*This article also appears as a chapter in the 2023 KCIS Conference volume

In view of the enormous threat that Hamas currently poses to Israel, the denial of its military capabilities is expected to give Israel a great security advantage… In light of this significant military advantage, even if many civilians in Gaza are harmed during the attacks, this is not necessarily excessive incidental damage and therefore would not be disproportionate attacks that are illegal.[1]—Pnina Sarvit Baruch

I’m of the view, as you know, that the conduct of the response in Gaza, in the Gaza Strip, has been over the top… There are a lot of innocent people who are starving, a lot of innocent people who are in trouble and dying, and it’s gotta stop.[2]—President Joe Biden

Writing in the aftermath of the first Gulf War, Roger Normand and Chris af Jocchnick argued that, “While liberal jurists view law as a tool to influence belligerent conduct, the critical view adds the possibility that law may actually legitimize, and thereby encourage, the commission of atrocities.”[3] The contrasting statements from the ex-head of the Israeli Military Advocate General International Law Department, Pnina Sharvit Baruch, and President Biden support this notion of discordance, and underscore a long-standing rift that goes to the very heart of the legal requirements to protect civilians from the effects of armed conflict. This divide emphasizes the ongoing discourse between proponents of strictly adhering to written laws in armed conflicts to legitimize military operations and those who argue that military actions should not only comply with legal frameworks but also align with broader moral and ethical considerations.

This paper is an examination of the complimentary yet different roles that legitimacy and legality play in the decision-making process during armed conflict. Using the Israeli response to the attacks by Hamas on October 7, 2023, as a case study, this paper examines Israel’s military actions in Gaza and evaluates how current targeting laws may be interpreted to allow for collateral damage that is “over the top.”

The contemporary Law of Armed Conflict (LOAC) operates on the fundamental assumption that all involved parties will uphold and adhere to conventions, rules, and customs applicable in armed conflict, whether at the international or non-international level.[4] For many militaries, compliance with LOAC, specifically the provisions for protecting civilians, transcends mere legality. For them “the actual and perceived legality, morality, and rightness of the actions from the various perspectives of interested audiences… [including]… national leadership and domestic population, governments, and civilian populations in the [operating area], and nations and organizations around the world,” is key to ensuring operational legitimacy.[5] In accordance with this approach, even if certain actions are allowed under LOAC, they may not be deemed legitimate when evaluated within this wider ethical context. For others, virtually any form of military conduct can be legitimized, “so long as such conduct is directed towards achieving clear military objectives anticipated from the attack.”[6]

While the LOAC is intended to apply to all parties of a conflict, many present-day belligerents either disregard the rules of International Humanitarian Law (IHL) or intentionally breach them. Confronting an adversary that consistently violates the principles and rules of the LOAC presents considerable challenges for states that adhere to the law, occasionally rendering the reduction of civilian casualties a “near-impossible task.”[7] In these circumstances, military operations conducted against a treacherous foe will almost certainly result in high numbers of civilian casualties. In the face of such conduct, a dilemma emerges between the application of force that is legally permissible and force that is perceived as legitimate. This raises the potential risk that actions by the aggrieved party, though lawful under the LOAC, may be viewed as being non-legitimate in the eyes of both domestic and international observers.

It goes without saying that the foundation of operational legitimacy is grounded in adherence to and compliance with the law. Thus, when targeting and conducting attacks, the provisions concerning the safeguarding of civilians (distinction, precautions and proportionality) as outlined in Part IV of the First Protocol Additional to the Geneva Conventions of 1949 (AP1) must be respected and followed.[8] The Distinction rule, which is a core principle of IHL, requires that “Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”[9] Notably, the rule of distinction does not prohibit adversaries from killing civilians or damaging civilian properties. Rather, it stipulates that belligerent forces must direct their attacks only at military objectives.[10] The absence of a prohibition against killing civilians in the distinction rule is a direct acknowledgment of the principle of military necessity and a recognition that the primary objective of military operations is to achieve victory over the enemy. Consequently, in armed conflicts, non-combatant civilians can be lawfully killed during attacks on military objectives, so long as the attacking force complies with the requirements of International Humanitarian Law.[11]

