“Proportionate”
cactus, a contributor to the economics blog Angry Bear, objects to the use of the word ‘proportionate’ in discussions of the recent bombings in Gaza (11:18am 1 Jan 2009):
First, because very few people would advocate “proportionate responses” in non-military situations. Consider, for instance, Bernie Madoff. As I understand it, the man is in house arrest and many people wonder why he isn’t already in jail. However, putting Madoff in jail would not be proportionate — there is no indication that he imprisoned or otherwise directly interfered with anyone’s freedom of movement.
The reason it is important to imprison someone like Madoff, if he is indeed guilty of the offenses alleged (and admitted) is to prevent these offenses (and worse) from being committed again. Proportionate responses do not have a deterrent effect. We (through the state) could collectively seize all of Madoff’s assets, but that wouldn’t even deter Madoff from trying again, much less anyone else.
On the other hand, if police officers were allowed and encouraged to routinely shoot one out of every two people caught driving faster than the posted speed limit, and the odds of getting caught any time you were speeding rose to one in two, the average speed on the freeways would drop quite a bit. (Note — the issue of what level of response is needed to achieve a deterring effect is a different question than whether that level of response is worth applying to achieve that effect.)
Second, there is the issue of intent. Osama bin Laden and Al Qaeda clearly would like to kill us (i.e., and here, “us” amounts to “the West”) all. Every one of us. The fact that they only succeeded in killing a small fraction of us doesn’t mean that in combating Al Qaeda, the West only has the right to go after a small fraction of them. Incompetence is not a defense… and incompetents can succeed at their goals if given enough bites at the apple.
Third, a proportionate response often doesn’t exist. If Osama manages to get his hands on a bomb and next time around nukes New York, what is a proportionate response? His entire organization doesn’t have as many people in it as would have been killed in such an attack. Of course, if you include his fellow travelers, supporters (financial, material, and otherwise), and plain old well-wishers, you could easily end up with far more than enough people for a “proportionate response.” But is it proportionate to go after say, citizens of countries that are purportedly allies of ours who happily send money to Osama knowing full well that if he could, he’d nuke New York. Is it proportional to go after people who only provided money or material support without knowing precisely that it would be used to nuke New York? Perhaps not, but not doing so guarantees what you’re trying to avoid would happen again.
Considered as argument, cactus’s three points fall a good ways short of conclusive.
First point
The imprisonment of a con artist is indeed not “proportionate” to the losses incurred by his victims. But that is because is no common measure between years in prison and dollars lost (I think cactus agrees: imprisonment can be proportionate only to imprisonment). On the other hand, a person convicted of fraud is often required to make good the losses of his victims, if he can; that penalty is proportional to those losses.
The first point, therefore, shows that some penalties meted out as punishments are not proportional to the losses incurred by the victims, but only because they are not commensurate with those losses. That does not tell against proportionality in cases where it could be applied.
Proportionality fits best with theories according to which punishment consists in restitution to the victim of what was lost to them in the crime, or in depriving the perpetrator of goods commensurable to those lost by the victim (retribution). Whether the penalty should be proportional (when that makes sense) to the losses incurred by the victims when the penalty is intended to deter the person penalized (or others like him) from committing the same crime again is unclear. There’s no reason why it should even be commensurable; the intention is to change behavior, not make good a loss. This is one reason why retribution and deterrence don’t sit easily together as aims of punishment.
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Second point
The argument is that if members of X intend to kill all members of a group, then proportionality (in the form: “if n% of the group are killed by X, then it is just to kill n% of the members of X”, which is a silly principle on the face of it) is irrelevant. I have never seen anyone argue that because Al Qaeda managed to kill only .001% of the US population, only .001% of Al Qaeda ought to be killed.
The argument from proportionality, as applied to the retaliatory bombing of entire populations on the basis of the actions of a few members of those populations, is that the penalty inflicted upon most of those killed is not “proportionate” to their state of culpability, given that few of those who are killed committed the crimes, or supposed crimes, for which they are being “punished” (without, it should be noted, any of the legal protections normally granted to criminal defendants).
The point about intent, though relevant to the case of Al Qaeda (where by assumption all members of the group are culpable for all crimes committed by any of its members acting as members of the group), is not relevant to retaliatory bombing (unless you are supposing that all members of the population being bombed are responsible for the acts of any member).
cactus notes correctly that the penalty warranted by the aim of deterrence and that warranted by the aim of retribution may well differ. The real issue is not so much proportionality as whether the bombing, considered as punishment, is retributive or deterrent.2 The rhetoric of the bombers suggests that it is intended to deter; in that case proportionality is irrelevant; supposing that Hamas will not cease to shoot rockets at Israel until it is destroyed, the aim of deterrence may be served, in the end, only by depopulating Gaza, a response grossly disproportionate if the aim were retribution.
Third point
It’s a fallacy to argue that if in some cases a proportionate response doesn’t exist, then in all cases proportionality is irrelevant. Let’s grant that there is no proportionate response to, let us say, a nuclear attack on Mecca by American crazies. That matters only if the case under consideration is relevantly similar. I don’t think it is. Nor is it relevantly similar to the nuking of New York, except maybe on the Peretz principle.
Consider the recent “shoeing” of Mr. Bush. The perpetrator, Muntadar Zaidi, has been beaten while in jail; according to his brother, he has, among other injuries a broken arm and ribs.1 Although Laura Bush called the incident an “assault”, there is general agreement that Zaidi did not intend to harm the President but rather to express contempt for him. The harm undergone by the President would consist at most in humiliation (which the President seems not to feel), and the “punishment” so far meted out to Mr. Zaidi is not, I think we’ll agree, proportionate to that harm. In any case proportionality does play a role in estimating the justice of his punishment.
Is this case relevantly similar to that launching missiles at Sderot? I don’t think so. But we haven’t been given any rule, method, or hint on how to judge similarity.
“…not doing so guarantees what you’re trying to avoid would happen again” — False. For example: one might have argued after 1945 that the crime of using atomic bombs in war ought to be punished, on the grounds that not doing so would guarantee that the US would do the same again. The US was in fact not punished, and yet it has never (yet) used atomic weapons in war. The claim that not punishing a crime “guarantees” its recurrence is scary rhetoric posing as argument.
Finis
On the whole, I think that objecting to the bombing of Gaza because it is “disproportionate” to the harm caused by Hamas’s missiles in Israel misses the point. Either what is going on between Israel and the government of the Gaza strip is war or it isn’t.
If it is war, then Israel’s response is a military response, not a criminal punishment, and should be judged by the standards applicable to military action—just war theory, more or less.
If it isn’t war—if it is some sort of criminal punishment—then it involves far worse injustices than mere lack of proportion.
2One can muddy the issue of justification by playing up one or the other aspect in turn: retributive while pointing to the victims of Hamas’s attacks; deterrent when trying to explain why the murder of a much larger number of Palestinians is a justified response.
Update: Muntadhar al-Zeidi was given a birthday party in prison, and his brother was allowed to visit him on 16 January. His wounds have healed. He now knows of the demonstrations on his behalf in Iraq and the US: “Some officers told him that half of the Iraqis were against him. But he was very happy when he heard that all the Iraqis support him. He even cried when he heard that there were demonstrations on his behalf even in the United States”, said his brother Dhargham al-Zeidi. (Kim Gamel, Iraqi guards said to throw party for shoe-thrower, Associated Press, 16 Jan 2009.)
