The fighting in Gaza entails many challenges from the standpoint of international law. One of the biggest challenges is the question of proportionality. Many admit that Israel has the right to defend itself and recognize that the IDF attacks only military targets in Gaza, but argue that the attacks are disproportionate. The claims, and sometimes the response given to them, fail to understand international law.
Proportionality in an attack, according to the laws of war, does not compare the number of civilian casualties on both sides. The legal requirement is that a military objective will not be attacked if the anticipated harm to civilians is excessive in relation to the military advantage expected from the attack. The proportionality of the attack is not measured by the "test of outcome," by the actual number of civilian casualties, but by what the commander knew or could have known in "real time" when the attack was planned and carried out.
Palestinian report: IDF attacks high-rise near Jerusalem hospital in northern Gaza Strip
War is the "realm of uncertainty." In one place, there may be more civilians than expected, and in another, an attack on a tunnel may damage an unknown depot of rockets that will explode and widen the damage to civilians. The IDF is obligated to take reasonable measures to reduce the harm to civilians as a result of its attacks, and it is clear that it is doing so, especially by calling on residents of the northern Gaza Strip to evacuate south in order to reduce the risk of harm caused by the fierce fighting. This call included precise instructions regarding the hours and routes on which evacuations would be safe.
An external observer cannot reliably assess the proportionality of an attack without being informed of the anticipated military benefit and its planning process. It is no coincidence that in all the rulings of the international criminal courts there is not a single case in which a soldier was convicted of disproportionate assault. Of course, this does not guarantee that within the framework of the biased attitude towards Israel, no attempt will be made to create a global precedent precisely on our backs.
IDF forces in the Gaza Strip, photo: IDF Spokesperson
In the international legal campaign, there are those who harm and those who help. Inflammatory calls by ministers and Knesset members, even if minor and ineffectual, such as the call to "flatten" Gaza, are well received by those who seek our ill, as "evidence" of Israel's intentions to act disproportionately. On the assisting side are the MAG Corps and the Attorney General's Office.
Many years ago, we realized that the legal dimension is essential for achieving the military goal and translating it into a long-term political achievement. Contrary to the absurd image of "lowering hands," this is a process of ongoing dialogue between the political echelon, IDF commanders and jurists, at all levels, from the division to the war cabinet, whose goal is to identify the best way to achieve the goals of combat, within the framework of the State of Israel being a state of law. The law allows for the achievement of a legitimate military purpose and prohibits only unnecessary brutality. If we are careful about this, we will win this battle as well.
The writer served as head of the IDF's International Law Department. Today he is a private attorney, mediator and lecturer at Sapir College
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