of the United Nations, in the press, on authoritative internet sites. Perhaps the success of the Israeli response will be measured by its effect on the status quo from which the conflict with its neighbors will be managed. The coming months will be telling indeed.


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