The UN and proportionality: In war, shoot first and ask no questions – JURIST – Commentary

The author, a medical ethicist and practicing physician, argues that the UN’s criticism of Israel’s recent hostage rescue operation, which is considered a potential war crime, reveals a fundamental misunderstanding of proportionality in war and the difference between police actions and warfare.

Following the recent Israeli hostage rescue, UN spokesman Jeremy Laurence said the actions of Israeli forces “raised serious questions about whether the principles of distinction, proportionality and caution were observed” and could amount to war crimes. Generally speaking, this lack of proportionality can constitute a war crime when one party to a conflict uses more force and other methods than are reasonably necessary to defeat its opponent. Each warring party must ask itself whether the value of a particular objective justifies the potential collateral damage. To understand the UN’s concerns, it is important to understand how the law views proportionality.

In international humanitarian law, proportionality is the principle that the use of force must be proportionate to the threat or grievance that provokes the use of that force. In war, the currency of exchange is punishment, and the exchange rate fluctuates widely, as it does in other foreign exchange markets. Unlike in a foreign exchange market, where the commodity is, say, dollars for euros, in war the commodity of exchange may be a living body for a dead body, or it may be compensation for damages that are far more intangible and less quantifiable. These so-called intangible damages are the pain and suffering that continue even after the shooting has stopped.

War, of course, involves acts that would be criminal in non-war conditions. War is the destruction of society, and after the fact we use the law to rebuild it. In the current war between Israel and Gaza, Israel has often been criticized for responding beyond the collective insults against Israel on October 7. The Jewish tradition about the value of the body is an example in this discourse. Judaism considers the body to be the image of God, and after death, tradition demands that the body must be protected and buried intact as soon as possible.

The task of protecting the body falls to the Chevra Kadisha – a sacred society – whose sole function is to ensure dignified treatment of the deceased according to Jewish law, custom and tradition. Men prepare the bodies of men. Women prepare those of women. If a person has a body part amputated during life, that body part can be preserved for burial with the rest of the body after death. It was a special branch of the Chevra Kadisha, known as the ZAKA, that used forceps to collect tiny fragments of tissue from Jewish individuals who had been torn to pieces by terrorist attacks.

In Jewish tradition, the dismemberment of bodies is a particularly serious outrage. Immediately after the Columbia space shuttle disaster on February 1, 2003, NASA bioethicist and expert on Jewish customs Dr. Paul Wolpe received a desperate call. He was asked how many of the dismembered body parts of Israeli Columbia astronaut Ilan Ramon would need to be collected to meet Jewish religious burial requirements. Members of ZAKA joined in the difficult task of recovering the body parts. In 2008, at the Lebanese border, Israel agreed to exchange five living prisoners and 199 corpses for the decomposed bodies of two Israeli soldiers after their identities were confirmed by a last-minute check of dental records that matched parts of the human jaw.

Since the founding of modern Israel in 1948, it has participated in many of these Arab-Israeli prisoner exchanges. According to a conservative estimate of all exchanges from 1958 to 2011, Israel has exchanged 24,500 living and 500 dead for 370 living and 81 dead. In a very dramatic and controversial example, on October 18, 2011, Israel exchanged 1,027 Israeli security prisoners for an Israeli soldier, Gilad Shalit, who had been held by Hamas in Gaza for five years. Of the 1,027 prisoners released, 280 were serving life sentences for planning and carrying out various terrorist attacks, including murder, against Israeli citizens and targets. From an outsider’s perspective, it is difficult to understand these exchanges of living and dead.

Hamas has shown that it is willing, even eager, to sacrifice many Palestinian lives for a relatively small number of Israeli lives. In every exchange since 1958, Israel has received fewer people, both living and dead, than it delivered. The recent hostage rescue, in which four Israelis were freed, also shows how hard Israel is willing to fight for the liberation and repatriation of its captured citizens. If one calculates the cost of loss of life as collateral damage, it is Hamas that controls the exchange rate by surrounding hostages with civilians in a war zone.

The UN would be wrong to assume that proportionality means some kind of one-for-one exchange. The October 7 Hamas raid was a criminal act under international law. In freeing the hostages, Israel’s actions were not simply a discrete chapter in a war between soldiers in uniform lined up on opposing sides. The recent hostage rescue was a police action in response to a gruesome crime that actually involved Israeli police officers. When a person is convicted of a crime, victims’ testimony is obtained and used by judges in determining the sentence of the convicted defendant.

By raising the issue of war crimes against Israel in this hostage rescue, the UN has shown that it does not understand the difference between war and hostage rescue. It is certainly coldly ignoring the impact on the victims, the hostages, their families, and all reasonable people. The speed of the UN’s declaration against Israel and the lack of understanding of the justification for the hostage rescue means that the UN once again risks becoming irrelevant as a conflict mediator. The due process clauses of the US Constitution require judges to recuse themselves if there is a possibility that their decision will be biased. For the UN to judge, it must behave much better or resign.

Joel Zivot is a practicing anesthesiologist and critical care physician and senior fellow in ethics at Emory University in Atlanta, Georgia. Zivot, who also holds a master’s degree in law, is a recognized expert who opposes the use of lethal injection in the death penalty and opposes the use of medical instruments as an instrument of state power. Follow him on “X”/Twitter @joel_zivot