Responding to Hamas Attacks from
Gaza - Issues of Proportionality

(IFM) Israel is in a conflict not of its own making - indeed it withdrew every Israeli soldier and all 9000 Israeli civilians from the Gaza Strip in its 2005 disengagement initiative. But it is forced to act in self-defense to protect itself from deliberate missile attacks on its civilians by the Hamas terrorist organization.

Although Hamas makes no effort to comply with international law, Israel is committed to limiting itself to a lawful response. This means that, while Hamas uses civilians both as a shield and a target, Israel seeks to limit injury to civilians on both sides.

International law recognizes that civilian deaths and injuries may occur in lawful military operations. For an operation to be lawful it must be directed at a "legitimate military objective" and be "proportionate".

Under the Geneva Conventions, if a military objective, such as a missile launcher or weapons stockpile, is placed in the heart of a civilian area, it does not cease being a lawful military objective. The responsibility for civilian causalities arising from the 'shielding' lies with the party that deliberately placed civilians at risk.

International law also requires that any military operation be 'proportionate' to the military advantage anticipated. In making this assessment, proportionality is to be measured not against any single specific attack, but in the light of the overall threat being faced. This is a complex and difficult calculation and international law relies on the best determination of the commander in the field in the heat of the conflict.

Israel has adopted these principles of the law of armed conflict, both in its military training and in practice. Frequently, proposed operations are cancelled because the risk of injury to civilians might not be proportional to the military goals of the operation.

A survey of international practice suggests that the steps taken by Israel, and its approach to proportionality, correspond to, or are more stringent than, those taken by most western countries confronting similar threats.

The current fighting in situation in Israel and in Gaza and in particular the tragic death of civilians and damage to civilian property in the course of the conflict raises important and challenging questions. What is a legitimate target in responding to a terrorist attack? How can one determine if a response is disproportionate?

These questions are particularly acute in a situation in which the Hamas terrorist organization is using civilians both as a shield and a target. Israel, for its part, seeks to limit injury to civilians on both sides: the Israeli civilians deliberately targeted by Hamas' missiles and mortars, and the Palestinian civilians within whose midst it stockpiles and shoots them.