The Principle of Proportionality in the Case of Gaza and Israel

The Principle of Proportionality in the Case of Gaza and Israel*

Eileen Vis

01 November 2023

Introduction via Metaphor:

We shall begin with a scene many of us can visualize: A playground. In this playground there is one swing, three slides, a collection of platforms that often get imagined into castles and forts, and, of course, about twenty children racing around. As we watch the children run around we notice that two of them are arguing over who gets to use the swing next**.

Child A states that it is their turn next as they have been waiting since the playground opened to use the swing, but that Child B and a few others have not been sharing. Child B tells Child A that they had their turn yesterday, so they do not get another one. Child A argues that this is not right, they remind Child B that everyone else has gotten multiple turns on the swing yesterday and today. Child B rolls their eyes and pushes Child A out of the way so they can get to the swing.

This is not the first time Child A has been pushed by Child B, but it is one of the harder pushes, it sends them to the ground. They stand back up and, as Child B swings by, Child A throws a handful of woodchips at the other. The playground erupts into action when Child B screams that five of the ten woodchips thrown hit them, they point to the scratches on their face and neck, the blood already slipping down their skin. Child B leaps off the swing and turns to Child A, who does not have time to prepare for Child B's attack. One fist hits Child A's cheek, the next hits their stomach, the third sends them to the ground. And then Child B starts kicking. Other children call out for them to stop, to let Child A get back up. Others, still, cheer on the fight, citing that Child A deserves the beating because they technically started it with a handful of sticks. Somehow, Child B is allowed to continue kicking. And Child A stopped moving a few minutes ago.

The purpose of this essay is to outline how the principle of proportionality can be applied to the case of Gaza and Israel. By providing this outline I seek to illustrate that the Israeli response to the Hamas Attack of 7th October 2023 was entirely disproportionate and the blow it dealt to Israel's own military legitimacy will have global effects. This essay is broken down into three primary sections and a final section: The first provides definitions of proportionality, jus ad bellum, jus in bello and explains the interpretations given in each context through the use of a hypothetical scenario prior to a real-world situation. The second section gives context of the case in question and how the conflict reached its conflagration point. The third section analyzes the Israeli response with regard to proportionality and the effect it has on Israel's military legitimacy. The final section will express final thoughts and recommendations for potential future solutions.

Section One – A Definition and an Explanation Walk into a Negotiating Room

In this provocative, albeit, simple metaphor, we can rationalize a few emerging thoughts regarding the principle of proportionality. Firstly, this principle has been cycling through the academic sides International Human Rights Law (IHRL) and International Politics (IP) for nearly a century now. Clarifying proportionality contains its challenges, and the length of this essay is not conducive to giving that full clarity. Thus, the author will focus on the idea that 'in law of war [proportionality] focuses on balancing the achievement of the legitimate objective with the cost of individual rights…behind military actions' (Joo[5] 16). This in turn insists that there is a certain permission granted to States that allows the violation of individuals' rights in precedent yet exceptional circumstances (Joo[5] 16). Modern discourse often pits the legal and political aspects against each other, but this author would agree with the statement 'that there are both legal and political as well as subjectivity and objectivity behind the principle of proportionality' (Joo[5] 17). Discussions of this principle also insist on the need for a certain amount of equilibrium and the recognition that nothing happens in a vacuum, that the environment of the society influences the responsiveness of the law (Joo[5] 24).

The UN Charter specifies that there is a right to self-defense against an armed attack on a Member State and that a Member who exercises this right must report any and all measures taken to the Security Council (United Nations[17] 1945). This right to self-defense is one of the 'conditions under which States may resort to war or to the use of armed force in general' (ICRC[15] 2015) or in legal terms, jus ad bellum. Once this condition has been established jus in bello is the regulatory framework that governs how all parties in the conflict must conduct themselves (ICRC[15] 2015). International Humanitarian Law (IHL) and jus in bello function in tandem to 'minimize suffering in armed conflicts, notably by protecting and assisting all victims of armed conflict to the greatest extent possible' (ICRC[15] 2015). In order to grasp, fully, the idea of proportionality, we need to understand it as it aligns with jus ad bellum and jus in bello.

