Proportional Proportionality

The pre 2nd world war Appeasement policy closely resembles today’s demands of “Proportionality".

Prof. David A. Frenkel,

OpEds Prof. David Frenkel
Prof. David Frenkel
INN:DF

The term “proportionality” is one of the remarkable inventions of the modern western legal systems. It enables the Courts find the desirable way in the interpretation of private rights versus the State in Administrative Law, solve disputes among litigants and set down appropriate punishments in criminal cases. However, this term is only appropriate where all conflicting parties act under the same legal frame and the values are accepted by all of them. The same rule may also be applied to conflicts in the international sphere, provided all parties in the conflict accept the same values and follow them.

However, in international conflicts, where not all the parties act in the framework of the international conventions, the term “proportionality” becomes an one way weapon applied and used against the party who does follow them and is called to restrain and abstain from any response against the attacking party, claiming that any response may escalate the conflict because, or despite the fact that, the attacking party does not consider himself bound by “proportionalities” or any other limits or accepted rules.  

Those who are very keen to impose the “proportionality” principle are mainly those who are not involved directly or formally in the conflict.  As such, they define “proportionality” as they wish. This is, of course, as long as they are not yet affected by their definition, as then they will redefine it according to their needs. Those who call for restraint and demand imposing their view of proportionality, consider the one who should accepts and follows the international conventions and rules as the “responsible adult”, while exempting the other party from any responsibility. They “preach” only to the “responsible” party to show restraint, as otherwise, they claim, the conflict would escalate. When this party has suffered and does not want to follow the “advice” of restrain, its response is followed immediately by blaming and condemning that party, not the other side, by declaring the refusal to be slaughtered as “disproportionate”, accompanied by well- orchestrated choirs of shouts, condemnations and threats.

The main reason for the hypocritical use of “disproportionality” is cowardice. They are afraid that as a result of the reaction of the victim, they may find themselves in a position which will force them to defend their policy or even worse – to react in order to defend them. They will not be able to be satisfied anymore with fiery speeches in parliaments or showy declarations in the media.

Those who cry “where is the proportionality?” will suffer no less, and perhaps more, as a result of their no response against those countries or organisations that not only do not accept the international rules and values, but are not even called to do that. History teaches that overlooking the danger and delaying in stopping the raging parties, increases the danger and reduces the possibility to prevent or to lessen it, and then a higher price is demanded as time passes in order to put an end to war.

On 7 December 2014, the international lawyer Prof. Alan Dershowitz received the Sir Winston Churchill Award from the Israeli Technion. The ceremony took place in London. In his speech he mentioned that Goebbels, the Minister of Propaganda in Nazi Germany, expressed in his diaries his surprise that the British did not act to stop Germany when it broke the terms of the Versailles treaty. Dershowitz continued and said, “let’s imagine Churchill had been there and he had acted. Perhaps 10,000 people would have died. No world war. No Holocaust. But instead of being a national hero, considered by many to be the greatest ever Englishman, Sir Winston would have been thought a pugilistic maverick who allowed thousands to die for what? To stop tinpot dictator from bloviating?” (D. Finkelstein, “What if Churchill had been PM in the 1930?”, The Times, 13 December 2014, p. 25). The disciples of “appeasement” and the “proportionality” would come out against him, condemn him and claim his acts were disproportionate, as until that stage the Germans had not yet killed any British citizens.

Act before it is too late 

After all, what did Hitler do during those years? Germany started to rearm in contradiction of the Versailles Treaty. Later on, in 1934, Germany started to intervene in the internal politics of Austria, a preliminary step for the “Anschluss”. Then Hitler began to build an air force. In 1935 he introduced compulsory military service, a five-fold increase in the German armed forces (a major breach of the Treaty). In 1936 remilitarised the Rhineland which should have been demilitarised under the Versailles Treaty and the Locarno Treaties of 1925 (another major breach of the Treaty). In 1938 he annexed Austria to Germany, against another major breach of the Treaty, and then demanded and got the Sudetenland (Czech) in the Munich agreement. In March 1939 he annexed Memel, and in the same year, he occupied what has been left from Moravia and Bohemia, and set Slovakia as a German “puppet” state. In July 1939 he demanded that Poland give him a corridor to Danzig, not to forgetting the German policy of discrimination and implementation of racial laws.

