Since AFAIK TNR tends to place its articles as pay-only after several days, I'll quote a bit more extensively than normally.
Joshua Brook
The war between Israel and Hezbollah has sparked widespread debate on the subject of proportionality. One might have hoped that the human rights community would take this opportunity to educate political leaders and the public on the international law of proportionality and how it applies to the current fighting. Indeed, some groups have done just that. But others have chosen to brazenly distort international law in their zeal to condemn Israel.
Most of the public discussion of proportionality focuses on two questions: first, whether the amount of force employed by Israel is proportionate to the amount of force used by Hezbollah; and, second, whether the number of Lebanese civilians killed by Israel is proportionate to the number of Israeli civilians killed by Hezbollah. These questions may or may not be legitimate ones, but they have nothing to do with the concept of proportionality as that term is used in international law. Under humanitarian law--that is, the body of international law that governs the conduct of armed conflict--proportionality has a specific meaning, the application of which is critical to determining whether a party to an armed conflict has committed war crimes.
Broadly speaking, the law of war is divided into jus ad bellum, which governs when a party may engage in armed conflict, and jus in bello (also known as humanitarian law), which governs the conduct of parties engaged in armed conflict. While there is little disagreement that Israel's use of armed force in Lebanon satisfies the requirements of jus ad bellum (Michael Walzer laid out the case last week in TNR), there has been a vigorous debate over whether the means chosen by Israel violate humanitarian law.
Given the ambiguous state of the law, there is certainly plenty of room for legitimate debate as to whether, in the current conflict, Israel has abided by its legal obligations. But what is beyond debate is that, during the last few weeks, some human rights advocates have misinterpreted the principle of proportionality--twisting the law in order to make unfounded accusations against Israel.
To understand just how shoddy some of these human rights advocates have been in their legal reasoning, it helps to start with those human rights groups that are actually treating international law seriously. Take Human Rights Watch (HRW) first. On July 17, the organization published a comprehensive document titled "Questions and Answers on Hostilities Between Israel and Hezbollah."* The Q&A accurately explains humanitarian law and fairly applies it to the current conflict. With regard to Hezbollah, HRW states that the taking of hostages is "strictly forbidden" and is a "war crime." It further states that the use of imprecise Katyusha rockets in civilian areas "violates the prohibition on indiscriminate attacks and would be a war crime." With regard to targets attacked by Israel, HRW states that civilian targets with military uses (airports, roads, bridges) may, in certain circumstances, be legally attacked, but that Israel is constrained by the principle of proportionality. With regard to whether the destruction of power stations is disproportionate, HRW reserves judgment but notes that "Israel faces a very high burden to justify these attacks." HRW has also urged Israel to cease the use of cluster munitions in populated areas, as such use "may violate the prohibition on indiscriminate attacks contained in international humanitarian law."
Similarly, the International Committee of the Red Cross (ICRC), which has a mandate from states party to the Geneva Conventions to carry out certain humanitarian activities in connection with those treaties, has issued statements urging all parties to uphold their obligations under international law. The ICRC has not accused Israel (or Hezbollah, for that matter) of committing war crimes, and has implicitly endorsed the potential legitimacy of the Israeli blockade of Lebanon, while reminding Israel of its obligation "to respect the principle of proportionality when establishing a blockade."
By contrast, Amnesty International has jettisoned international law entirely; instead, the group seems to be defining a war crime as any military action of which Amnesty International disapproves. Its website blithely condemns the Israeli targeting of bridges, roads, power stations, and the Beirut airport as "blatant violations of international law, which include war crimes." This accusation makes no reference to the principle of proportionality or, indeed, to any international legal instrument whatsoever.
The United Nations high commissioner for human rights, Louise Arbour, hasn't been much better. In a press release dated July 14, she accurately stated the law of proportionality...Yet five days later she argued that "the bombardment of sites with alleged military significance, but resulting invariably in the killing of innocent civilians, is unjustifiable"--and then went on to suggest that Israel may be guilty of war crimes. This statement badly twists humanitarian law by completely ignoring the principle of proportionality.
By proscribing certain actions while permitting others, humanitarian law seeks to tame warfare of its cruelest practices. The proportionality principle seeks the maximum protection for civilians while acknowledging the ugly reality that, in warfare, 100 percent protection is impossible. By obliterating the distinction between war and war crimes, groups like Amnesty International and the United Nations undermine the protection that humanitarian law does afford to civilians caught up in armed conflict. International law is not strengthened by distorting or ignoring its provisions while solemnly invoking its principles. Sadly, this seems to have been lost on some of the organizations and institutions charged with protecting human rights
http://www.tnr.com/doc.mhtml?i=w060724&s=brook072806">Read the whole thing
*
Link to HRW report. It should be noted that it is not neccessarily completely accurate factually; specifically, I noticed that it claimed that the Lebanese Army was uninvolved in hostilities, while (for example) the missile attack which crippled an Israeli warship required the collusion of the Army or elements in it.