The fighting in Gaza poses many challenges in terms of international law. One of the significant challenges is the issue of proportionality.
Many acknowledge Israel’s right to self-defense and recognize that the IDF targets only military objectives in Gaza. However, some claim that the attacks are disproportional. These claims, as well as the rebuttals, often show a misunderstanding of international law.
The proportionality of an attack, according to the laws of warfare, is not measured by comparing the number of civilian casualties on the opposing sides. The legal requirement is that a military objective should not be attacked if the expected harm to civilians is excessive in relation to the anticipated military advantage from the attack.
The proportionality of the attack is not measured by the number of civilian casualties that it resulted in; rather it is determined by what the commanding officer knew or should have known in real time when the attack was planned and executed.
War is a “realm of uncertainty.” A specific location might end up having more civilians than expected, while in another area, an attack on a tunnel might impact an unknown stockpile of rockets that would end up blowing up and causing collateral damage to civilians.
The IDF is committed to employing reasonable measures to minimize harm to civilians as a result of its attacks. This is especially evident in the calls for residents of northern Gaza to move south to reduce the risk from the conflict. These calls have included precise guidance on the timing and safe evacuation routes.
An external observer cannot effectively assess the proportionality of the attack without being privy to the information pertaining to the anticipated military advantage and the planning process that such an attack involves. It’s no coincidence that there has never been a case where the international criminal courts convicted a soldier for carrying out a disproportionate attack.
However, this doesn’t guarantee that in the prevailing anti-Israel bias, there won’t be attempts to use the Jewish state to create a global precedent.
In the international legal framework, some elements hinder while others assist Israel’s efforts. Indistinct calls from ministers and Knesset members, even if marginal and influential, such as the call to “conquer” Gaza, are well received among those who seek to portray Israel’s intentions as non-proportionate. On the assisting side, there are the military prosecutors and the legal advisory system to the government.
Israel has long realized that the legal dimension is crucial for achieving the military objective and for its translation into long-term diplomatic achievements.
Despite the misconceived notion that this involves arm wrestling, this process is conducted through an ongoing dialogue between the legal, military and political echelons from all levels—from the division commander to the special War Cabinet—aiming to find the most effective way to achieve the objectives of war within the framework of Israel as a law-abiding state.
International law allows the attacking of a legitimate military objective and only prohibits unnecessary brutality. If we emphasize this, we will prevail in this campaign as well.
Col. (res.) Dr. Liron A. Libman served as the head of the International Law Department in the IDF and is now a private lawyer, mediator, and lecturer at Sapir College.
Originally published by Israel Hayom.