The principle of proportionality is often the necessary balance needed to maintain both jus ad bellum and jus in bello. It operates effectively as a unit of measurement within jus in bello, its primary feature being the assessment on 'whether the expected collateral damage to civilians and civilian objects of an attack on a legitimate military target [my bolding] is excessive' (Kretzmer[2] 236). To put it in more simple terms a State's 'response must be proportionate to the act that provoked it' (Kretzmer[2] 238). This assessment also implies that a proportionate response does not incur a disproportionate amount of harm in the response action, and the harm caused does not outweigh the proposed benefits attached to whatever ends may have been set at the beginning of the conflict (Kretzmer[2] 238). It is acknowledged that this unit of measurement is more often than not incredibly difficult to apply and even more difficult to sufficiently determine. Jus ad bellum and proportionality have a harder relationship to synchronize. In this sense proportionality functions as a judgment of the legitimacy surrounding the use of force, similar to jus in bello it emphasizes the need to weigh 'the force used in the reprisal against the unlawful [originating] act' (Kretzmer[2] 239). However, there is an added caveat in the consideration of proportionality when it comes to judging the legitimacy of self-defense. When a State finds itself defending 'against an armed attack, proportionality relates to whether force used (the means) is proportionate to the legitimate ends of using that force (self-defence)' (Kretzmer[2] 239). The challenge here presents itself in the fact that there is no widely agreed upon definition of what the legitimate end is, whether that be the end of all possibility for future attacks (which has its own potential violations of IHL) or simply the end of current hostilities between both parties, or perhaps some third end buried in-between. Proportionality influences the analysis we apply to conflicts especially in terms of legitimacy and its acuteness 'when the response in self-defence takes place after the attack has been carried out and completed, and there is no longer an attack to halt or repel, or when the armed attack has not yet occurred but is imminent' (Kretzmer[2] 239). In this addressal, proportionality and necessity often interact and support the other by giving us multiple ways to judge a response without finding ourselves too tangled up in comparisons and legal wording. Looking to include necessity gives proportionality a further scope, especially when considering the two prongs necessity can inhabit: 'a rational connection between the means and the ends' or that the means taken were the only available option to achieve the sought after ends (Kretzmer[2] 239).

Returning to our metaphor would be valuable to our forward progress as we can apply the ideas addressed in a less complicated space before we discuss the case of Gaza and Israel in depth. We, as observers of the children's squabble, can say that Child A and Child B are engaged in combat therefore (bringing the metaphor to the edge of reasonability but not beyond it) we can say they fall under the law of war.

Firstly, Child B pushed Child A onto the ground, thus creating the condition for jus ad bellum. We could argue that Child A throwing ten woodchips at the swinging Child B is proportionate using jus in bello reasoning. Both children were slightly injured by woodchips in different forms. We must also recognize that only five of the ten woodchips struck Child B, therefore satisfying the idea that the force used was equivalent or even less-than the force of the originating incident.

Secondly, following the woodchip attack Child B is now also operating under jus ad bellum, but their reprisal quickly goes well beyond something we could deem as proportionate. It would be fair to say that the first punch, though a little more forceful than the sticks, is proportionate as it sets an end point for the conflict. But Child B surges quickly beyond this end. They continue to batter Child A, even after the imminent threat has disappeared and the chance of a reprisal from Child A became less and less of a possibility.

Thirdly, we can also bring in the tandem concept of necessity in the process of judging the proportionality. Child A, pushed to the ground, obviously deemed it necessary to throw sticks (the means) in order to get Child B to give them a turn on the swing (the end). We have already established that the reaction was proportionate and, as this is a rationalized connection, we can even agree with Child A's claim of necessity. The same cannot be said for much beyond Child B's initial response. We have established that Child B's first (and only the first punch) was proportionate to Child A's stick attack and, much the same, we can recognize the rationality linking the means and the end to establish the necessity of the response. But we absolutely cannot find the necessity or proportionality in the continued punching and kicking of Child A. The escalation taken on by Child B does not determine necessity even under the second prong that the means taken (the punches and kicks) were the only available option to the end (keeping Child A from the swing or fighting back), unless of course we change the end to Child A's eventual hospitalization. This still rules out proportionality, and our playground has now witnessed a fight so aggressive it shifts the balance of power substantially.

Section Two – The Remains of History

We do not live in this playground. We operate and observe in a world of constantly shifting power dynamics. The case of study for this essay is the conflict that arose between Gaza and Israel on 7th October 2023. This is not a squabble between children, but rather, an attack on Israel by an internationally labeled terror syndicate, Hamas. An attack that Israel responded to with a bombardment that shocked the world with its brutality. Before we can cover whether this reprisal to the Hamas attack was proportionate we need to understand how the situation unfolded because, as we all know, nothing happens in a vacuum.

