Tackling the myth of Israel’s ‘disproportionate response’

EVERY war is tragic. Every civilian death is a world lost. We sanctify and protect human life. Israel does not seek conflict with its neighbours. And before this recent attack Israel did everything in its power to de-escalate tensions. However, Israel has a right and responsibility to defend its people, and when Hamas fires over 4000 rockets into civilian populations, the State of Israel must protect itself and its citizens. Israel embarked on an operation that it did not want but was prepared for, and ultimately succeeded in severely damaging the power and capabilities of the terrorist organisation that rules Gaza.

Some have claimed that Israel did not act proportionately in response to this barrage of indiscriminate rocket firings. This points to a common misunderstanding of the concept of “proportionality” as it applies to the laws and norms of armed conflict. That is, the argument that proportional use of force is a numbers game, where one only needs to compare the number of casualties on each side of the conflict in order to deduce which side used force disproportionately. This notion is flawed and illogical. Had this been true, many NATO operations, not to mention the Allied forces in WWII against Nazi Germany, would have been guilty of being disproportionate and unlawful.

The universally accepted principle of proportionality is defined as the obligation to refrain from “any attack which may be expected to cause incidental loss or injuries to civilians, or damage to civilian objects, which would be excessive in relation to the concrete and direct military advantage anticipated”.

Proportionality does not address collective casualties, but refers to specific attacks. It does not address only civilian casualties and damage, but also the intended military outcome. And it is not examined in hindsight, it is examined before the attack takes place.

The proportionality principle essentially means that before every military strike, military commanders must assess relevant factors.

Firstly, they must examine the concrete and direct military advantage anticipated from an operation. To register a significant advantage the target must be a military one, such as a weapons depot, a command and control centre or the adversary’s armed forces. Importantly, a seemingly civilian facility used by the adversary for military purposes (for example, a residential building or a religious centre used to store weapons) may be considered a lawful target.

Secondly, the commanders must assess, based on reasonably available information at the time of the attack, what the expected incidental loss of civilian life or property (collateral damage) would be.

Lastly, the military commander must implement all feasible precautions to minimise harm to civilians and civilian property.

The commander must balance all these factors and decide whether or not to carry out the attack.

Turning from theory to practice, how is the principle of proportionality affected when instead of protecting its civilians, Hamas intentionally conducts its military activity from within densely populated areas? How is Israel expected to protect its major cities from Hamas rockets, when these rockets are developed, built and launched from within the Gazan civilian population? What does international law require Israel, a law-abiding state, to do, when facing Hamas’ unlawful tactics that endanger the people of Gaza and Israeli civilians?

The Law of Armed Conflict clearly states that when a civilian presence is used to shield military objectives from attacks, that presence does not grant the target immunity. So when Hamas commits the double war crime of attacking Israeli children, schools and airports from within its own civilian population, any objective analysis of the situation would be distorted if Hamas’s criminal behaviour is not taken into account.

Despite Hamas’s blatant disregard for the law or its citizens’ wellbeing, Israel takes every feasible precaution to prevent or at least minimise harm to the Palestinian civilian population, often at the cost of operational advantage. In doing so, Israel employs precautions that exceed the requirements of international law and surpasses practices commonly employed by advanced militaries of western states. Fighting a reckless enemy that deliberately abuses the Law of Armed Conflict in the most cynical way raises grave challenges for Israeli soldiers. Nevertheless, Israeli commanders strictly apply international law and maintain the utmost moral high ground in every military action.

Hamas will continue to use its own population as human shields so long as it continues to benefit from a narrative that misrepresents and reduces the concept of proportionality to a crude calculation – and so long as they benefit from knee-jerk reactions that blame Israel for the war crimes perpetrated by Hamas, ignoring the question of who put Gazan civilians in danger in the first place.

Israel conducted a moral and just operation against Hamas’ indiscriminate aggression. Any Israeli government would have acted in the same manner of self-defence. By the same token, any future Israeli government will continue to strive for a long and sustainable peace and quiet with Gaza.

This commitment to peace means Israel will offer, as it always does, humanitarian and any other assistance needed in the reconstruction effort in Gaza, so long as Hamas is prevented from rearming and rebuilding its terrorist capabilities.

Jonathan Peled is Israel’s interim ambassador to Australia.