Did Israel use disproportionate force in Gaza?

By Dore Gold, Israel’s ambassador to the UN in 1997-99, is President of the
Jerusalem Center for Public Affairs and author of Hatred’s Kingdom: How Saudi
Arabia Supports the New Global Terrorism (Regnery, 2003) and The Fight for
Jerusalem: Radical Islam, the West, and the Future of the Holy City (Regnery,
2007).

December 28, 2008.

Israeli population centers in southern Israel have been the target of over 4,000
rockets, as well as thousands of mortar shells, fired by Hamas and other
organizations since 2001. Rocket attacks increased by 500 percent after Israel
withdrew completely from the Gaza Strip in August 2005. During an informal
six-month lull, some 215 rockets were launched at Israel.

The charge that Israel uses disproportionate force keeps resurfacing whenever
it has to defend its citizens from non-state terrorist organizations and the rocket
attacks they perpetrate. From a purely legal perspective, Israel’s current military
actions in Gaza are on solid ground. According to international law, Israel is not
required to calibrate its use of force precisely according to the size and range of
the weaponry used against it.

Ibrahim Barzak and Amy Teibel wrote for the Associated Press on December 28
that most of the 230 Palestinians who were reportedly killed were “security
forces,” and Palestinian officials said “at least 15 civilians were among the
dead.” The numbers reported indicate that there was no clear intent to inflict
disproportionate collateral civilian casualties. What is critical from the
standpoint of international law is that if the attempt has been made “to
minimize civilian damage, then even a strike that causes large amounts of
damage – but is directed at a target with very large military value – would be
lawful.”

Luis Moreno-Orampo, the Chief Prosecutor of the International Criminal Court,
explained that international humanitarian law and the Rome Statute of the
International Criminal Court “permit belligerents to carry out proportionate
attacks against military objectives, even when it is known that some civilian
deaths or injuries will occur.” The attack becomes a war crime when it is
directed against civilians (which is precisely what Hamas does).

After 9/11, when the Western alliance united to collectively topple the Taliban
regime in Afghanistan, no one compared Afghan casualties in 2001 to the
actual numbers that died from al-Qaeda’s attack. There clearly is no
international expectation that military losses in war should be on a one-to-one
basis. To expect Israel to hold back in its use of decisive force against
legitimate military targets in Gaza is to condemn it to a long war of attrition
with Hamas.

Israel is currently benefiting from a limited degree of understanding in
international diplomatic and media circles for launching a major military
operation against Hamas on December 27. Yet there are significant international
voices that are prepared to argue that Israel is using disproportionate force in its
struggle against Hamas.

Israeli Population Centers Under Rocket Attack

There are good reasons why initial criticism of Israel has been muted. After all,
Israeli population centers in southern Israel have been the target of over 4,000
rockets, as well as thousands of mortar shells, fired by Hamas and other
organizations since 2001.1 The majority of those attacks were launched after
Israel withdrew completely from the Gaza Strip in August 2005. Indeed, rocket
attacks increased by 500 percent (from 179 to 946) from 2005 to 2006.

Moreover, lately Hamas has been extending the range of its striking capability
even further with new rockets supplied by Iran. Hamas used a
20.4-kilometer-range Grad/Katyusha for the first time on March 28, 2006,
bringing the Israeli city of Ashkelon into range of its rockets for the first time.
That change increased the number of Israelis under threat from 200,000 to half
a million.2

Moreover, on December 21, 2008, Yuval Diskin, Head of the Israel Security
Agency, informed the Israeli government that Hamas had acquired rockets that
could reach Ashdod, Kiryat Gat, and even the outskirts of Beersheba.3 The first
Grad/Katyusha strike on Ashdod, in fact, took place on December 28. There
had been no formal cease-fire between Israel and Hamas, but only an informal
six-month tahadiya (lull), during which 215 rockets were launched at Israel.4
On December 21, Hamas unilaterally announced that the tahadiya had ended.