It would be sufficient to only go back a few years, but there are a few international standards we need to apply and understand. In that vein of thought, then, we should start back in 1945 with the finalization of the United Nations Charter. Specifically, Chapter XI, Articles 73 to 74, which discusses the governing and handling of occupied territories. It impresses upon Member States the need to remember that they must uphold human rights standards for the portions of their populations who have not yet achieved full self-government (United Nations[18] 1945). Palestine, since the end of the British Mandate, operates under this definition of an occupied territory. As an occupied territory it has suffered various violations of these inherent rights since 1948 and continuing to today. In 1967 Palestine fell under military occupation and the situation has only worsened in time as the international community turned its back on the territory.

In the following decades Israel would pursue policies of settler-colonialism which 'erases autonomous indigenous sovereign capabilities [through] the forcible extension of settler citizenship' (Veracini[3] 572). The policy of settlements over the course of half a century forced 5,041,612 (World Bank[19] 2022) people into two regions that total about 2,349 square miles (Britannica[10/11] 2023). These policies also revolved around segregation of the population, creating an atmosphere where settlers were given preferential treatment. This Apartheid regime (Mokhiber[16] 2023) is not the only straw on the proverbial camel's back: Palestinians living in the world's largest concentration camp, the Gaza Strip, have been subjected to continuous and escalating violence since the Nakba in 1948 (Al Jazeera[7] 2023).

During this period of time, an organization that would eventually be labeled as a terror syndicate rose to power in Palestine. The establishment of the organization known as Hamas did not happen instantaneously nor was it a straightforward process. Therefore, it is necessary to this essay that a brief but thorough understanding of their rise to power is given.

Hani Awad describes the creation of Hamas best in his article Understanding Hamas: Remarks on Three Different and Interrelated Theoretical Approaches. Through the lens of a religious movement, it clarifies how Hamas grew out of the significant economic down-turn suffered by the Middle East. The lack of economic security for a generation of young Palestinians in the 1970s created pathways for them to increase their participation in higher education arenas that had developed as a response to the inability to study beyond Israel/Palestinian borders (Awad[1] 44). This created a higher level of awareness regarding the abuses suffered by the settler-colonial policies led by Israel. It also created an atmosphere for connection between those veterans who had previously studied beyond Palestine – and familiarized themselves with the objectives of the Muslim Brotherhood – and those younger students who were growing ever more aware of their potential political power.

Awad insists that focusing only on the religious lens is dangerous and does not allow for the entire scope to be understood ([1] 54). Hamas is also a Social Movement Organization that rose in order to address the will of the people who felt that their interests were not being served at the institutional level (Awad[1] 49-53). The SMO allowed for a national narrative to be broadcasted throughout the population, one that called for a free Palestine and insisted that the power of government came from the people and that self-determination also applied to Palestinians. This formation of a collective provided the needed network within the growing governmental factions. The Palestinian Liberation Organization (PLO) became a conduit for the collection of these connections (Awad[1] 51).

The final lens that provides a helpful understanding of Hamas' rise to power is that of hyper-nationalism and its singular focus on influencing the political legitimacy. Hyper-nationalism within Palestine allowed for Hamas to grow its militant branch under the auspicious guise that any 'armed struggle…served other primary functions, most importantly: elite formation, political legitimation, nation building and consolidating the Palestinian political "entity"' (Awad[1] 54). In short, this explanation provided Palestinians with the assurance that should Hamas gain the legitimate political authority 'they would then be able to demand statehood on their behalf' (Awad[1] 54).

This essay does not have room for all of the nuances that allowed for Hamas to rise to power, especially since their original organization and today's present iteration have vast differences in goals and power. Understanding the basics of their creation, however, illuminates a few key pieces of the history that is influencing the events of today. They describe themselves as a protector and a militant within the OPT since Israel – the United Nations Member State who was supposed to 'assume [the] responsibilities for administration of territories whose peoples have not yet attained full measure of self-governance' (UN[17] 1945) – has since become the biggest aggressor against Palestinian civilians .

Reports state that in the past 15 years (since 2008) Israel has launched four separate military operations against the people of Gaza (Al Jazeera[6] 2022). By looking at this pattern of Israel attacks, we slowly recognize that since its creation in 1948, proportionality has never been a consideration for Israel.

