Ed Note: Dr. Cox, Adjunct professor at Cornell University School of Law and retired US Army officer, was responding to television personality Piers Morgan, who has many times declared Israel’s actions in Gaza as “disproportionate” and “beyond proportionality.” “Proportionality” is a key concept in war – particularly important for moral militaries, which includes the US military and the Israel Defense Forces. Skipping the direct references to Morgan, this is a master class in military law and the misunderstood – or well understood but deliberately misapplied – concept of proportionality. He mentions @SpencerGuard – a great reference. Both are great follows on X.
Hi Piers. Retired military lawyer & current int’l law prof here again with another pro tip for you. You are of course correct to note @Israel has the “right to defend itself after the Oct7 atrocity.” That’s not just your opinion, though. In case you’re curious where that right comes from, it’s reflected in Art. 51 of @UN Charter – which I’ve attached for ease of reference if you’re interested in seeing it for yourself. (Image 1)
Now that the inherent right of self-defense is taken care of, let’s talk about proportionality. In addition to @SpencerGuard’s response to you regarding proportionality in #LOAC context, a use of force defending against armed attack must be “proportionate” overall as well. Since John covered LOAC proportionality in his post and it’s not clear to which “proportionality” you’re referring here, allow me to address proportionality as it relates to overall use of force in self-defense. If you have “consistently asked what would be a ‘proportionate’ response,” it’s helpful to know how that is actually measured.
There is no authoritative consensus view on exactly what “proportionality” requires, but I’ve attached two useful examples here, again for ease of reference. One is from the International Law Association (@ILA official) Final Report on Aggression and the Use of Force published in 2018 (Image 2). Second is excerpt from @DeptofDefense Law of War Manual (Image 3).
Sticking with commentary from ILA report (which is generally more restrictive than DoD LoW Manual), measures taken in self-defense must “be balanced in light of the aims of the self-defence.” In this context, legitimate aims “are to halt any ongoing attack and prevent the continuation of further attacks.”
Do you see the problem with your concluding thought in QTd post yet? You claim, “What we see now is way [beyond] ‘proportionate.'” (btw I changed “behind” to “beyond” since I assume that’s what you meant)
Here’s the problem. You’re focused on effects of “what we see now” in Gaza. Any guesses how I know? You ALSO said on X yesterday, “Israel has killed a lot of babies in Gaza, and many 1000s of other children, as it has waged its war against Hamas. That’s not ‘Hamas propaganda’ – it’s a cold, hard, undeniable fact.”
So that’s “what we’re seeing now” in Gaza. But have you determined that what we’re seeing now exceeds what is necessary to “halt any ongoing attack and prevent the continuation of further attacks”? Because if not, your claim that “what we see now is way [beyond] ‘proportionate'” is simply misguided.
That’s the problem with your thought process on proportionality. Here’s why this is a problem in your professional capacity as a journalist.
You may recall a few days ago when I said your inability to differentiate between hostage & POW makes you a shill for terrorists. Well, so does your uninformed assessment of what “a ‘proportionate’ response” would be.
#Hamas deliberately hides & fights among (its own) civilian population. If it didn’t, how many fewer babies would have been killed in Gaza (since that seems to be your metric)? The current large-scale conflict was initiated when Hamas invaded Israel & committed one of the worst atrocities in living memory. If it didn’t, again, how many fewer babies would have been killed in Gaza? Most importantly for purposes of proportionality, Hamas still represents an enduring grave security threat to Israel. If it didn’t … surely you get the point by now.
So, if you’re genuinely concerned with “Hamas propaganda,” you may be surprised to know that you are (presumably?) inadvertently contributing to Hamas propaganda by claiming Israel’s response to 10/7 is “now way [beyond] proportionate” without explaining why you ALSO believe the enduring grave security threat posed by Hamas has now been neutralized. Because in reality, that is precisely the doctrinal standard Israel is implementing as it continues to exercise its inherent right of self-defense.
That’s a sketch of the problem with your views on proportionality. The question now is: what do you intend to do about it? For starters, read & study this post on proportionate use of force in self-defense as well as John (Spencer’s) ‘s post on LOAC proportionality. If it’s still not clear to you, or if you want to clarify for your audience, I endorse John’s suggestion of having him or any serious scholar of war on your show as a guest. In addition to the names he listed as recommendations, include me as a suggestion as well. I’ll even come to the studio if you’d like rather than appear by virtual connection.
Whatever it takes, you can find a way to stop shilling for terrorists if that’s what you sincerely want. Get it right, or you know what to do.