Critical Voices

On December 27, 2008, UN Secretary General Ban Ki-moon’s spokesmen
issued a statement saying that while the Secretary-General recognized “Israel’s
security concerns regarding the continued firing of rockets from Gaza,” he
reiterated “Israel’s obligation to uphold international humanitarian and human
rights law.” The statement specifically noted that he “condemns excessive use
of force leading to the killing and injuring of civilians .”5

A day later, Navi Pillay, the UN High Commissioner for Human Rights “strongly
condemned Israel’s disproportionate use of force.” French President Nicolas
Sarkozy, who holds the rotating presidency of the European Union, also
condemned Israel’s “disproportionate use of force,” while demanding an end to
rocket attacks on Israel.6 Brazil also joined this chorus, criticizing Israel’s
“disproportionate response.”7 Undoubtedly, a powerful impression has been
created by large Western newspaper headlines that describe massive Israeli
airstrikes in Gaza, without any up-front explanation for their cause.

Proportionality and International Law: The Protection of Innocent Civilians

When international legal experts use the term “disproportionate use of force,”
they have a very precise meaning in mind. As the President of the International
Court of Justice (ICJ) in The Hague, Rosalyn Higgins, has noted, proportionality
“cannot be in relation to any specific prior injury – it has to be in relation to the
overall legitimate objective of ending the aggression.”8

In other words, if a state, like Israel, is facing aggression, then proportionality
addresses whether force was specifically used by Israel to bring an end to the
armed attack against it. By implication, force becomes excessive if it is
employed for another purpose, like causing unnecessary harm to civilians. The
pivotal factor determining whether force is excessive is the intent of the military
commander. In particular, one has to assess what was the commander’s intent
regarding collateral civilian damage.9

What about reports concerning civilian casualties? Some international news
agencies have stressed that the vast majority of those killed in the first phase of
the current Gaza operation were Hamas operatives. Ibrahim Barzak and Amy
Teibel wrote for the Associated Press on December 28 that most of the 230
Palestinians who were reportedly killed were “security forces,” and Palestinian
officials said “at least 15 civilians were among the dead.”10

It is far too early to definitely assess Palestinian casualties, but even if
they increase, the numbers reported indicate that there was no clear intent to
inflict disproportionate collateral civilian casualties.

During the Second Lebanon War, Professor Michael Newton of Vanderbilt
University was in email communication with William Safire of the New York
Times about the issue of proportionality and international law. Newton had been
quoted by the Council on Foreign Relations as explaining proportionality by
proposing a test: “If someone punches you in the nose, you don’t burn down
their house.”

He was serving as an international criminal law expert in Baghdad and
sought to correct the impression given by his quote. According to Newton, no
responsible military commander intentionally targets civilians, and he accepted
that this was Israeli practice.

What was critical from the standpoint of international law was that if the
attempt had been made “to minimize civilian damage, then even a strike that
causes large amounts of damage – but is directed at a target with very large
military value – would be lawful.”11 Numbers matter less than the purpose of
the use of force. Israel has argued that it is specifically targeting facilities
serving the Hamas regime and its determined effort to continue its rocket
assault on Israel: headquarters, training bases, weapons depots, command and
control networks, and weapons-smuggling tunnels.

This way Israel is respecting the international legal concept of
proportionality. Alternatively, disproportionality would occur if the military
sought to attack even if the value of a target selected was minimal in
comparison with the enormous risk of civilian collateral damage.

This point was made by Luis Moreno-Orampo, the Chief Prosecutor of the
International Criminal Court, on February 9, 2006, in analyzing the Iraq War. He
explained that international humanitarian law and the Rome Statute of the
International Criminal Court “permit belligerents to carry out proportionate
attacks against military objectives, even when it is known
that some civilian deaths or injuries will occur.”

The attack becomes a war crime when it is directed against civilians
(which is precisely what Hamas does) or when “the incidental civilian injuries
would be clearly excessive in relation to the anticipated military advantage.”12
In fact, Israeli legal experts right up the chain of command within the IDF make
this calculation before all military operations of this sort.

Proportionality as a Strategic Issue

Moving beyond the question of international law, the charge that Israel is using
a disproportionate amount of force in the Gaza Strip because of reports of
Palestinian casualties has to be looked at critically. Israelis have often said
among themselves over the last seven years that when a Hamas rocket makes
a direct strike on a crowded school, killing many children, then Israel will finally
act.

This scenario raises the question of whether the doctrine of proportionality
requires that Israel wait for this horror to occur, or whether Israel could act on
the basis of the destructive capability of the arsenal Hamas already possesses,
the hostile declarations of intent of its leaders, and its readiness to use its
rocket forces already.

