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The Israel-Hamas cease-fire won't end this major misconception about the use of force

'Proportionality' in international law isn't a synonym for parity in the damage inflicted by each side, but whether that damage is merited by the danger a target poses.
Image: Adi Vaizel, looks at the damage caused to the kitchen of his house after it was hit by a rocket launched from the Gaza Strip earlier this week, in Ashkelon
Adi Vaizel looks at the damage caused to his house in Ashkelon, Israel, on May 20, after it was hit by a rocket launched from the Gaza Strip.Amir Cohen / Reuters

Truth is the first casualty of war, or so the saying goes. While the fighting on the ground between Israel and Hamas might be letting up after an early morning cease-fire went into effect Friday, there’s no doubt that the battle of words, symbols and blame rages on. And perhaps no single word is more misunderstood and misused, more severed from its essential truth, than “disproportionate.”

Maybe Israel should cease using its Iron Dome aerial defense system — which tries to shoot down inbound rockets to prevent casualties — and let an equal number of its own citizens be wiped out?

Across politics and pop culture, Israel’s critics took to social and traditional media over the course of the recent hostilities to accuse the country of using “disproportionate force” against the Palestinians. In a typical example, former Democratic presidential candidate Julian Castro tweeted Thursday that “Israeli air strikes have killed 227 people, including 64 children. Destroyed 1,000 homes and displaced 75K people.” While he said, “Attacks from Hamas must be condemned,” he continued, “But this isn’t a case of Israel only defending itself. It’s grossly disproportionate force.”

These numbers, individually and collectively, are tragic by any measure. But they don’t indicate that Israel used force in a way that was amoral, unlawful or wrong. What is wrong is the common depiction of what disproportionate force means, and clearing up such misconceptions is crucial to understanding what just unfolded and what should be done moving forward.

The concept of “proportionality” in international humanitarian law is not a simplistic synonym for parity, and does not refer to each side inflicting equal levels of force or damage. Rather, it refers to the value of a military target (i.e. how much of a threat the target poses) versus the expected loss of civilian life and property damage.

A former chief prosecutor of the International Criminal Court, Luis Moreno-Ocampo, succinctly articulated this rule when he wrote in 2006 that humanitarian law is violated when “an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage.”

“Last Week Tonight” host John Oliver gave a great example of how much he and others misunderstand this definition during his HBO show last Sunday. After lamenting the power imbalance between Israel and Hamas, he challenged his audience: "If you believe Israel's actions are warranted and proportionate this week, you're welcome to try and make that argument."

Challenge accepted.

Hamas, the Islamist terrorist organization that took over the Gaza Strip from the more secular Palestinian Authority by force in 2007, regularly commits numerous violations of international law. Breaches include hiding behind human shields, embedding military infrastructure within civilian infrastructure (schools, hospitals, mosques, media offices), constructing cross-border terror tunnels and, of course, firing rockets indiscriminately from densely populated Palestinian civilian areas toward densely populated Israeli civilian areas.

Each of the rockets fired is a war crime, not based on whether it kills or injures Israelis, but merely by the intended targeting of civilians. Over the last few weeks, by the Israel Defense Forces’ count, over 4,300 rockets have been fired into Israel, killing 12 innocent people. No sovereign country would tolerate such shattering attacks on its citizens and territory.

What would a proportionate response to this onslaught be to Oliver? To even out the power imbalance, maybe Israel should cease using its Iron Dome aerial defense system — which tries to shoot down inbound rockets to prevent casualties — and let an equal number of its own citizens be wiped out? Or should Israel simply forgo its precision-guided missiles and fire 4,300 rockets indiscriminately into Gaza?

While that seems to be the logical conclusion of the international chorus, Israel instead has instituted measures to minimize civilian casualties, notably by warning Palestinians of upcoming airstrikes via telephone, by “knocking” the rooftops of buildings with low-grade explosives to give occupants time to flee and by airdropping leaflets so that civilians can vacate the buildings from which Hamas operates. As Jerusalem Post Editor-in-Chief Yaakov Katz explained this week, Israel’s operation was “shaping up to be the most accurate and precise military operation in modern military history.”

After hitting over 1,000 targets in Gaza sheltering the personnel, infrastructure or weaponry of Hamas and other militant groups, 243 people were killed, according to the Gaza Health Ministry. They claimed 100 were women and children, and wouldn’t disclose the number of fighters among the dead. The Israel Defense Forces claimed that 225 were actually terrorists. Even if the truth lies somewhere in the middle, Israel’s military response has been remarkably careful and restricted, and by humanitarian law, completely proportionate to the threat it faces.

Yet instead of strengthening Israel’s ability to minimize collateral damage in Gaza — something everyone ostensibly wants — there are legislators who recommend the opposite. A $735 million sale of precision-guided weapons approved by the Biden administration drew the ire of Reps. Rashida Tlaib, D.-Mich., and Ilhan Omar, D.-Minn. On Thursday, Sen. Bernie Sanders, I-Vt., submitted a resolution to halt the sale. In another win for Hamas, House Democrats voted against applying sanctions on the Iran-backed terror group and rejected emergency funding for Israel’s Iron Dome.

Underlying this discussion of proportionality also lies an implicit equivalence between Israel, an imperfect but multiethnic and multireligious democracy, and a terrorist organization whose foundational charter enshrined a call for the destruction of Israel and the slaying of Jews.

Unfortunately, even if this cease-fire holds, it is all but inevitable that another escalation will soon erupt, bringing fresh accusations of disproportionality along with it. If this war is ever to end, truth must be restored as well as calm, and that begins with an accurate understanding of where true wrongdoing is being committed and a commitment to fight wholeheartedly against it.