Disproportionate Responses to Homicide Bombing of Innocents

[lweinberg]

Francisco Forrest Martin writes that for a country under terrorist attacks
to publish a warning list of villages to be destroyed in the event of a
repeated murder of innocent civilians:

"would be a war crime because it violates the Proportionality Rule under
the law of armed conflict."

But it cannot be true that "publication of a list" would be a war crime
because out of proportion with "murder of innocents."  If there is any
disproportion, surely it lies in the other direction.  Publication,
warning, or even threat is very mild as weighed against murder.  Even if
Francisco is talking about the actual destruction of a village, surely
warned retaliatory destruction of property cannot be disproportionate to
murder.  Indeed, territory and the property within it, when used to launch
attacks against a country, have always been recognized under international
law as the legitimate object of retaliation by that country, a fortiori
when the victims of the attacks are innocent civilians.
Louise

At 03:19 PM 11/24/02, you wrote:
>Prof. Weinberg wrote in relevant part: "I agree with you, of course, that
>advocacy is protected by the First Amendment.  Moreover, although the
>conduct advocated might constitute war crimes when engaged in by an
>aggressor, I am not clear that any or all of it would necessarily
>constitute war crimes when used to deter, or in defense against, actual
>crimes of terror and murder.  "
>
>It is not relevant as a matter of the law of armed conflict whether
>someone is or is not an aggressor for them to be liable for the commission
>of war crimes.  The crime of aggression is different from war crimes under
>international law.
>
>Prof. Weinberg continues: "Moreover, some of Dershowitz's suggestions
>would fall far short of any reasonable definition of a war crime."
>
>What Prof. Dershowitz is suggesting would clearly constitute a war
>crime.  GC4, art. 33.  However, it is unclear whether his direct and
>public incitement of such would constitute a war crime. However, Prof.
>Dershowitz probably would be liable for "direct and public incitement"
>(see Prosecutor v. Ruggiu (ICTR)) of the commission of crimes against
>humanity by the forceable transfer of civilian population and torture (ICC
>Statute, arts.7(d) and (f)).
>
>Prof. Weinberg continues: "The government of Israel could publish a list
>of Palestinian villages slated for destruction should there be a future
>act of Palestinian terror against the lives of the innocent, for
>example.  Although such a list might constitute a true threat, it might
>also constitute a humane warning to the innocent; and in either case seems
>to fall short of conduct that might constitute a war crime."
>
>This would be a war crime because it violates the Proportionality Rule
>under the law of armed conflict.
>
>Francisco Forrest Martin
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