During the first Hague Peace Conference in 1899, the British delegate advocated for an exception to the use of dum-dum bullets against “indigenous peoples.” He explained that in civilized wars, a gentleman “who is hit by a small projectile withdraws to the ambulance and goes no further […] It’s very different with a savage. Even if he has been pierced two or three times, he doesn’t stop marching forward […] before anyone has time to explain to him that he is violating international law, he cuts your head off.”
This historical lesson reveals the hypocrisy that often underlies our international legal order. A recent example is a motion in the Dutch House of Representatives stating: “Considering that humanitarian law and principles such as proportionality are of great importance […] requests the government, within the EU and UN framework, to express support for Israel’s right to self-defense.” However, the motion argues that the government should somewhat look the other way when assessing Israeli war crimes because it’s a complex, asymmetric war and Hamas hides among civilians. This points to a selective application of international law, depending on who the ‘perpetrator’ and who the ‘recipient’ is of violence. Alternatively, the motion could have advised the opposite: Israel should be more strictly evaluated as it is the occupier.
When signing human rights treaties, the West often found excuses to limit their universal application. Colonial powers, for example, did not want the people in the colonies to be protected. They argued that inferior cultures had different norms and values, and it would be unjust to impose our values on them. This would be “human rights imperialism.” Other excuses resembled our Dutch parliamentary motion claiming the situation in the colonies was complex and costly.
Now, about proportionality. The concept of proportionality in the law of war is often misunderstood, even by journalists. I saw an interview where a journalist aggressively interrogated a woman in Gaza: “What is the proportional response to the massacre of 1,400 Israelis?” This suggests an accounting approach to life and death: if 1,400 debtors die, then one may also exterminate 1,400 creditors.
André Nollkaemper (Dean of the Faculty of Law at UVA) explains proportionality in his textbook as follows: “If an object is a military target, this does not offer carte blanche for an unrestricted attack on that object. Military targets may not be attacked if the attack will cause additional loss of human life among the civilian population, injury to civilians, damage to civilian objects, or a combination thereof, in a degree which would be excessive in relation to the expected concrete and direct military advantage. This principle of proportionality requires a balance between military advantages on the one hand, and damage to civilian objects and loss of civilian life on the other. A large-scale attack on a small military post, which is of little military importance, in the immediate vicinity of a school with children, runs the risk of being disproportionate.”
In other words, proportionality in the law of war requires a balance between military advantages on one hand and damage to civilians on the other. Proportionality is not an “eye for an eye, tooth for a tooth.”
So, what is the moral and rational path forward? The prosecution of war crimes by an independent tribunal. Political parties almost unanimously voted for the prosecution of Russian war crimes in a tribunal (the dissenting votes were PVV, FvD, and Van Haga). The same approach should be universal. A motion calling for all war crimes in the Israeli-Palestinian conflict to be prosecuted at the International Criminal Court would thus be the only credible step. After all, judges are less biased than politicians.
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