Editor's Note (May 14, 2021): With Hamas launching almost 2,000 rockets from Gaza in the past week and Israel conducting retaliatory airstrikes, our 2014 analysis of proportionality remains relevant.
As the Israeli ground incursion into Gaza continues, increased attention will be focused on the notion of “proportionality” in both the number of casualties on both sides and the sophistication of the weapons each side brings to bear. Britain’s Deputy Prime Minister Nick Clegg characterized Israel’s operations against Hamas in language that came close to an accusation of war crimes. “I really do think now the Israeli response appears to be deliberately disproportionate. It is amounting now to a disproportionate form of collective punishment.” Even President Obama, who has been a firm advocate of Israel’s self-defense in this instance, told reporters that he “encouraged” Prime Minister Netanyahu to “minimize civilian deaths.”
An Israeli journalist called Israel’s Iron Dome missile defense system “unsportsmanlike.” He wondered what FIFA would say “if Germany, with its superior economy and industry, were to replace Manuel Neuer with a bionic goalkeeper… capable of calculating where each Argentine ball will come from, the exact position to stand in and amount of force needed to block it… On the modern battlefield (Israel) is a bionic Germany.”
Even among Israel’s friends – and some Israelis – a “yes, but…” response is common. “Yes” Hamas started it; “Yes” Hamas puts military infrastructure in civilian neighborhoods; “Yes” Israel is entitled to self-defense, “Yes” the Israelis warn Palestinians. “But” more than 240 Palestinians have been killed to date and only one Israeli has died directly from rocket fire.
Isn’t that the definition of “disproportionate?” No. It isn’t.
Proportionality in international law is not about equality of death or civilian suffering, or even about firepower returned being equal in sophistication or lethality to firepower received. Proportionality weighs the military necessity of an action against the suffering that the action might cause to enemy civilians in the vicinity. A review of expert opinion – none of which was written in relation to Israel – helps to clarify. [All emphases below added.]
Prof. Horst Fischer, Academic Director of the Institute for International Law of Peace and Armed Conflict at the Ruhr-Universität Bochum in Germany, and Adjunct Professor at Columbia University, wrote in The Crimes of War Project:
The principle of proportionality is embedded in almost every national legal system and underlies the international legal order. Its function in domestic law is to relate means to ends… In the conduct of war, when a party commits a lawful attack against a military objective, the principle of proportionality also comes into play whenever there is collateral damage, that is, civilian casualties or damage to a non-military objective… attacks are prohibited if they cause incidental loss of civilian life, injury to civilians, or damage to civilian objects that is excessive in relation to the anticipated concrete and direct military advantage of the attack. This creates a permanent obligation for military commanders to consider the results of the attack compared to the advantage anticipated.
Exactly as Israel does when it aborts missions after finding civilians used as human shields on rooftops.
According to the doctrine, a state is legally allowed to unilaterally defend itself and right a wrong provided the response is proportional to the injury suffered. The response must also be immediate and necessary, refrain from targeting civilians, and require only enough force to reinstate the status quo ante.
What constitutes status quo ante for Israel may be debatable – but surely a return to the period before 75% of Israel’s citizens were terrorized by random rocket fire should be an acceptable definition.
Luis Moreno-Ocampo, Chief Prosecutor at the International Criminal Court, investigated allegations of war crimes during 2003 invasion of Iraq, and in 2006 published an open letter containing his findings. Included was this section on proportionality:
Under international humanitarian law and the Rome Statute, the death of civilians during an armed conflict, no matter how grave and regrettable, does not in itself constitute a war crime. International humanitarian law and the Rome Statute permit belligerents to carry out proportionate attacks against military objectives, even when it is known that some civilian deaths or injuries will occur.
A crime occurs if there is an intentional attack directed against civilians (principle of distinction) or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality).
Finally, Dr. Françoise Hampton, University of Essex (UK) wrote about the concept of “military necessity.”
Military necessity is a legal concept used in international humanitarian law (IHL) as part of the legal justification for attacks on legitimate military targets that may have adverse, even terrible, consequences for civilians and civilian objects. It means that military forces in planning military actions are permitted to take into account the practical requirements of a military situation at any given moment and the imperatives of winning.
What constitutes a military objective will change during the course of a conflict. As some military objectives are destroyed, the enemy will use other installations for the same purpose, thereby making them military objectives and their attack justifiable under military necessity. There is a similarly variable effect on the determination of proportionality. The greater the military advantage anticipated, the larger the amount of collateral damage – often civilian casualties – which will be “justified” or “necessary.”
Civilian casualties are much to be mourned, but what becomes clear – absent the propaganda element or a shaky notion of sportsmanship – is that Israel has the right and indeed the obligation to defend its people, has the right to “win” the war of self-defense that it is fighting, and has taken account of the requirements of international law regarding “proportionality” and “military necessity.” This, coupled with the willingness of Israel to accept the Egyptian-sponsored ceasefire, acceptance of a UN-sponsored humanitarian truce, and the continued provision of food, medicine, and electricity to the residents of Gaza, should help erase the “buts” of fair-minded people.