‘Proportionality’: Why International Law Gives Israel a Freer Hand Against Hamas

In the coming days, there will be claims that Israel is inflicting “disproportionate” casualties on Palestinians in Gaza as it responds to the terror attack by Iran-backed Hamas this weekend on the Jewish holiday of Shemini Atzeret.

Activists and analysts will compare casualty figures in Israel — now passing 600 dead and 2,000 wounded — with casualty figures in Gaza. Already, left-wing critics of Israel have tried to equate the numbers of dead on each side.

Such comparisons overlook the fact that Palestinian terrorists targeted civilians, who account for the majority of Israeli dead, while the Israeli military is targeting terrorists, who are typically the vast majority of Palestinian dead. Moreover, Hamas and other Palestinian terror groups use civilians as human shields, hiding weapons, fighters, and infrastructure in civilian buildings so that even if Israel attacks these sites, Palestinians claim a propaganda victory.

Palestinian deaths will continue to rise as Israel invades Gaza to attack Hamas and rescue Israeli civilians. Israeli casualties will likely stop climbing, provided Hezbollah does not open a second front by attacking from Lebanon.

That will lead to claims that Israel is killing “disproportionate” numbers of Palestinian civilians. But that is a false use of the doctrine of proportionality in international law.

Under international law, while civilian casualties are to be avoided, they may be lawful in wartime if the number of deaths is proportionate relative to the legitimate military goal, not to the number of deaths on the other side.

This war is different from past conflicts between Israel and Hamas.

Previously, Israel’s military goal was to stop and deter Hamas attacks on Israeli cities. Now, the goal is to remove Hamas from Gaza — and it is a legitimate goal, though it will be harder to achieve, and will result in more deaths.

Ultimately, responsibility for Palestinian civilian deaths rests with Hamas and Iran, who launched this conflict. Israel will likely do what it has done in previous conflicts: call off airstrikes where civilians are spotted; warn residents of imminent missile strikes; and place its own soldiers at risk rather than wipe out entire areas.

But in terms of international law, Israel has far more leeway than it did before, though its critics will claim otherwise.

Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the new biography, Rhoda: ‘Comrade Kadalie, You Are Out of Order’. He is also the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.