It seems that every journalist sent to cover all matters Israeli views himself or herself as an expert in International Humanitarian Law, the branch of International Law governing action during war. And since everyone and their grandma has heard about the legal principle of proportionality, journalists and podcasters and interviewers like to raise it – often – in the context of any conflict which Israel finds itself party to.
So, it should have come as no surprise, that no sooner had the blood dried after the Simchat Torah massacre – and, in fact, even earlier – that international correspondents began falling all over each other to ask various Israeli representatives and spokespersons what Israel was doing in order to ensure that its response would not be ‘disproportionate’.
Unfortunately, such queries were met, for the most part, with responses in kind. Some posited that such a grotesque attack merited a ‘disproportionate’ response, in that only such a response had the capacity to deter future terrorist attacks such as the one on October 7. Many spokespersons, including some government Ministers, turned the question around and wondered aloud whether Israel should rape, murder and decapitate Palestinian civilians, including women and children, in order to ensure that the response was exactly ‘proportionate’ to the monstrous actions perpetrated by Hamas.
Of course, no Israeli action in response to the Hamas horrors was likely to be considered a ‘proportionate response’ and meet with international approval. And indeed, the condemnations began to roll in soon enough. For example, on October 23 the Times of Israel quoted the Prime Minister of Norway making the following unequivocal statement during a radio interview:
“International law stipulates that [the reaction] must be proportionate. Civilians must be taken into account, and humanitarian law is very clear on this. I think this limit has been largely exceeded.”
All and sundry have clearly been measuring proportionality as between the Hamas attack and the Israeli response. So, if the response is proportionate to the original attack, then Israel’s action will be deemed ‘kosher’ according to International Law – and if not, not. It hardly bears mentioning that if such a proportionality principle did indeed exist, it would be a losing proposition no matter what for Israel. After all, if there are estimated to be tens of thousands of Hamas terrorists in Gaza which Israel is seeking to wipe out, then even if not one Palestinian non-combatant were to be killed, the number of Palestinian (Hamas) victims would still be expected to greatly outnumber the unbearably high number of Israeli victims who were slaughtered on that Shabbat.
But, thankfully, there is no such principle of proportionality in International Law. Don’t get me wrong: there IS a principle of proportionality, except it bears no resemblance to the one portrayed over and over again in the media.
The actual principle of proportionality is based upon section 51(5)(b) of the First Protocol to the Geneva Convention, which doesn’t even mention the word ‘proportionality’. Rather, this section prohibits: “an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated”.
Wait, what?!? Proportionality isn’t measured against what your enemy did to you?!?
Well, no. Not at all. The proportionality (or ‘excessiveness’ according to the text of the Protocol) of an action is determined by comparing the expected civilian deaths and injuries, with the anticipated “direct military advantage”.
What this means is that it is prohibited, for instance, to kill thousands of civilians in order to dispatch a few low-level combatants whose demise is unlikely to greatly affect the war. On the other hand, this section might very well allow for a large-scale attack that was expected to bring about the swift end to a bloody war, even if many thousands of civilians were likely to be killed. Or perhaps even millions. Think Hiroshima and Nagasaki.
Basically, there are 2 main things to know about the REAL principle of proportionality:
- Proportionality is measured as against the direct military advantage anticipated;
- Proportionality is usually relevant to specific military actions, rather than an entire war/response.
So, each specific military action or series of actions of the IDF may be considered proportionate or disproportionate based upon its likely civilian cost as compared to its anticipated military gain. A hospital which serves as a Hamas command center? Certainly a kosher military target. Could an attack there be considered proportional? Well, depending on how important such a base is to the Hamas terror network and war effort, as compared with how many non-combatants are likely to be injured or killed, IT MOST DEFINITELY COULD.
At any rate, isn’t it about time that journalists and politicians masquerading as IHL experts learned a little bit about the principle of proportionality they so love to talk about?
