International Law: LOAC: Proportionality

Defining Anticipated Military Advantage: the Importance of Certainty

By Yishai Schwartz
Friday, May 22, 2015, 10:32 AM

When scholars analyze Israeli military actions against Palestinian militant groups, the discussion inevitably turns to the principle of proportionality. Advocates and analysts sift through lists of the names of the dead, review drone footage from before missile strikes, and endlessly debate whether anticipated military advantage justified foreseeable civilian costs. Less discussed, however, is a more basic question: what sort of expected gains actually qualify as “anticipated military advantage?”

Over the last few weeks at Just Security, Michael Schmitt and Israeli legal scholars Amichai Cohen and Yuval Shany have engaged this question with gusto. A pair of papers (and summary blog post) published by Schmitt and John Merriam suggested that certain particularities of the Israeli-Palestinian conflict impact Israel’s targeting practices---and perhaps its proportionality analysis. This suggestion clearly troubled Cohen and Shany, the deans of two of Israel’s leading law schools, who insisted that broad “contextual” considerations and particular “cultural sensitivities” had no place in calculating military advantage. Schmitt responded in turn, arguing that his initial post had been misunderstood and explaining how precisely certain particularities of the Israeli context can, in fact, be considered when defining military gains.

Absent from the entire discussion, however, was any mention of the key concept that actually underlies the arguments and distinctions drawn by both sides. This concept is the degree of certainty of military advantage. Varying degrees of certainty is the only coherent way to differentiate between the deans' categories of “broad strategic” and “concrete and direct” military advantage, or to understand Schmitt’s partial acceptance of those categories. A more straightforward understanding of their arguments---and of anticipated military advantage---requires making the concept explicit.

An Incoherent Distinction?

In their initial post, Schmitt and Merriam suggest that two “key factors” inform Israeli targeting decisions: first, “the extraordinary degree to which the Israeli population views itself as 'under siege,'” and second, “the acute casualty aversion in Israeli society... [and] pervasive fear of IDF soldiers being taken prisoner and used to exert strategic leverage over Israel.” In response, Cohen and Shany quickly labeled these considerations “broad strategic” and “cultural” and argued they must be discounted from any calculation of military advantage. Doing otherwise makes calculating proportionality “less predictable,” “extremely subjective,” undermines “equal applicability,” and “risks obfuscating and skewing IHL proportionality analysis:” It simply cannot be, the deans argue, that because Israelis view themselves and their soldiers in a certain way that the relative weight given to Palestinian lives drops. Allowing Israel’s particularities (e.g. fear of hostage-taking) and its general, strategic goals (e.g. alleviating a country’s “sense of siege,” or establishing “general deterrence”) to justify a greater loss of Palestinian civilian life would lead to unjust and unworkable results.

There is, however, a central problem with Cohen’s and Shany’s argument: while they critique Schmitt’s interpretation of “anticipated military advantage” as overly broad and they give some examples of what must be excluded, but they offer no coherent limiting principle to define military advantage more narrowly.

Cohen and Shany do, of course, offer us some excellent-sounding words and examples: We are told to distinguish between “broad strategic considerations, such as the effect of rocket stockpiles on the Israeli public’s siege mentality” and “public perceptions and particular cultural sensitivities, such as the strong aversion of many Israelis to confronting prisoner exchange situations” on the one hand, from “concrete and direct military advantage” on the other (this last language is borrowed from the Additional Protocol of Geneva Convention and the ICC Statute). But what precisely differentiates the “strategic” from the “direct?” Is the benefit gained from the capture of an enemy capital or a king “broad” or “concrete?” Is the preservation of national landmarks, monuments, and religious sites, and so forth merely a matter of “cultural sensitivity” with no “concrete” military advantage?

The distinction simply does not work: Israel’s crossing of the Suez in 1973 constituted a direct military advantage in large part because of Egyptian sensitivity about an Israeli armored column advancing on the nation’s capital. Similarly, the notion that the preservation of threatened artifacts in Mecca should play no part in Saudi proportionality calculations defies common sense. And especially in an era of asymmetrical war, military advantage is not simply achieved by destroying a certain number of soldiers or taking a certain hill. It is achieved by reducing the enemy’s will to fight, by disrupting its access to funds, undercutting its legitimacy and by convincing its rank-and-file of the hopelessness and injustice of their cause and the wisdom of yours. In this context, words like “broad” “strategic” and “cultural” quickly become useless.

Perhaps most importantly, it is not at all clear why---even if the distinction were a clear one---it should matter at all. Morally speaking, whether an advantage is “concrete” or “strategic” makes no difference. Either can advance an army’s interests, hasten victory and ensure peace. If the capture of a handful of Israeli soldiers is as certain to lead to strategic defeat as lost territory, why should the prevention of one but not the other be factored into proportionality ?

