During the Muslim holy month of Ramadan, a time traditionally dedicated to peace, reconciliation and forgiveness, Hamas terrorists fired around 4,000 rockets from the Gaza Strip aimed at innocent civilians in Israel. Twelve people were killed in these attacks. Among them were Jews and Muslims, women and children. More than 70 percent of the Israeli population lived in the shadow of hundreds of rockets every day. Depending on the distance from Gaza, they had between 15 seconds and a minute to find protection. Imagine 70 percent of Indians live like this for two weeks. Certainly India, like any other country and like Israel, would have exercised its legal right to protect its citizens from terrorism.
The reason for sharing these facts – simple numbers are often used to accuse Israel of allegedly guilty of war crimes by punishing Gaza without caring about civilian casualties. Every war is tragic. Everyone’s death is a lost world. It is sad when children die in such armed conflict. A common misunderstanding in the public perception of armed conflict is the term “proportionality”. The number of injuries on each side is compared to determine which side used disproportionate violence. From a legal point of view, this notion is legally flawed and in fact illogical.
The generally accepted principle of proportionality is defined as the obligation to refrain from any attack that is expected to cause accidental loss or injury to civilians or damage to civilian property. The principle of proportionality essentially means that military commanders must assess two factors before any military strike.
First, they need to examine the concrete and direct military advantage expected from an attack, although neutralizing some targets would of course have a greater advantage than others. To offer such an advantage, it must first be a military target, such as a weapons depot, command and control center, or the enemy’s armed forces. What is important is that an apparently civilian object used by the enemy for military purposes can be seen as a legitimate target.
Second, based on the information reasonably available at the time of the attack, commanders must estimate the expected accidental loss of life or property of civilians (collateral damage). The military commander assesses how many civilians will be in the area of the planned attack. They then assess the extent of the expected damage to civil property, including the indirect damage to be considered, if this can reasonably be expected. Finally, the military commander must take all practicable precautions to reduce damage to civilians and civilian objects.
Based on these assessments, the commander must weigh these two components and decide whether to carry out the attack. If the assessment leads to the result that the expected damage to civilians or civilian objects is viewed as too high in relation to the expected military advantage, the attack would be unlawful.
How is this proportionality principle affected if Hamas intentionally conducts its military activities from densely populated areas rather than protecting its civilians? More specifically, how is Israel supposed to protect its major cities from Hamas rockets when those rockets are designed, built and launched by the civilian population of Gaza?
The Armed Conflict Act clearly states that civil presence to protect military targets from attack does not grant immunity to the target. That is, if Hamas commits the double war crime of attacking Israeli children, schools and airports from its own civilian population, its analysis of the situation would be skewed if Hamas’ criminal behavior were not taken into account.
Despite Hamas’s blatant disregard for the law or the well-being of its citizens, Israel is doing everything it can to prevent or at least minimize harm to the Palestinian civilian population, often at the expense of operational benefits. In doing so, Israel uses precautions that go beyond the requirements of international law, as well as the practices that are customary by the advanced military of Western states. Fighting an enemy who is deliberately abusing the law of armed conflict in the most cynical way poses great challenges to Israeli soldiers. Nevertheless, Israeli commanders strictly apply international law, including the principle of proportionality, in any military action.
One has to ask, why does Hamas use its own people as human shields? The answer brings us back to the beginning of this article – the misunderstanding of the concept of proportionality and the knee-jerk reaction that ignores the question of who put Gaza’s civilian population at risk in the first place? In other words, Hamas pays no price for its war crimes against its own civilians, and in fact, Israel is often wrongly accused by the same terrorist organization. This situation offers Hamas an incentive to continue with its heinous practices.
Hamas is internationally recognized as a radical Islamic terrorist organization. Its ultimate goal, which is clearly stated in its charter, is not the establishment of a Palestinian state, but the destruction of Israel. When Hamas won elections in the Palestinian territories in 2006, it refused to respect the existing written agreements between Israel and the Palestinian leadership and committed itself to non-violent dialogue and recognition of Israel. Hamas forcibly seized power in Gaza and diverted billions of dollars in aid to build schools, hospitals and public facilities to build terror tunnels and rockets to destroy Israel. Hamas is committing a double war crime – it deliberately targets Israeli civilians and endangers the civilian population of Gaza by using them as human shields. At the same time, Hamas is running a disinformation campaign to provoke Palestinians and Israeli Arabs. The absurdity of their propaganda is obvious: last year Israel normalized relations with five Muslim countries and supplemented its historic peace agreements with Egypt and Jordan. Israel’s commitment to peace is clear to countries like Sudan, Morocco, the United Arab Emirates, Bahrain, and others. Let us hope that it will also be the same for our immediate neighbors, the Palestinians.
The author is Consul General of Israel, Mumbai. This article was written prior to the inauguration of the Naftali Bennett government in Israel