When it is anticipated that civilian harm may be caused by an attack on a military objective, “the law of armed conflict obliges the parties to the conflict to exert additional efforts aimed at either avoiding or minimizing collateral damage (Article 57(2)(a)(ii)), which may be accomplished by an advance warning according to Article 57(2)(c), or by choosing an alternative target offering a similar military advantage but an attack upon which will result in least danger to civilians and civilian objects (Article 57(3)).”[12] Once feasible precautions have been taken, an attacking force is required to assess whether the attack “… may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”[13] If it is determined that the resulting incidental damage would be excessive in relation to the anticipated military advantage, the attack must not be conducted.

Although widely referred to as the proportionality rule, the test for excessive incidental damage is not one that is conducive to any form of proportionality calculation. Instead, as spelled out by President Barak in the Targeted Killings Case, the test for incidental damage “is a values-based test” that seeks to find a balance between the “conflicting values and interests,” of humanity and military necessity.[14] Writing in 2007, Professor Mike Schmitt noted that “Experience has demonstrated, time and again, that the application of international humanitarian law (IHL) on the battlefield is an exercise of extreme intricacy. No aspect of this body of law has proven more difficult to apply than that governing targeting….”[15] The most complicated aspect of the test is that “its interpretation, and especially the notion of what is to be considered ‘excessive’ civilian harm, continues to be extremely unclear.”[16] This issue was directly addressed by the International Criminal Tribunal for Yugoslavia in its “Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia” where the court stated:

The main problem with the principle of proportionality is not whether or not it exists but what it means and how it is to be applied.… It is much easier to formulate the principle of proportionality in general terms than it is to apply it to a particular set of circumstances because the comparison is often between unlike quantities and values. One cannot easily assess the value of innocent human lives as opposed to capturing a particular military objective.[17]

In the opinions of some, “the elasticity of the [concept of] “military necessity” under the laws of war, and particularly in the proportionality rule, has enabled belligerents to legally justify virtually any conduct …available to proponents of kreigsraison.”[18] Under this view, the law of war primarily serves the military priorities of states and can be interpreted in a manner that can legitimize and, consequently, encourage the commission of atrocities rather than uphold humanitarian objectives.

The very elasticity referred to above enables others to interpret the proportionality test through a natural law lens. Emphasizing humanitarian principles as the core tenet of the contemporary IHL, proponents for humanitarian interpretations of the LOAC argue that IHL is primarily “aimed at protecting all persons and [is] grounded in the principles of respect for the life, well-being and human dignity of the person.”[19] Advocates for this approach promote a broad, meaningful, and purposeful interpretation of IHL that can be attributed to the positivist foundation of the original Hague Laws, Geneva Conventions and the resulting customary international law.

Somewhere between the two, the realities of decision-making at the operational level unfold; military commanders face the imperative task of making crucial judgments that impact not only civilians but also combatants on both sides of the conflict. In this context, the current formulation of the proportionality test and its associated legal framework fall short in providing commanders with clear and practical guidance. For example, while destroying a village in order to neutralize a lone sniper would be a clear example of excessive damage in relation to a concrete and direct military advantage; in more complex situations, there is a notable lack of clear direction to aid commanders in determining the threshold for what qualifies as excessive civilian harm. This is particularly relevant when factors such as human shields, hostages, and an enemy operating within and concealing themselves among the civilian population come into play. Such is the current situation in the Gaza conflict.

The Covenant of Hamas, which provides a clear statement of the organization’s goal of eliminating the state of Israel and a Palestinian State that stretches “from the river to the sea” is a complicating factor in the determination of proportionality.[20] For many Israelis and Jews, the Hamas Covenant is an expression of genocidal intent that poses an existential threat to their very survival. In this vein, and as part of its response to the attacks of 7 October, the Israeli government “… has consistently articulated Israeli goals of securing the hostages’ return and destroying Hamas’s military and governing capabilities.[21] Advocating the requirement for total victory, the Israeli government has stated, “This is a necessary condition … and we will not relent on it. ... We will settle accounts with them. It is only a question of time.”[22] The statements by the Israeli government demonstrate their belief that there can be no lasting peace unless and until Hamas is neutralized, politically and militarily. This raises the question of whether political statements that spell out a state’s ultimate goals in a conflict can influence the tactical commander’s assessment of what the “concrete and direct military advantage” is in an attack.