Proxies for Certainty

It is that last question that reveals the latent logic that lies beneath the deans’ critique. Their distinctions were never clear and coherent because concepts like “broad” or “cultural” were never the real issue. These are simply superficial stand-ins for a deeper concept: certainty.

Surely Shany and Cohen understand that military advantage is military advantage---whether it be a strategic ability to achieve deterrence, or a narrow operational capture of a threatening redoubt. (Indeed they end their critique with a fairly significant hedge: "From Clausewitz’s time onwards, we all know that military force is often deployed to attain political goals, and not merely military goals. As a result, tactical decisions...would be inevitably affected by these broader concerns.”) Nevertheless, Cohen and Shany worry that the more abstract an anticipated military advantage is, the less certain it is, and the more easily it can be used as an excuse to ignore civilian costs.

When we think of the value of taking an enemy position, reasonable observers are likely to come to relative agreement. But when we evaluate the importance of protecting an ancient temple or the impact of a single operation on the enemy’s morale, we are in uncharted territory where self-serving evaluations become unacceptably likely. In these situations, it is all too easy (and tempting) to magnify the advantage---and to kill a great number of civilians quite quickly. So even as there is no true conceptual distinction between “broad, strategic” and the “concrete and direct,” we use the terms as useful stand-ins for distinguishing between military advantages that are more certain (and less susceptible to abuse) and those that are less certain (and more susceptible). There is no firm line here; just varying shades of gray.

Letting the Other Side Evaluate

Although he never says so directly, an implicit recognition of this same concept underlies Schmitt’s own response to Cohen and Shany’s critique. At the outset, Schmitt readily concedes that Israelis’ “sense of being under siege” or psychological “aversion” to the capture of soldiers don’t themselves add weight to the additional military advantage in the easing of the siege or the prevention of a capture. But he quickly offers two caveats. First, although particularities of Israeli national psychology can’t affect proportionality, Hamas’ exploitation of these particularities can. And second, although preventing terror among a civilian population is not generally a legitimate military objective, when that terror is the product of unlawful attack, its prevention can then be duly considered in a proportionality analysis.

This first caveat is the more intuitive: according to Schmitt, when Hamas captures an Israeli soldier, it views this  as “a victory of strategic proportions.” True, Hamas’ determination is, at least in part, likely the result of Israeli particularities---e.g. the unique national trauma and willingness to release security prisoners that accompanies a hostage-taking. Nevertheless, it is Hamasdetermination about the strategic advantage of capturing Israelis (rather than Israeli sensitivities) that transforms the prevention of such a strategic gain into a weighty military goal. In other words, because Hamas considers a failed capture operation to be a “significant operational failure,” Israel’s militarily advantage in preventing such a capture is heightened---“not just in terms of securing the safety of the soldier concerned, but also with respect to denying the enemy an important military aim.” Thus the rescue of a particular soldier does not become more significant by virtue of Israeli self-image or concern---but by virtue of Hamasdesires.

Schmitt’s second principle is, at first glance, somewhat puzzling: As a general matter, he concedes that “a broad purpose of keeping lawful attacks from frightening the population is not proper military advantage vis-à-vis the proportionality analysis.” Nevertheless because LOAC prohibits attacks targeting a civilian population, “[i]t follows that stopping such attacks is a military advantage.” This is strange. Why on earth does the fact that Hamas’ tactics are illegal transform the countering of such tactics into a “legitimate military objective?” One (the illegality of an enemy’s tactic) seems to have nothing to do with the other (the relevance of a goal to a proportionality analysis.)

The logic becomes more apparent when we realize what it shares with Schmitt’s first principle: In both cases, the evaluation of the military objective’s worth is removed from Israel’s hands and left to Hamas. In doing so, Schmitt reduces the opportunity for self-serving evaluations of significance that might allow Israel to unilaterally assign high value to any and every operation it undertakes. The negative effects of uncertainty (e.g. how much “military advantage” does preventing the national trauma and mass release of Hamas prisoners actually offer) are thus ameliorated by the fact that the resolution of that uncertainty is largely left to the enemy. It is not Israel that invents the value of preventing soldiers’ capture or reducing the national feeling of siege. Rather, it is Hamas that accords these actions military value---and Israel that, so to speak, simply takes those values into consideration. The underlying principle here is not that different from the classic mechanism for sharing a pie: instruct one party to split it into two parts and the second to select which one to take.

Schmitt’s conceptual strategy for dealing with uncertainty becomes crucial in the sorts of wars that Israel (and the US) will likely continue to fight. In traditional warfare, where the seizure of territory and the destruction of enemy forces were paramount, using phrases like “direct and concrete” and “tactical advantage” as proxies for certainty made good sense. But in an era where deterrence, international support and democratic will are key components of a conflict, we need to figure out ways for less direct, less certain forms of military advantage to figure into our proportionality calculations. But doing so raises the critical challenge ensuring that uncertainty doesn’t lead to untethered, self-serving evaluations of anticipated advantage. Allowing the other side to set those standards may be one useful, creative way forward.