OpinionIsrael at War

What is a ‘proportionate response’?

Israel’s critics are lying about international law.

Israeli troops operating in the Hamas-ruled Gaza Strip, Nov. 16, 2023. Credit: IDF.
Israeli troops operating in the Hamas-ruled Gaza Strip, Nov. 16, 2023. Credit: IDF.
Dr. Eric R. Mandel
Dr. Eric R. Mandel is the director of MEPIN, the Middle East Political Information Network, senior security editor of The Jerusalem Report and a contributor to The Hill and The Jerusalem Post. He regularly briefs member of Congress and their foreign policy advisers about the Middle East.

In the Western mind, proportionality in war is simply a numbers game. The side that inflicts more casualties is acting disproportionately, is in the wrong and may even be committing crimes against humanity. This has no basis in international law, but it is useful as a rhetorical weapon.

Israel’s enemies make prodigious use of this numbers game, which is no surprise. After all, when Israel is fighting a terrorist entity that uses civilians as human shields in order to increase body counts, which are then used to manipulate journalists and international leaders, it is fighting an uphill public relations battle.

The “proportionality” argument also involves clear double standards. For example, during the U.S. campaign against ISIS in places like Mosul, where the terror group hid among one million civilians, it took nine months and 11,000 dead civilians to defeat ISIS. Yet there were few accusations of disproportionality in the media or from the international community. They knew ISIS had to be defeated and that civilians would die in the process.

Moreover, if this is all about numbers, then the implication is that Israel should indiscriminately kill 1,400 innocent Palestinian civilians and take an additional 240 hostage. It is unlikely that this is what those who preach about “proportionality” are advocating.

According to Alan Johnson in Fathom journal, the “goal pursued by military action must be proportionate to the ongoing threat faced. Israel’s goal to remove Hamas is proportionate because Hamas now poses an existential threat to Israel.”

He is correct because proportionality has nothing to do with the injury you receive but the goals you hope to accomplish.

So, what is “proportionate” in Israel’s war against Hamas?

According to an accurate, non-politicized reading of international law:

  • When terrorists use human shields and place their entire military infrastructure in civilian structures—a war crime in and of itself—those buildings lose their immunity to attack. The deaths of civilians are legally the fault of the terrorists who use them as human shields, so long as reasonable care is taken to minimize civilian casualties.
  • According to just war theory, you cannot target non-combatants if there is no legitimate military target. However, it is legal to attack a target if it advances your military goal, even if civilians are present.
  • According to the U.S. Department of Defense, a military must provide water and food to a civilian population, not fuel or electricity.

My analysis is not based solely on legal theories. I have covered previous Gaza wars, interviewed Israeli military ethicists and witnessed the scene in Sderot in the aftermath of the Oct. 7 massacre.

As a result, I know that this is not the first time Hamas has used hospitals as military bases. In 2014, I was with an elite Israeli unit that was fired upon by Hamas terrorists from an UNRWA hospital. They could not fire back because it was marked with a large “H” on the map, and they knew that returning fire could be considered a war crime.

So, they called a military lawyer on the phone. He told them to risk soldiers and get an audio feed from inside the hospital, wait for a drone to film the encounter, and finally, contact the Defense Minister to give the final OK. The IDF found terrorists in the hospital and tunnels beneath but lost three soldiers’ lives because it followed international law.

When former President Barack Obama or U.N. Secretary-General António Guterres tell Israelis not to let their rage overcome their responsibility to avoid civilian casualties, it is nothing but hypocrisy. Obama had no compunction about targeting ISIS terrorists embedded within civilian populations in Syria and Iraq. Guterres leads an organization that enables terror groups like Hamas by condemning Israel more than all other nations combined.

During the 2012 Gaza war, I watched as Israel responded to indiscriminate Hamas attacks against Israeli civilian communities. I saw from a radar command center on the Gaza border how hard Israel tried to avoid the Palestinian civilians being used as human shields at rocket launch sites. I remember leaving the command center and hoping my nation’s army was as ethical as what I witnessed.

The death of any innocent civilian is a cause for sadness. But moral equivalence between the planned, willful massacre, rape and abduction of Israeli civilians and the deaths and injuries of Palestinian civilians purposely placed in harm’s way in order to manipulate the international media is a perversion of just war theory and international law. If Israel cannot attack a Hamas military target because it has civilians nearby, Israel cannot shoot one bullet in its own defense. That is not proportionality, it is a demand for national suicide. Nothing could be less ethical.

Far more German than American or British civilians died during World War II. The RAF estimated that more than half of Cologne, Dresden, Düsseldorf, Frankfurt, Hamburg and Nuremberg, to name just a few German cities, were destroyed by Allied bombing. We call the American generation that defeated the Nazis the Greatest Generation because, despite that destruction, the Nazis had to be defeated.

Hamas, Hezbollah, Palestinian Islamic Jihad and their patron Iran are the 21st century Nazis. As the Hamas Charter says, “Israel will exist until Islam will obliterate it” and “the Day of Judgment will not come until Muslims fight Jews and kill them.” Or, as Iran’s Supreme Leader has said, Zionists (i.e., Jews) must be “uprooted and destroyed,” they are “illegitimate” and a “bastard regime,” they “cannot be called humans,” so “raze Tel Aviv and Haifa to the ground.” What more must they do and say before the West believes them?

Let Israel eradicate radical Islam from Gaza for the benefit of the world, including the Palestinians. Sadly, like German civilians during the Second World War, the Palestinians will pay a high price for Hamas’s heinous tactics and ideology. Unfortunately, there is no other choice.

The opinions and facts presented in this article are those of the author, and neither JNS nor its partners assume any responsibility for them.
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