In 2008, Israel responded to the firing of rockets at a southern Israeli town, Sderot, with a 22 day military operation (Al Jazeera[6] 2022). During the course of the operation 13 Israelis were killed and 1,400 Palestinians were killed, placing the ratio at 1 (Israeli):108 (Palestinians).

In 2012, Israel staged a military operation to assassinate the military leader of Hamas, Ahmad Jabari (Al Jazeera[6] 2022). Following this mission, a successful one where the objective was completed, Israel then launched an eight day campaign of air raids.

In 2014, Hamas kidnapped and executed three Israeli teenagers. Israel's response was to engage in a seven week war that ended with an Israeli death toll of 73 (not including the three murdered teenagers) and a Palestinian death toll of 2,100 (Al Jazeera[6] 2022). That ratio is 1 (Israeli):29 (Palestinians).

In 2022, Israel claimed Hamas had launched rockets following a period of high tension and responded with air raids that targeted Gaza. The eleven days of fighting resulted in a death toll of 260 Palestinians and 13 Israelis (Al Jazeera[6] 2022), placing the ration at 1 (Israeli):20 (Palestinians).

These accounts only cover the conflicts labeled as military operations between 2008 and 2022. These numbers do not account for the amount of deaths associated with the Settlement policies and other incursions by Israeli security forces. It also does not account for Palestinian attacks on Israel.

We understand that nothing on this Earth occurs in a vacuum, and Franzt Fanon said it best when he stated that a 'colonist keeps the colonized in a state of rage, which he prevents from boiling over' (Fanon[4] 17). Essentially, these past 75 years, the Israeli government has created an atmosphere within their state and the territories they occupy that maintains this sense of simmering rage, but with repressive tactics that delay the realization of rights for every citizen under their control.

Section Three – The Principle of Proportionality in the Case of Gaza and Israel

We turn, in this section, to the case of Gaza and Israel circa October of 2023. This essay has so far provided a balanced definition of the principle of proportionality, alongside a metaphor to bring about understanding of the interaction between proportionality, jus ad bellum, and jus in bello. The previous section outlined the concept that no reaction occurs without a preceding action, and that the continual oppression of a population creates an atmosphere rife with potential for revolt – ideological or physical.

October 7th, 2023, marks the day that that potential erupted once more in Israel and the OPT. Hamas gunmen entered into Israel from Gaza and launched attacks against the population they encountered within Israel, these ground forces were aided by rockets launched from Gaza (Amnesty International[10] 2023). The Israeli death toll from this attack totaled 1,400, many of them civilians and children (Human Rights Watch[13] 2023). The international community was quick to condemn these attacks, and the International Criminal Court has even launched war crimes investigations (Human Rights Watch[13] 2023). It is vital to remember that it violates international humanitarian law to target civilians and civilian objects (Amnesty International[10] 2023). Israel's response has been to launch a campaign of bombardment on Gaza, while also staging violent and often times deadly arrests within the West Bank. At the time of writing, the bombardment has been continuous with the Palestinian death toll reaching 8,648 in the past twenty-six days, many of these are civilians and children (Al Jazeera[8/9] 2023). That number is only the dead who could be recovered from the collapsed buildings. Those numbers currently set the ratio at 1 (Israeli): 6 (Palestinians). Here is where we need to start examining the principle of proportionality.

We must acknowledge, here and now, that Hamas recognized themselves in a condition where jus ad bellum was already in effect, and that they should have already been operating under the regulatory framework of jus in bello. Their attack, which targeted civilians and civilian areas, does in fact violate international law. This essay will not determine whether this originating attack was proportionate or not as I am operating under the definition of a proportional response and the time period of focus is the events following this October 7th attack.

In response, Israel declared war applying the condition of self-defense as specified under jus ad bellum, which means that every following action falls under the guidance of jus in bello. In the previous twenty-six days Israel has tightened their grip on Gaza's resources. The first week saw Israel cutting off access to water, food, fuel, and electricity for the citizens of Gaza (Al Jazeera[9] 2023, Amnesty International[10] 2023, Human Rights Watch[13] 2023). The next week saw Israel airstrikes attacking hospitals and areas declared safe-zones. Following airstrikes have included refugee camps, where Israel claims Hamas leaders are hiding behind the civilians as human shields (Amnesty International[10] 2023). On October 28th, Israel shut off all telecommunication capabilities for the area, effectively delaying any relay of information on one of the heaviest nights of bombings (Al Jazeera[8] 2023). Israel also limited the amount of humanitarian aid entering the demolished areas, including medical aid necessary to save civilian lives (Al Jazeera[9] 2023, Amnesty International[10] 2023). UN Secretary General commented that the amount of aid entering Gaza was but 'a drop of aid in an ocean of need' (United Nations[18] 2023).

