Is “proportionality in war” OK?

A landmark document created at the request of NATO has proposed a set of rules for how international cyberwarfare should be conducted. Written by 20 experts in conjunction with the International Committee of the Red Cross and the US Cyber Command, the Tallinn Manual on the International Law Applicable to Cyber Warfare analyzes the rules of conventional war and applies them to state-sponsored cyber-attacks. I asked a friend of mine, who is a humanitarian law specialist, about this Manual. I received the following comment: “I do believe that International Humanitarian Law provides pretty sufficient laws and principles related to cyber-war: in all wars principles of distinction and proportionality are the key.” The term “proportionality” struck a chord with me – but it took me a bit to understand why it seemed odd. Remembering by association my training as an economist, I realized that “proportionality” and the economic term “efficiency” are close relatives. Of course, in “proportionality” one tries to avoid “wasting” lives. “Efficiency” is about avoiding waste of (other) resources. The spirit, however, is the same. This photo brings it all together:

1968: bombing the DMZ in Vietnam

Did the US have to bomb so indiscriminately (distinction) in order to kill the Vietcong (proportionality)? Could the US have achieved the same objective with better precision bombing (efficiency)? Would drones have made it “satisfactory”? Exploring the language further, the term “collateral damage” is a first cousin of the economic concept of “externality”. The economic thinking is pervasive – if not persuasive. Just as we have “efficiency” experts – the managers of a firm – we have now “proportionality” experts – it is said that bombing targets during the Kosovo intervention were vetted by a team comprising 250 lawyers. What has happened? We certainly disagree about ends – about whether there are “just” as opposed to “unjust” wars[1], or whether all wars are unjust. We can all agree, however, that if we wage war, we should do so in a spirit of “proportionality” (and economy). If we can’t get to an ideal, we settle for “second best” (another economic term – except that the theory of second best rejects approximation). Over time, a subtle switch has taken place: the if has transmogrified into provided: war is OK, provided proportionality is applied. Economic thinking again is in the lead. After all, society does not worry whether a “market” is good or bad, or “fair” – it worries that it be “efficient”. The same reasoning now applies to war. The quest for peace has been replaced by the quest for proportionality. The Western ideology of progress is the accomplice. We just promise “to do better next time”, in fact we know we will be better – but also that there will be the next war. Psychologically, we have here a nice instance of substitution. KAHNEMAN[2] describes it this way:

• The target question is the assessment you intend to produce.
• The heuristic question is the simpler question that you answer instead.

“Bait and switch” would be a less glorified formulation. Yes, deep down I worry that concentrating on “proportionality” as “second best” After all, if I have set my mind to climbing the Everest, climbing atop a nearby hillock is a poor substitute. I have a second concern, which is not moral, but analytical. War has become commodified – in fact we only speak of “armed conflict” (so my friend) which sweeps the immense variety of the war experience under an abstract conceptual rug of a generic term. War has become a-historical and de-contextualized. We should be going in the opposite direction. In order to deal with war, I’d argue, we need to confront each instance in its gory uniqueness. For, it is within its specifics and diversities, feedbacks and path-dependent outcomes that we may find the way forward. “Forward” is the operative word. Retributive justice looks backward – hopelessly looking for unattainable “truth” or the prime agent. Restorative justice looks forward to closure. It only asks: “what does it take to get peace”? In old Latin “peace” and “pay” have the same etymological root. So peace may be about economics after all…

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