Amichai Cohen on proportionality in the laws of war

Several years ago, while I was drafting an expert declaration on the laws of war applicable to the use of Agent Orange in Vietnam, the brilliant young Debevoise & Plimpton lawyer Anthea Roberts, liasing with me for her firm, suggested that I should turn that research into an article on proportionality in the law of war.

Well, true, I find the topic extremely important and interesting, but didn't take it up at the time on the view that it was too obscure for anyone but a few just war theorists or very technical law of war specialists to care about. Then along came the Lebanon-Hizbollah conflict, and I was sorry indeed not to have written up even a straightforward, unanalytic black-letter law discussion that would have been useful, I think, given the quantities of less-than-lawyerly talk that occurred at the time. I blogged a few bits, mostly drawn from that expert declaration, here, here, here, here, and here. I have such a project on the back-burner, but am currently occupied with other things.

Others, however, are doing very interesting and important work on the subject. Amichai Cohen of Ono Academic College, Israel, has two new papers posted up on SSRN, one related to the discussion of proportionality in the recent Israeli Supreme Court opinion on targeted killings, here, and the other a discussion of proportionality in the actual facts of the Lebanon-Hizbollah war, here.

Both are well worth reading. I am still digesting the second, in particular, and have some disagreements with the analysis, but think it a very well considered piece.

On the first, re the Israeli Supreme Court opinion - well, I have a general view that Israeli Supreme Court opinions on these kinds of topics may and often do make extremely good opinions for the particular situation of the Territories. But the situation there is so specialized - such a mixture of laws of war and occupation in a long term situation of terror, war, forced co-existence, attempts to regularize things through odd combinations of municipal and international law, etc. - that I find the situation sui generis, and likewise judicial opinions with respect to it. I think the Court does an admirable job on its own terms, but I don't find those terms very relevant to the general situation of the laws of war, nor do I think the Court is much worried about that issue in any case. The case of targeted killings by Israeli Defense Forces in the situation of the long term occupation and the combined civilian-military justice system that Israel has, quite sensibly, evolved over a long period - well, it doesn't seem to me to help very much in analyzing the application of the laws of war or other law regarding targeted killings elsewhere.