The Disproportionate Israeli Response

Michael Totten: Gaza & The Law of Armed Conflict

Excellent post answering the question "proportionate to what"? Depends on the source of law, and every definition is vague. There are the 1907 Hague Conventions:
Draft Articles of the Responsibility of States for Internationally Wrongful Acts. “Countermeasures must be commensurate with the injury suffered, taking into account the gravity of the internationally wrongful act and the rights in question.”
Which is more than a little vague.
“It’s always a subjective test,” Beehner correctly quotes Vanderbilt University Professor Michael Newton as saying. “But if someone punches you in the nose, you don’t burn their house down.”
Every civilized person agrees with that, but this "rule" was made for war between states with standing armies, not between a state and a terrorist gang. In the latter instance, what proportionality is possible?
Proportion, as defined by Beehner and the Hague Conventions, is impossible between Israel and Hamas. The Israel Defense Forces are more professional, competent and technologically advanced than Hamas and will inflict greater damage as a matter of course. And Hamas’s war aim is entirely out of proportion to Israel’s. Israel wants to halt the incoming rocket fire, while Hamas seeks the destruction or evacuation of Israel.
How do you fight "proportionately" against a foe that will never rest until you don't exist?

There is a doctrine that covers the current war, however. Another doctrine of proportionality, though, clearly applies to this war, and it’s found in the Law of Armed Conflict.

The Law of Armed Conflict “arises from a desire among civilized nations to prevent unnecessary suffering and destruction while not impeding the effective waging of war. A part of public international law, LOAC regulates the conduct of armed hostilities. It also aims to protect civilians, prisoners of war, the wounded, sick, and shipwrecked.”

Proportionality, in short and according to the law, “prohibits the use of any kind or degree of force that exceeds that needed to accomplish the military objective.” Hamas is still firing rockets; therefore, the IDF is not using more force than necessary to disrupt the firing of rockets. Israel, arguably, is using less force than necessary.

That's an interesting little wrinkle, isn't it? It's immoral and unjust not to fight to win.

And the IDF, unlike Hamas, does what it can to minimize injury to civilians.

“Militants often operate against Israel from civilian areas,” the Associated Press reported last week. “Late Saturday, thousands of Gazans received Arabic-language cell-phone messages from the Israeli military, urging them to leave homes where militants might have stashed weapons.” Israeli commanders are even warning individual Hamas leaders that their homes are on the target list so they can vacate the premises in advance.

Turns out that not targeting civilians --the doctrine of distinction-- is different from proportion in the Law of Armed Conflict:

[Distinction]“means discriminating between lawful combatant targets and noncombatant targets such as civilians, civilian property, POWs, and wounded personnel who are out of combat. The central idea of distinction is to only engage valid military targets. An indiscriminate attack is one that strikes military objectives and civilians or civilian objects without distinction. Distinction requires defenders to separate military objects from civilian objects to the maximum extent feasible. Therefore, it would be inappropriate to locate a hospital or POW camp next to an ammunition factory.”

Israel follows this; Hamas violates it twice over --it targets civilians in Israel and it hides among civilians in Gaza.

The law does not, however, prohibit Israel from striking legitimate military targets in civilian areas. “Although civilians may not be made the object of a direct attack, the LOAC recognizes that a military target need not be spared because its destruction may cause collateral damage that results in the unintended death or injury to civilians or damage to their property.”

Here's the clincher:

Hamas, then, is legally to blame for all, or nearly all, injuries and deaths of both Israelis and Palestinians.