While it is generally accepted “that the military advantage anticipated from an attack is intended to refer to the advantage anticipated from the attack considered as a whole and not from isolated or particular parts of the attack,” it is unclear in law whether a statement made in the context of the strategic mission can or should affect the proportionality test at the tactical level.[23] Given the extremely high number of civilian casualties inflicted in Gaza and the virtual obliteration of entire communities by Israeli attacks, it appears that Israeli assessments of “excessive civilian harm” in tactical level targeting are being considered in relation to the military advantage as assessed at the strategic level: that is, the complete destruction of Hamas. As Ken Watkin notes, such an approach “may raise concerns over an erosion of the principle of distinction, such as occurred during extensive bombing campaigns of World War II.”[24], [25]

The inherent imprecision of the proportionality test provides a vast grey expanse that unfortunately offers plenty of fodder for academic dialogue while providing scant guidance for those who need clear and meaningful direction in this most critical aspect of armed conflict. This area is rife for disagreement, particularly between those who contend that targeting law requires adherence only to the admittedly vague parameters as set out in the proportionality test, and those who believe that targeting must be conducted with the protection of civilians as a primary cornerstone of the process. William Fenrick offers that a generalized understanding of the critical aspects of targeting is often “hampered by the fact that such discussion as does take place occurs in two different forums and the discussants in each forum do not communicate adequately with the discussants in the other.”[26] While this generally holds true as between military officers and civilian rights advocates, it is important to note that dissonance also exists within military structures. Exactly how the proportionality test will be interpreted will depend on a variety of factors including the background of the conflict, societal attitudes toward human rights and the value of human life, various moral standards and religious beliefs, and a plethora of other factors that may be particular to the conflict and/or the parties involved.

Opinions about whether Israel is respecting the rule of proportionality in its Gaza campaign are many and varied. However, many of the perspectives being offered stem from diverse definitions and approaches to proportionality, with each opinion-holder asserting their interpretation of a somewhat obscure test as the correct one. The persistent question of “how much is too much?” will remain a challenge for International Humanitarian Law until there is a more widespread understanding of the meaning and scope of the proportionality test. In today’s international relations landscape, it is highly unlikely that a consensus can be achieved in addressing the core issues of the proportionality problem. Nevertheless, they exist and there will continue to be occasions for parties with similar perspectives to engage in discussions and potentially offer insights on the matter. Meanwhile, until such time as a clearer concept of what in bello “proportionality” means is formulated, it is crucial to furnish military commanders and legal advisors with appropriate guidance that enables them to make pivotal decisions aligned with the expectations of their respective states and broader societies.

End Notes:

[1]. Pnina Sharvit Baruch, The War with Hamas: Legal Basics (INSS Insight, 16 October 2023).

[2]. Biden Says Gaza Fighting “over the Top,” Pushing for a Pause. Reuters, accessed 12 February 2024, https://www.reuters.com/world/middle-east/biden-says-gaza-fighting-over-top-pushing-pause-2024-02-09/.

[3]. Roger Normand and Chris af Jochnick, The Legitimation of Violence: A Critical Analysis of the Gulf War, Harvard International Law Journal 35, 35, no. 2 (Spring 1994): 414.

[4]. Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949, accessed 8 February 2024. https://ihl-databases.icrc.org/en/ihl-treaties/gci-1949/article-1.

[5]. ‘Joint Operations Doctrine 3.0’ (US Department of Defence, 22 October 2018), A-4.

[6]. Roger Normand and Chris af Jochnick, The Legitimation of Violence: A Critical Analysis of the Gulf War, 389.