Alan Dershowitz noted two years ago: “Proportion must be defined by
reference to the threat proposed by an enemy and not by the harm it has
produced.” Waiting for a Hamas rocket to fall on an Israeli school, he rightly
notes, would put Israel in the position of allowing “its enemies to play Russian
Roulette with its children.”13

The fundamental fact is that in fighting terrorism, no state is willing to play
Russian Roulette. After the U.S. was attacked on 9/11, the Western alliance
united to collectively topple the Taliban regime in Afghanistan; no one
compared Afghan casualties in 2001 to the actual numbers that died from
al-Qaeda’s attack. Given that al-Qaeda was seeking non-conventional
capabilities, it was essential to wage a campaign to deny it the sanctuary it had
enjoyed in Afghanistan, even though that struggle continues right up to the
present.

Is There Proportionality Against Military Forces?

And in fighting counterinsurgency wars, most armies seek to achieve military
victory by defeating the military capacity of an adversary, as efficiently as
possible. There clearly is no international expectation that military losses in war
should be on a one-to-one basis; most armies seek to decisively eliminate as
many enemy forces as possible while minimizing their own losses of troops.

There are NATO members who have been critical of “Israel’s
disproportionate use of force,” while NATO armies take pride in their “kill
ratios” against the Taliban in Afghanistan. Moreover, decisive military action
against an aggressor has another effect: it increases deterrence.14 To expect
Israel to hold back in its use of decisive force against legitimate military targets
in Gaza is to condemn it to a long war of attrition with Hamas.

The loss of any civilian lives is truly regrettable. Israel has cancelled many
military operations because of its concern with civilian casualties. But should
civilian losses occur despite the best efforts of Israel to avoid them, it is
ultimately not Israel’s responsibility. As political philosopher Michael Walzer
noted in 2006: “When Palestinian militants launch rocket attacks from civilian
areas, they are themselves responsible – and no one else is – for the civilian
deaths caused by Israeli counterfire.”15

International critics of Israel may be looking to craft balanced statements that
spread the blame for the present conflict to both sides. But they would be
better served if they did not engage in this artificial exercise, and clearly
distinguish the side that is the aggressor in this conflict – Hamas – and the side
that is trying to defeat the aggression – Israel.

Notes

1. For numbers of rockets, see Dore Gold, “Israel’s War to Halt Palestinian
Rocket Attacks,” Jerusalem Issue Brief, Vol. 7, No. 34, March 3, 2008,
Institute of Contemporary Affairs/Jerusalem Center for Public Affairs,
2. Robert Berger, “Israeli Official Warns of Growing Hamas Military Threat,”
Voice of America News, voa.com, May 17, 2008,
3. “News of Terrorism and the Israeli-Palestinian Conflict,” Intelligence and
Terrorism Information Center at the Israel Intelligence Heritage and
Commemoration Center (IICC), December 16-23, 2008,
4. “Intensive Rocket Fire Attacks Again Western Negev Population Center and
the Ashqelon Region after Hamas Announces the End of the Lull Agreement,”
IICC, December 21, 2008,
5. “Secretary-General Urges Immediate Halt to Renewed Israeli-Palestinian
Violence,” UN News Service, December 27, 2008,
6. “World Reacts to Israel Strikes in Gaza,” Deutsche Welle, dw-world.de,
7. Brazil Criticizes Israeli Attack on Gaza: Special Report: Palestine-Israel
Relations,” China View, http://www.chinaview.cn/, December 28, 2008,
8. R. Higgins, cited in “Responding to Hamas Attacks from Gaza – Issues of
Proportionality Background Paper,” Israel Ministry of Foreign Affairs, March
2008,
9. Abraham Bell, “International Law and Gaza: The Assault on Israel’s Right to
Self-Defense,” Jerusalem Issue Brief, Vol. 7, No. 29, January 28, 2008,
Institute for Contemporary Affairs/Jerusalem Center for Public Affairs,
10. Ibrahim Barzak and Amy Teibel, “Israeli Assault on Hamas Kills More than
200,” Associated Press, December 28, 2008,
11. William Safire, “Proportionality,” New York Times, August 13, 2006,
12. Office of the Prosecutor, International Criminal Court, The Hague, February
9, 2008,
13. Alan Dershowitz, “The Hamas Government Has Declared War Against
Israel: How Should Israel Respond?” Huffington Post, March 14, 2008,
14. Richard Cohen, “…No, It’s Survival,” Washington Post, July 25, 2006,
15. Michael Walzer, “How Aggressive Should Israel Be? War Fair,” The New
Republic Online, July 31, 2006.