Australian expert sets the record straight on “proportionality” in conflict

Australian expert sets the record straight on “proportionality” in conflict
DFAT chief legal officer James Larsen at Senate Estimates


These critics would have us believe that in military conflict, international law requires that the death toll be similar on both sides; that in responding to aggression, armies are only allowed to shoot back after they have been shot at.

This is simplistic and incorrect – as numerous commentators have pointed out, see for instance here, here and here. What customary international law says regarding proportionality, as explained by the Oxford Institute for Ethics, Law and Armed conflict, is: “An injury to civilians or damage done to civilian objects as a side-effect of a military operation may be permissible provided that it is proportionate to the military gain anticipated from the operation.”

Those in Australia who still do not seem to understand this point and misuse the legal concept of proportionality would do well to listen to James Larsen, chief legal officer at the Department of Foreign Affairs and Trade (DFAT), and previously an Australian ambassador in Israel and subsequently in Turkey.

During Senate Estimates hearings on Thursday, retiring Greens Senator Lee Rhiannon raised the recent border clashes on the Israel-Gaza border with DFAT officials.

She claimed the protests had been “peaceful action” taken by “unarmed civilians” on the border. She accused Israel of war crimes and then backed that up with the common motif of her ilk – that Israel’s actions were disproportionate.

Much to Senator Rhiannon’s frustration, Larsen responded by consistently maintaining that he could not accurately assess the legality of Israeli actions based on Senator Rhiannon’s description of events.

The Senator asked the legal officer: “Do you know of any legal code that would not count the shooting of unarmed civilians walking to a fence, walking towards a fence, when they’re many metres, many hundreds of metres away from the person with a gun, as a war crime?”

Larsen responded “Senator I can’t engage in a hypothetical.”

Then Senator Rhiannon wanted Larsen’s view on the use of tear gas during the border clashes.

Larsen responded: “Well Senator, we recognise the right of Israel to defend itself. To take reasonable and proportionate action in response to threats. I can’t comment on the particular hypothetical you have put to me, but ultimately, any legal analysis or measuring of conduct against a code or legal standard will depend on the particular circumstances.”

This clearly disappointed Senator Rhiannon who then pulled out her trump card: that Israel’s response must have been illegally disproportionate because casualty numbers were not the same on both sides.

She asked: “Considering that we had snipers on one side and on the other side there are protesters – and yes there were reports of Molotov cocktails and there were reports of kites flying over, but there were also tens of thousands of people who were engaged in peaceful action – when you use the word proportionate what do you actually mean by that considering there were snipers on one side who killed over 100 people?”

Larsen replied: “Senator, it absolutely depends on the particular circumstances. It depends on the perception of each side as to the conduct of the other, it depends on the facts on the ground. It is quite possible that action can be lawful even where you have civilian casualties.”

Senator Rhiannon again asked how an action could possibly be proportionate when there were casualties on one side, but not the other.

In the clearest terms, Larsen crushed the claim that you can make a judgement about proportionality based solely on casualty numbers: “In my opinion Senator, the question of proportionality doesn’t give rise to a debate about the number of deaths on one side or the other. That’s not relevant to proportionality.”

It is this point that seems incomprehensible to so many people, including Senator Rhiannon, so let’s repeat it one more time.

“The question of proportionality doesn’t give rise to a debate about the number of deaths on one side or the other. That’s not relevant to proportionality.”

And that’s not coming from the Israeli Government or an Israeli commentator, it’s coming from DFAT’s top legal officer.

It is time for Australians commentators and politicians to stop arguing that Israeli actions are illegally “disproportionate” based solely on casualty figures. It is plain to see that any such claim amounts to either legal illiteracy or deliberate misrepresentation.

Naomi Levin