Application of the principle of proportionality in the Israel-Gaza case appears pretty straight forward. It would be too easy to glance at the above information and declare the response disproportionate; however, much like mathematicians, our work must be shown through all of the steps of analysis before we can fully determine the correct answer.

Firstly, we already know that Israel is operating under jus ad bellum and jus in bello expectations. Their first response to the originating action could be determined one that is proportionate as it was directed towards 'legitimate military targets' (Kretzmer[2] 234) and the proposed civilian casualties were not, in the beginning, excessive. It would even be correct to say that Israel's response was necessary when evaluating their means (rockets) and ends (deterrence with the potential elimination of Hamas). This proportionality, however, ends with that first retaliation. The constant and indiscriminate bombing of Gaza is not conducive to Israel's proposed goal of deterring or even eliminating Hamas, thus eliminating the determination of necessity. The causalities of civilians and civilian objects has gone well beyond the mark of excessive, thus diminishing the proportionality response. Effectively, they have created a disproportionate amount of harm in response to the original harm.

Secondly, we must understand and acknowledge that Hamas was also an active participant in this conflict. They were launching rockets towards indiscriminate targets, with much less effect. While these attacks violated international humanitarian law and should absolutely be condemned, they do not affect the proportionality rating given to Israel. The recorded damage from Hamas rockets, at this current juncture, could even be considered proportionate in response to the continuous barrage sent by Israel. The amount of harm caused by them does not exceed or dwarf that caused by Israel.

Finally, we must consider how legitimacy and proportionality interact in this case. We know that self-defense is a legitimate response to the initiating attack. We can accept that with the initial response Israel was within proportion and held a legitimated reason for response. In twenty-six days of constant reprisals, that legitimacy has all but disappeared along with the proportionality. The policy of extermination of Hamas may be seen as a legitimate end, but the continued siege of Gaza and its civilians cannot possibly be considered a legitimate means to that end. Collective punishment is a war crime under the Geneva Convention (ICRC[14] 2010), meaning that in the eyes of international law, Israel's plans and progression of those plans are not legitimate. Without a defined and legitimate means the proportionality of Israel's responses completely disintegrates.

Conclusion – What Happens Next?

It is regrettable that this essay cannot cover fully every answer to the above proposal, and it does not fully compliment the measuring mechanism I have described in this essay, but my assessment is firm considering the focus is purely on this outbreak of violence. There is a great number of influencing factors that this paper did not have room to discuss, especially in relation to the military power of Hamas and Israel. The measurement of proportionality is hard to confirm and even harder to maintain in an environment that is constantly shifting and, especially, with such a dire situation consistent data is a wish left ungranted.

In terms of next steps, a ceasefire is absolutely necessary in the region. Humanitarian aid must be allowed into Gaza if the effects of the crisis are to be, in any way, mitigated. Holding both parties responsible for their atrocities will provide strength to the international system of justice, but there needs to be a considerable amount of political will. The international community must also recognize the need to determine more fully aspects of proportionality, specifically working towards a consensus on what "legitimate ends" might consist of.

Finally, both sides have committed atrocities and yet, it is a detriment to the international system that in the presence of an on-going ethnic cleansing and a genocide (Mokhiber[17] 2023), very few States have condemned the perpetrator. This response tactic only allows for future disproportionate responses to occur, and it creates future potential for greater losses of life.

* This essay was written under the supervision of Dr. Hassan Fartousi during my internship with Cultural Diversity and Sustainable Development for Peace (CD4Peace) in Geneva, Switzerland. My supervisor and colleagues are deserving of the highest thanks and acknowledgement for giving me their enduring support and for keeping my thoughts positive when my research was often increasingly negative. Thank you, CD4Peace Team, for giving me this opportunity and your words of encouragement on the tough days. It should also be stated that this paper was written as the atrocities in Gaza were occurring, as such facts presented may differ slightly.

** I understand that many cultures associate children with innocence and that perhaps using children in this metaphor would imply a lack of responsibility in the long term. However, I was guided by the understanding that children are far more impressionable than adults. As a result, they fit this metaphor better due to the belief I hold that the global arena is a system reliant on constant adapting ideologies and, like children, everyone involved requires a certain level of guidance. 



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