Proportionality as a doctrine of the Law of Armed Conflict (LOAC) has emerged as one of the most misunderstood principles of international law in the recent outbreak of war between Israel and Hamas.
On October 7th, 2023, Hamas and PIJ launched a terror attack on Israel, which included the massacre of 1,300 civilians and the kidnapping of over 200, alongside massive indiscriminate rocket barrages on Israeli cities.
In recent days, and especially in the Western media, accusations have been made that Israel’s response to the attack is ‘disproportionate’ and, therefore, in violation of international law. Such accusations betray a fundamental misunderstanding of the laws of war and, specifically, the principle of proportionality. This article aims to provide an overview of this topic and correct some of the evident misapplications.
The Four Targeting Principals:
The four targeting principles are the legal framework to analyze what and how an attack can occur. It is important to clarify that such principles are only relevant for a specific attack or military action, not an entire operation or war. The principles are – distinction, military necessity, unnecessary suffering, and proportionality.
The distinction principle dictates that parties engaged in conflict must differentiate between civilian and military objects and personnel and are permitted to target only the latter. (1) In international conflict, military targets are lawful and unlawful combatants and objects that are being used in military activities. In non-international armed conflicts, military targets are objects or individuals that are taking an active part in hostilities.
The military necessity principle dictates that an attack should be carried out only if there is military reasoning behind it (i.e., it generates a military advantage or for a legitimate military purpose. Like, winning a war, or conquering an advantage point).
The third principle is that an attack should be carried out in a way that fulfills its military objectives but minimizes the suffering of its targets. (2) For instance, if an attack can be feasibly carried out by destroying a specific apartment rather than an entire building, and still carry the same results – a belligerent party should destroy the apartment.
The proportionality principle dictates there should be a balance between the anticipated military advantages, that the attack or the operation, generates and the collateral damage it inflicts on the civilian population or on protected objects (3). The key here is that proportionality must be assessed on a case-by-case basis with respect to each individual attack or operation, and not applied as a measure of evaluating whether overarching military and strategic decisions made by a party to a conflict are reasonable or justified. The propensity to misapply this principle provides ammunition to those who wish to utilize the laws of armed conflict to further a particular narrative.
Hamas Actions:
It goes without saying that Hamas’s indiscriminate fire of thousands of rockets at Israeli civilians and civilian infrastructure clearly violates the principle of distinction. This can be directly contrasted with Israeli strikes, which are aimed exclusively at military targets, though collateral harm to civilians in the densely populated Gaza region often results.
It should be noted that Hamas’ actions are seldom even discussed through the principle of proportionality when evaluating the lawfulness of their attacks, as such attacks fall foul of ‘distinction’ by intentionally targeting civilians.
Unfortunately, and unsurprisingly, Hamas has consistently weaponized Israel’s adherence to the principle of proportionality and its inherent concern for civilian wellbeing. By embedding military infrastructure deep inside civilian structures, such as schools, apartment buildings, and religious institutions, Hamas leverages Israel’s respect for the rule of law into a battlefield advantage and turns the civilians it is supposed to protect into human shields. By refusing to allow civilians to evacuate areas designated as active battlefields, Hamas attempts to ensure maximum civilian casualties and to pervert the balance of proportionality. Thus, by simultaneously ignoring the principles of distinction when conducting attacks and intentionally attempting to inflate non-combatant casualties, Hamas has consistently demonstrated its brutal disregard for both Israeli and Gazan civilians and the laws of war.
1 Additional Protocol I (1977), Articles 48, 51, and 52; ICRC, Study on Customary International Humanitarian Law, 2005, Rules 1 and 7
2 See for e.g., P I, Art. 57(3)
3 See PI, Art. 51(5)(b)
