What is proportionality in international law when it comes to Israel? - opinion

“You keep using that word. I do not think it means what you think it means.”

 SMOKE RISES during an Israeli airstrike in Rafah, Gaza Strip, on Sunday. (photo credit: ABED RAHIM KHATIB/FLASH90)
SMOKE RISES during an Israeli airstrike in Rafah, Gaza Strip, on Sunday.
(photo credit: ABED RAHIM KHATIB/FLASH90)

In the film, The Princess Bride, Sicilian bad guy Vizzini repeatedly exclaims that the progress of Westley to locate Princess Buttercup is “Inconceivable!” After shouting “Inconceivable!” one too many times, his hired muscle, Inigo Montoya, critically declares: “You keep using that word. I do not think it means what you think it means.”

In the world of anti-Israel propaganda and the seemingly never-ending cycles of violence with the terrorists in Gaza, the multitude of haters and wantonly ignorant often bandy around the words “disproportionate” and “proportionality” as a means to castigate the Jewish State. Israel’s response is disproportionate, they repeatedly claim. To give added credence to their claims, the detractors often add that Israel’s disproportionate response is a breach of international law and a war crime.

Claims made against Israel

While we have all heard these claims repeatedly made, here are a few generic examples:

The terrorists only have simple (some add homemade) rockets, while Israel has precision-guided missiles. So, when Israel uses advanced weaponry, Israel’s response is clearly disproportionate.

 Palestinians at the rubble of a destroyed building following the three days of fighting between Israel and militants in the Gaza Strip ''Operation Breaking Dawn'', in Gaza City, on August 9, 2022. (credit: ATTIA MUHAMMED/FLASH90) Palestinians at the rubble of a destroyed building following the three days of fighting between Israel and militants in the Gaza Strip ''Operation Breaking Dawn'', in Gaza City, on August 9, 2022. (credit: ATTIA MUHAMMED/FLASH90)

While X-number of people were killed in Gaza, many fewer were killed in Israel. Accordingly, Israel’s response, based simply on the death toll, must have been disproportionate and was clearly a war crime.

While the terrorists’ primitive rockets fell predominantly in open areas, Israel attacked urban areas. This behavior breaches the principle of proportionality and is clearly a war crime.

The incessant use of the term proportionate is meant to reference one of the foremost principles of International Humanitarian Law (IHL), colloquially known as the Laws of War. The expectation is that most people will know no better and when presented with a simple equation in which the actions of one side – Israel – constantly outweigh the actions of the other side – the terrorists (often referred to as the Palestinian militants), they will readily conclude that Israel’s actions were disproportionate.

Despite the concerted efforts, the truth must be told. Similar to Vizzini’s use of the word “inconceivable,” while the flocks of haters often shout “disproportionate,” to accuse Israel of wrongdoing, the term proportionality in IHL has a completely different meaning.

Primary military principles 

IN IHL, there are four basic principles that are meant to guide the actions of the parties on the battlefield: distinction, military necessity, unnecessary suffering and proportionality.

The principle of distinction is the foremost IHL protection for non-combatants. The principle requires that the object/person being attacked is part of the military apparatus of the enemy and is accordingly a military objective. For our purposes, the term military objective includes all Gazan terrorists, from the lowest of foot-soldiers to the heads of the organization and their entire terror infrastructure. Termed “distinction,” this principle requires that all attacks be focused on military targets as opposed to purely civilian targets that provide no contribution to the war effort.

As opposed to distinction, the principle of military necessity protects the warring combatants. The principle dictates that while IHL permits attacking combatants, those attacks must be necessary to forward the goals of achieving the military objective. Accordingly, the warring sides are required to avoid wounding or permanently injuring combatants, except as part of the fight.

The principle of unnecessary suffering also protects the combatants and prohibits the warring sides from using weaponry that cause superfluous injury or unnecessary suffering.

Finally, this brings us to the principle of Proportionality. Similar to distinction, proportionality is also designed to protect non-combatants, but it has nothing to do with any artificial attempt to balance capabilities, casualties or material losses.

In IHL, proportionality refers to a situation in which a military target is attacked and that attack causes incidental or collateral damage. Attacks of this nature are perfectly legitimate, so long as the loss of life and damage to property incidental to the attacks are not excessive in relation to the concrete and direct military advantage expected to be gained. As the value of the military target grows, so too does the extent of permitted incidental damage.

In other words, IHL accepts the fact that in war, civilian lives may be lost and civilian property might be damaged. Neither of these outcomes is necessarily prohibited, so long as the object being attacked is a military target of sufficient value.

While the principle of proportionality has no mathematical equation, it is possible to imagine some more clear-cut examples:

A house holds a handgun to be used by the combatants. The weaponry of the other side is clearly a legitimate military target. The house itself has three floors, each 5,000 square feet, and in the house, there are five children. In the attack, the house would be destroyed and the children killed.

In this scenario, the principle of proportionality would prohibit the described attack since the intended military objective – destroying the handgun – would be outweighed by the incidental damage.

However, when we replace the handgun with a massive storage area for missiles and missile launchers or with a command center or with a strategic capability (such as technology to disrupt the effectiveness of Israel’s Iron Dome missile defense system) of the enemy, then the equation and result changes.

IN WAR, civilians often die and property is damaged. When Israel fights the terrorists in Gaza, it would appear that more Gazan civilians than Israeli civilians die, and more Gazan property than Israeli property is destroyed or damaged.

This result has nothing whatsoever to do with the legality of Israel’s warfare. The ostensibly high civilian casualty toll in Gaza, is usually merely a function of the Israel-haters denying reality and accepting that the Gazan terrorists are legitimate targets.

According to this argument, if the Gazan killed wasn’t wearing a uniform, he was clearly a civilian. This lie ignores the fact that the terrorists, while not necessarily wearing uniforms, are still considered to be legitimate targets.

The deaths of legitimate civilians and ostensibly high level of destruction in urban neighborhoods do not reflect Israel’s disregard for the principle of distinction or proportionality, but rather are reflective of the fact that terrorists intentionally use civilians, including women and children, as human shields and intentionally place their military infrastructure in the heart of the civilian population.

While the death of every non-combatant is unfortunate, the people who bear the responsibility for each and every one of those deaths, are the terrorists.

From personal experience, I can attest to the extensive precautions Israel and the IDF take when engaging in urban warfare. We do that because we are fighting not only a just war but also to maintain our high moral standards. For the terrorists, on the other hand, IHL is irrelevant. All they care about is murdering Jews.

In Lewis Caroll’s Through the Looking Glass, Humpty Dumpty famously says, “When I use a word, it means just what I choose it to mean – neither more nor less.”

As much as the Israel haters may opt to distort its meaning, Proportionality in IHL is very clear and its meaning does not change into what they would like you to believe it means.

The writer, an IDF Lt. Col. (res.), is the director of legal strategies for Palestinian Media Watch. He served for 19 years in the IDF Military Advocate General Corps. In his last position, he served as director of the Military Prosecution in Judea and Samaria.