“Israel only uses proportionate force; civilian deaths are the unavoidable cost of self-defence”

Proportionality in the law of armed conflict is not a comparison of body counts; it prohibits attacks expected to cause civilian harm excessive in relation to the concrete and direct military advantage anticipated. The claim that Israel observes it is testable against what Israeli commanders have said the doctrine is.

The United Nations Fact-Finding Mission on the Gaza Conflict, reporting in September 2009 as document A/HRC/12/48, traced a strategy that emerged from the 2006 Lebanon war and took its name from the Beirut neighbourhood flattened in it. At paragraph 1195 it quoted Major General Gadi Eisenkot, then chief of Israel’s Northern Command and later the IDF’s chief of staff: “What happened in the Dahiya quarter of Beirut in 2006 will happen in every village from which Israel is fired on. […] We will apply disproportionate force on it and cause great damage and destruction there. From our standpoint, these are not civilian villages, they are military bases. […] This is not a recommendation. This is a plan. And it has been approved.” The Mission observed at paragraph 1198 that “General Eisenkot used the language quoted above while he was in active service in a senior command position and clarified that this was not a theoretical idea but an approved plan.”

He was not alone. The Mission recorded that Major General (Ret.) Giora Eiland had argued that in a future war the target should be “the elimination of the Lebanese military, the destruction of the national infrastructure and intense suffering among the population… Serious damage to the Republic of Lebanon, the destruction of homes and infrastructure, and the suffering of hundreds of thousands of people are consequences that can influence Hizbollah’s behaviour more than anything else.” A month earlier Colonel (Ret.) Gabriel Siboni had written that on the outbreak of hostilities “the IDF will need to act immediately, decisively, and with force that is disproportionate to the enemy’s actions and the threat it poses.” The reclassification of civilian villages as military bases, and of civilian suffering as a means of pressure, is the operative move in each formulation: it is what converts disproportion from a violation into a plan.

The same reclassification appears in the ministerial record after 7 October 2023, and the International Court of Justice set it out in its order of 26 January 2024. The Court took note of the statement of Defence Minister Yoav Gallant on 9 October 2023 ordering a “complete siege” of Gaza City with “no electricity, no food, no fuel,” and of his words to troops the following day: “I have released all restraints… We are fighting human animals.” It noted President Isaac Herzog’s statement of 12 October that “it is an entire nation out there that is responsible. It is not true this rhetoric about civilians not aware, not involved.” It noted Energy Minister Israel Katz on 13 October: “All the civilian population in [G]aza is ordered to leave immediately… They will not receive a drop of water or a single battery until they leave the world.” The Court recorded that 37 UN Special Rapporteurs and independent experts had voiced alarm on 16 November 2023 at “discernibly genocidal and dehumanising rhetoric coming from senior Israeli government officials,” and that the Committee on the Elimination of Racial Discrimination had noted on 27 October 2023 “the sharp increase in racist hate speech and dehumanization directed at Palestinians since 7 October.”

The Court’s response was to order provisional measures. By sixteen votes to one it directed that “the State of Israel shall take all measures within its power to prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza Strip,” and by the same margin that it take immediate and effective measures to enable the provision of basic services and humanitarian assistance. Direct and public incitement to commit genocide is a punishable act under Article III of the 1948 Genocide Convention, independent of whether genocide follows. A court does not order a state to suppress incitement by its own officials as a courtesy.

None of this is a claim that Israel faces no armed attack, or that Hamas’s conduct on 7 October 2023 was lawful — the deliberate killing and abduction of civilians is a grave crime whoever commits it. It is the narrower point that the phrase “proportionate force” cannot be defended by assertion when the officers responsible for the doctrine have described it in the opposite terms, and when the statements of serving ministers have been placed before the International Court of Justice as evidence of intent.

Sources

• Report of the United Nations Fact-Finding Mission on the Gaza Conflict, A/HRC/12/48, 25 September 2009 — paragraphs 1194–1199 on the Dahiya doctrine (PDF)
• International Court of Justice, order on provisional measures of 26 January 2024, South Africa v. Israel — paragraphs 51–53 and the dispositif (PDF, UN Question of Palestine)
• Convention on the Prevention and Punishment of the Crime of Genocide (1948), Articles II and III — United Nations Treaty Series, vol. 78, I-1021 (PDF)