[7]. Claire O. Finkelstein, General (ret ) Joseph Votel, Why the ICJ Ruling Misses the Mark: Mitigating Civilian Harm With An Enemy Engaged in Human Shielding. Just Security, 29 January 2024, https://www.justsecurity.org/91517/why-the-icj-ruling-misses-the-mark-mitigating-civilian-harm-with-an-enemy-engaged-in-human-shieclding/.

[8]. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, accessed 8 February 2024. https://ihl-databases.icrc.org/en/ihl-treaties/api-1977.

[9]. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, accessed 9 February 2024. https://ihl-databases.icrc.org/en/ihl-treaties/api-1977/article-48.

[10]. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, accessed 13 February 2024. https://ihl-databases.icrc.org/en/ihl-treaties/api-1977/article-52(2).

[11]. Which Law Governs During Armed Conflict? The Relationship Between International Humanitarian Law and Human Rights Law. Minnesota Law Review, 10 November 2012, 1928.

[12]. Wolff Heintschel von Heinegg, Considerations of Necessity under Article 57(2)(a)(ii), (c), and (3) and Proportionality under Article 51(5)(b) and Article 57(2)(b) of Additional Protocol I: Is There Room for an Integrated Approach?, in Necessity and Proportionality in International Peace and Security Law, edited by Claus Kreß and Robert Lawless (Oxford University Press, 2020), 338. Of note, the precautions as laid out in Article 57(2)(a)(ii) and 57(2)(c) are subject to the limitations of feasibility and practicality.

[13]. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, sec. 51(5)(b), accessed 9 February 2024. https://ihl-databases.icrc.org/en/ihl-treaties/api-1977/article-51.

[14]. The Public Committee Against Torture in Israel v The Government of Israel (2006) HCJ 769/02 (High Court of Justice (Israel) 14 December 2006).

[15]. M. N. Schmitt, Targeting and International Humanitarian Law in Afghanistan, International Law Studies 85 (2007): 307.

[16]. Annyssa Bellal and Stuart Casey-Maslen, 10 The Rule of Proportionality, Oxford Public International Law, para. 10.14, accessed 6 February 2024. https://opil-ouplaw-com.proxy.queensu.ca/display/10.1093/law/9780192868909.001.0001/law-9780192868909-chapter-11.

[17]. Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, (2000) at para 48.

[18]. Chris af Jochnick and Roger Normand, The Legitimation of Violence: A Critical History of the Laws of War, Harvard International Law Journal 35, no. 1 (1994): 64.

[19]. United Nations, ed., International Legal Protection of Human Rights in Armed Conflict (New York: United Nations, 2011), 7.

[20] Associated Press Laurie Kellman, “From the River to the Sea”: Why These 6 Words Spark Fury and Passion over the Israel-Hamas War, Text, The Hill (blog), 11 November 2023. https://thehill.com/homenews/ap/ap-international/ap-from-the-river-to-the-sea-why-a-6-word-phrase-sparks-fury-and-passion-over-the-israel-hamas-war/.

[21]. Jim Zanotti and Jeremy M. Sharp, Israel and Hamas Conflict In Brief: Overview, U.S. Policy, and Options for Congress (Congressional Research Service, 6 February 2024), 4. https://crsreports.congress.gov.

[22]. Rachel E. VanLandingham, Criminally Disproportionate Warfare: Aggression as a Contextual War Crime, Case Western Reserve Journal of International Law 48, no. 1 (2016): 215.

[23]. See for example, Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, accessed 29 February 2024. https://ihl-databases.icrc.org/en/ihl-treaties/api-1977/state-parties/CA.

[24]. Gaza’s Death Toll Now Exceeds 30,000. Here’s Why It’s an Incomplete Count, NPR, 29 February 2024. https://www.npr.org/2024/02/29/1234159514/gaza-death-toll-30000-palestinians-israel-hamas-war.

[25]. Kenneth Watkin, Assessing Proportionality: Moral Complexity And Legal Rules, Yearbook of International Humanitarian Law 8 (December 2005): 43.

[26]. William J. Fenrick, Applying IHL Targeting Rules to Practical Situations: Proportionality and Military Objectives, 2009, 272. https://papers.ssrn.com/abstract=1817740.