Israel’s Gazan campaign and the principle of proportionality

Israel’s Gazan campaign and the principle of proportionality

The growing death toll among Gaza’s civilian population and the images of dead bodies, injuries, and hospital wards are horrifying.

All decent human beings are heartbroken at this tragedy, and many have understandably called for Israel to halt the bombing. Some make those calls for all the right reasons: they denounce the barbaric atrocities Hamas perpetrated against Israeli civilians, they respect Israel’s right to defend itself, they draw no moral equivalence, they recognize that Hamas commits war crimes by hiding among the population and using civilians as shields, they understand that Israel does not target civilians but only Hamas terrorists, tunnels, and bases. They just cannot accept the death of so many innocents.

The main objection to the Israeli bombing of Gaza and the scale of attack is the claim that it violates the rule of proportionality, a fundamental principle of just war theory. All military action must be directed at combatants and not intentionally harm civilians. However, civilians may be inadvertently killed or injured in attacks if the military advantage accrued is proportionate to that harm. The Geneva Convention formulates the principle in this way: the military must “refrain from deciding to launch any attack which may be expected to cause” damage to civilians “which would be excessive in relation to the concrete and direct military advantage anticipated.”

Many people misunderstand proportionality as meaning that the net lives lost on one side cannot be disproportionate to the lives lost on the other; that because Hamas murdered “only” 1,200 Israeli civilians it is disproportionate that more than 1,200 noncombatant Gazans
should die.

This is not the case. The principle of proportionality focuses on future consequences of a military endeavor — will Israel’s bombing of Hamas combatants and the ground campaign produce a military advantage that is not “excessive” in relation to the harm to Gazan citizens?

The military objective Israel seeks is its survival. If Hamas is allowed to remain intact, it will rearm and make another such attack sooner or later. It has told the world clearly that it stands for the genocide of all Israelis and Jews, it has stated that goal in its charter, and it has proven now that it will carry it out if afforded the opportunity.

Three weeks after the attack, a Hamas official, Ghazi Hamad, promised “there will be a second, a third, a fourth” October 7 until Israel is exterminated. On November 8, a Hamas leader said that the goal of the massacre was to bring permanent war. Meanwhile, its ability to send rockets over much of Israel — soon over all of Israel, as rocket technology inevitably improves — means that no Israeli ever will be safe anywhere in Israel. Even now close to 200,000 Israelis have been forced to abandon their homes due to rocket fire.

In addition, allowing Hamas to remain in place may also embolden Hezbollah and other groups to attack Israel on all fronts, jeopardizing the state’s viability. No state can exist under such conditions.

Calling for Israel to cease the bombing of Gaza and its ground campaign essentially amounts to a call for Israel’s destruction. Therefore, the overall campaign against Hamas military targets, even with the unintentional, though foreseeable, loss of life to thousands or tens of thousands of Gazan civilians, is completely moral by just war theory.

Some critics may respond that it still is possible to seek an accommodation with Hamas, to negotiate a peace, to find other ways of coexisting, or to deter another assault. This seems very unlikely given Hamas’s genocidal promises. Many thought the same about Hitler, and we know the consequences: world war, the Holocaust and more than 70 million dead. These critics may be right, and they may be wrong. Israel cannot take the risk.

Yet most just-war theorists insist not only that the war be just, but that each individual military operation not cause disproportionate harm to civilians. The question becomes whether every single bombing strike has a net military advantage that outweighs the number of unintended civilian casualties. That is, not only the entire war itself, but all conduct in war, must satisfy the proportionality principle.

No doubt Israel believes that this is the case. Each terrorist killed, each Hamas weapon depot destroyed, each command center removed, contributes significantly, if incrementally, to the aim of destroying Hamas, hence the military advantage outweighs the harms caused to civilians, which Israel has tried to minimize by alerting them to move south.

Of course, not everyone will agree. The trouble is that there has never been consensus or even widespread agreement on what constitutes “excess” harm in relation to military advantage. Few philosophers and ethicists who write about the principle of proportionality provide any insights whatsoever about how to assess it in practice. A 2022 study published in the Journal of Military Ethics presented various scenarios to 300 experts working on law and ethics. The conclusion: a “lack of reasonable consensus among moral and legal experts concerning what proportionality in war requires in practice, outside of extreme cases.” Experts “are in no position” to offer reliable guidance. There is also debate about what exactly constitutes military advantage. Some would include deterrence against future attacks, while others would insist on immediate strategic benefits.

Hamas’s policies of waging war from positions among Gazans citizens, placing weapons in residential apartments and even near schools, firing rockets from heavily settled neighborhoods, and using human shields, are the main cause of the high toll of civilian casualties. Needless to say, these tactics all violate the Geneva Convention and every ethic of war. They also expose the flaw in the argument of those calling for Israel to desist. Not only would bombings be ruled out, but no military reprisal whatsoever would be possible. And then Hamas would continue to wage a genocidal war and make life impossible within Israel.

The loss of civilian life, even when a result of moral military conduct that complies with the principle of proportionality, has always been among the most heart wrenching and tragic consequences of war.

Those who call on Israel to halt that unintended loss of life of Gazan civilians and disproportionate number of casualties are calling for a much greater loss of life in the future. And also for the destruction of the State of Israel.

Dr. Jeffrey L. Rubenstein of Englewood is the Skirball Professor of Talmud and Rabbinic Literature in NYU’s department of Hebrew and Judaic studies.

read more: