It’s unequivocal that greater numbers of Palestinians than Israelis have been killed or injured during periods of intense conflict. This has repeatedly led to accusations that Israel has employed “disproportionate force” for security measures and during military operations over the years.
The term has has been abused by activists, journalists, non-governmental organizations and politicians who have employed it without bothering to research precisely what disproportionate actually means in terms of international law. One thing it does not mean an imbalance in casualty figures proves Israeli disproportionate force.
So what does it mean? Here are some explanations.
Writing for the Gatestone Institute, Shoshana Bryen explains the doctrine of proportionality:
Proportionality in international law is not about equality of death or civilian suffering, or even about firepower returned being equal in sophistication or lethality to firepower received. Proportionality weighs the military necessity of an action against the suffering that the action might cause to enemy civilians in the vicinity. A review of expert opinion – none of which was written in relation to Israel – helps to clarify. [All emphases below added.]
Prof. Horst Fischer, Academic Director of the Institute for International Law of Peace and Armed Conflict at the Ruhr-Universität Bochum in Germany, and Adjunct Professor at Columbia University, wrote in The Crimes of War Project:
“The principle of proportionality is embedded in almost every national legal system and underlies the international legal order. Its function in domestic law is to relate means to ends… In the conduct of war, when a party commits a lawful attack against a military objective, the principle of proportionality also comes into play whenever there is collateral damage, that is, civilian casualties or damage to a non-military objective… attacks are prohibited if they cause incidental loss of civilian life, injury to civilians, or damage to civilian objects that is excessive in relation to the anticipated concrete and direct military advantage of the attack. This creates a permanent obligation for military commanders to consider the results of the attack compared to the advantage anticipated.”
Operation Cast Lead
The UN’s Goldstone Report into the 2008-09 Operation Cast Lead, later recanted by its author Judge Richard Goldstone, asserted that Israel had launched a “deliberately disproportionate attack designed to punish, humiliate and terrorize a civilian population, radically diminish its local economic capacity both to work and to provide for itself, and to force upon it an ever increasing sense of dependency and vulnerability.”
Back in 2011, former commander of UK forces in Afghanistan, Colonel Richard Kemp stated in response:
no one has been able to tell me which other army in history has ever done more to safeguard the rights of civilians in a combat zone.
In fact, my judgments about the steps taken in that conflict by the IDF to avoid civilian deaths are inadvertently borne out by a study published by the United Nations itself, a study which shows that the ratio of civilian to combatant deaths in Gaza was by far the lowest in any asymmetric conflict in the history of warfare.
The UN estimate that there has been an average three-to one ratio of civilian to combatant deaths in such conflicts worldwide. Three civilians for every combatant killed.
That is the estimated ratio in Afghanistan: three to one.
In Iraq, and in Kosovo, it was worse: the ratio is believed to be four-to-one. Anecdotal evidence suggests the ratios were very much higher in Chechnya and Serbia.
In Gaza, it was less than one-to-one.
Gaza border riots
It’s not only major military operations that Israel is accused of disproportionate force. Fast forward to 2018 and Israel stands accused of using excessive force to deal with thousands of Palestinians rioters at the Gaza border fence.
Alan Baker writes about proportionality in this situation:
The concept of proportionality is a basic norm in the sphere of the laws of armed conflict in which armed forces in a state of combat operate against targets necessary to achieve their purpose of dealing with an enemy. In this context, the principle is that “Loss of life and damage to property incidental to attacks must not be excessive in relation to the concrete and direct military advantage expected to be gained.” (U.S. Army Field Manual FM27-10: Law of Land Warfare)
The accepted norm of international customary law relevant in armed conflict, as codified by the ICRC in its International Humanitarian Law Database, sets the limits of proportionality to the necessity “to achieve the concrete and direct military advantage anticipated,” yet “without causing excessive incidental loss of life, injury or damage” to civilians.
Even if one assumed that the stand-off between the Hamas-directed demonstration and Israel’s border guards was a situation of armed conflict, clearly, the fact that Israel strictly limited its use of firepower solely to those Hamas and Islamic Jihad operatives violating the border fence, is an example of Israel’s proportionate use of force. Hence, accusations of disproportionate and indiscriminate use of force have no factual or military basis.
Micah Halpern contends:
The words “proportionate” and “disproportionate” are not literary terms. They do not mean “equal” or “nearly equal.”
Proportionate does not mean that if Palestinians throw stones at Israel, Israel needs to throw stones back at Palestinians – or Molotov cocktails or pistol fire. It means Israel must have clear objectives and be responsible and moral in its choice of action used in defense against the threat.
The next time Israel is accused of disproportionate force, consider whether the charge is clearly defined and based on international law or if it’s simply hyperbole designed to delegitimize Israeli self-defense.
Recommended reading
- Did Israel Use “Disproportionate Force” to Protect the Gaza Fence?, Ambassador Alan Baker, JCPA
- The Doctrine of Proportionality, Shoshana Bryen, Gatestone Institute
- Israel’s Proportionate Response, Micah Halpern, Jerusalem Post
- What is Disproportionate Force?, FLAME
- The Question of Proportionality, Peter Lerner, Jerusalem Post
- Are Israel’s Attacks on Gaza Proportional?, Myer Freimann, Tablet magazine
