Of deans and double standards

One of the featured opinion columns in today’s Minneapolis Star Tribune is by University of Minnesota Law School Professor (and former Dean) Thomas Sullivan and Humphrey Institute Dean Brian Atwood: “Israel and Bush have gone too far.” It addresses essentially the same subject addressed by Professor Orde F. Kittrie in his Wall Street Journal column yesterday: “A war crime at Qana?” In large part Sullivan and Atwood dress up their personal opinions regarding the correct course of action as a matter of policy in a pseudoscholarly guise that has little grounding in fact or law, yet they give the appearance of speaking ex officio. At my request Professor Kittrie has kindly taken a look at the Sullivan and Atwood column and comments:

The column by Sullivan and Atwood contains a fundamental mischaracterization of what jus in bello, the law of how armed conflict must be conducted, says about proportionality. Wars may be fought to defeat the military capabilities of an enemy aggressor and not only as an actuarial exercise. As Joshua Brook put it in an excellent piece in the New Republic Online, whether the amount of force employed by Israel is proportionate to the amount of force used by Hezbollah and whether the number of Lebanese civilians killed by Israel is proportionate to the number of Israeli civilians killed by Hezbollah may or may not be legitimate policy questions, but have nothing to do with the concept of proportionality as that term is used in international law. Once armed conflict develops, a state is simply not limited to responding only in kind. An attacker risks that its armed forces will be dealt a blow disproportionate to its initial attack. As my Wall Street Journal column discusses, Israel is not violating international law in Lebanon. Meanwhile, Hezbollah, Syria, and Iran are continually violating international law in this conflict.

In addition, Israel’s conduct compares favorably to how its most powerful accusers — Russia, China and the EU have behaved when their own interests have been threatened.

China killed hundreds of peaceful Tiananmen Square protestors in 1989. It has for five decades occupied Tibet, slaughtering tens of thousands; and it vows to invade Taiwan if it declares independence. Neither the Tiananmen protesters nor Tibet nor Taiwan has ever threatened to “wipe China off the map.”

Russia has fought since 1994 to suppress Chechnya’s independence movement. Out of a Chechen population of one million, as many as 200,000 have been killed as Russia has leveled the capital city of Grozny. Chechen rebels pose no threat to “wipe Russia off the

All of the leading EU countries actively participated in NATO’s 78-day bombing campaign against Yugoslavia in 1999. The military goal was to stop Yugoslavia from oppressing its Kosovar minority. NATO bombs and missiles hit Yugoslav bridges, power plants and a television station, killing hundreds of civilians. Yugoslavia posed no threat to the existence of any of the EU countries that bombed it.

Compared with how China, Russia, and the EU have dealt with non-existential threats — and despite the law-flouting behavior of Hezbollah, Iran and Syria — Israel’s responses to the threats to its existence have been remarkably restrained rather than disproportionately violent.

Do Atwood and Sullivan believe that the U.S. was acting disproportionately when it took over all of Afghanistan following the September 11, 2001 attacks by al Qaeda terrorists based in that country? When the U.S. killed thousands of civilians in and conquered Germany and Japan following Germany’s aggression in Europe and Japan’s attack on Pearl Harbor? In none of these cases was U.S. existence at stake the way tiny Israel’s is in the face of the stated determination of Iran and Hezbollah to wipe Israel off the map. If Atwood and Sullivan are holding Israel to a double standard, my question is why? Their op-ed certainly does not make a case for such a double standard.

Professor Orde Félix Kittrie
The Sandra Day O’Connor College of Law
Arizona State University
[email protected]
web page: http://www.law.asu.edu/Kittrie

Thanks to Professor Kittrie for taking the time to address these important issues for our readers, especially those of us in the news market dominated by the Star Tribune.

UPDATE: Ray Caldwell writes:

I worked in international security affairs at State for years, including during the deployment of INF to Europe, and I have to say I find this absorption (obsession?) with the issue of “proportionality” to be somewhere between calculated ignorance and terminal partisanship. One of the core elements of US strategic policy for years was (and for all I know still is) that if we were attacked, we considered all response options, including nuclear options, to be open. This meant, among other things, that we were explicitly prepared to respond to a conventional attack by the Soviet Union with nuclear weapons. Well, so much for “proportionality.” A lack of any commitment to “proportionality” undergirded our deterrent posture in the Cold War and may well have helped to ensure the maintenance of peace and stability. “Proportionality” may be appropriate to parlor games, but it could very well encourage conflict in the real world. The left is simply shocked, shocked that there is deterrence going on here, and effective war-fighting where necessary, not just with regard to this conflict but as a message to those out there who weigh precipitating conflicts in the future.


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