Despite all that, the entire world and first and foremost Britain, not only did not prevent Germany and Hitler from violating the Versailles Treaty, but also surrendered and gave Hitler all that he demanded in consideration of his “promises” that if all his demands are fulfilled, and they grew up more and more, he would refrain from war. During this period Britain’s prime ministers were Stanley Baldwin who was followed by Neville Chamberlain. Churchill was removed from political activity and was kept “out of bounds”, because he demanded in the midst of the ‘30s to take strong steps to block Germany behaviour, and his approach was contrary to the Government political line.

The British Prime Minister Chamberlain was dedicated to the policy of Appeasement. Appeasement, which was accepted by British and French politicians, is a policy of making concessions, material as wells as political, to an enemy with the hope it would avoid conflicts. Prime Minister Chamberlain followed this attitude all along his term regarding his relations with Hitler when signing the Munich Agreement, and also in his policy in Eretz-Israel (then Palestine) as found expression in the 1939 White Book, in attempt to appease the Arab countries and the Arabs in the Holy Land.

Chamberlain refused to accept the possibility that his German opponent was would not keep his word and would do anything to achieve his goals. It is also possible that Chamberlain was afraid of Hitler and did not want to anger him. Even after Munich Agreement which was a submissive agreement from the British side, Chamberlain continued to have deliberations and negotiations with Hitler regarding world peace. In Munich he got Hitler to sign with him a piece of paper – a peace treaty – between Germany and the United Kingdom in which they undertook that Britain and Germany would never go into war against each other. His behaviour and “achievements” were celebrated not only in the UK but all over the world. The President of USA, Delano Roosevelt, the Prime Minister of Ireland, Eamon de Valera, the Pope Pius 11, are only a few that praised him. Only after Hitler invaded Poland on 1st September 1939, almost a year after the signature of the Munich agreement, he understood how wrong he had been and that there was no reason to his policy of “appeasement” when dealing with such a deceptive liar. He had no choice but to declare, on 3rd September, a war against Germany (in contradiction to his undertaking in the peace of paper he signed in Munich). As Dershowitz highlighted in his lecture, had the world leaders reacted firmly and immediately as soon as Hitler started to violate the international treaties, the number of victims would have been millions-fold less.


Accept reality and the need for stopping violence and brutality in their early stage, in order to prevent total wars which will cause much higher number of victims.
The Appeasement policy of those times is equal to the claim for “proportionality” today, only under another name, in dealing with countries and organisations which have no intention to follow international rules and conventions, neither in the political field nor in the warfare field. Like the Appeasement policies devotees in the past, the “proportionality” policies devotees of today limit themselves to counting the number of victims of each side caused as a result of immediate reaction in the short term to stop violence and brutality carried out by those parties for whom the term “proportionality” does not exist.

Those devotees refuse to accept reality and the need for stopping violence and brutality in their early stage, in order to prevent total wars which will cause much higher number of victims – soldiers and civilians.

This is true also as regards the Arab-Israeli conflict, whose latest expression is the Hamas. Hamas copies Hitler conduct, including his promises and his relation to the agreements he signed. These words are not less true regarding the “restraint” policy and the “proportionality” of the world against  the “Islamic Caliphate (ISIS)” and similar organisations. It is unreasonable and inhuman to wait until more people are executed, more women are tortured and raped, more children and women are sold and enslaved, more school children, like those in Pakistan, are slaughtered, and restaurants like those in Sydney are burnt down and their customers murdered. The result may be catastrophic in case the west world powers decide to wait, as though because of a “proportionality” rule, until all those terror and brutal violence actions are spread also to the streets of Britain, Canada, France and USA. It is necessary to start acting seriously against those organisations that have no human and moral break. Such action should be taken without delay, even if defined by the cowards and hypocrites as “unproportioned”.

(Translated for Arutz Sheva by the author, from the Hebrew publication Maraah-Magazine of 26th December 2014)




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