31 Fall 2021 ntroduction This essay concerns the international law governing military operations as applied to the May 10-21, 2021, Hamas-Israel conflict. Its focus is the requirement that military operations not be excessive relative to the anticipated military benefit.1 Who decides what the law is, how to apply it, and whether it was followed in the May 2021 conflict are important questions. For Israel, the Israel Supreme Court has the last and decisive word in this respect. My conclusion is that, based on the present state of knowledge of Israeli operations, Israel acted in accordance with its international legal obligations, and Hamas violated its legal obligation to distinguish between military and civilian targets and not to use human shields. I. The May 2021 Conflict In May 2021, Hamas and its associate Islamic Jihad, also known as Palestine Islamic Jihad (PIJ), launched more than 4,000 rockets at Israeli civilian population centers. These targets are not military per se. Israel responded with attacks aimed at suspected Hamas/PIJ missile launch sites, bases, weapons caches, and tunnel systems used for attacks on Israel from the Gaza Strip.2 These are lawful military targets. “Proportionality”with respect to military operations depends on the reasonableness of each operation under the circumstances. It does not require use of the same weapons by both the attacker and the defender. Nor is it measured in terms of the quantum of damage or number of casualties. Commanders nevertheless must weigh the importance of the military target, for example, a missile battery in use, and the anticipated damage to non-military objects, including non-combatant facilities as well as people who may be in the vicinity or harmed during the attack. Protocol I of 1977, which contains language generally accepted even by non-parties such as Israel and the United States as accurate reflections of the customary international laws of war, provides, in part, that “Indiscriminate attacks are prohibited. . .. [T]he following types of attacks are to be considered indiscriminate: . . . an attack which 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.”3 Because Israel is usually blamed for causing excessive civilian casualties and damage to civilian objects measured in The Israel-Hamas Conflict of May 2021: Reflections on the International Law of “Proportionality” I Nicholas Rostow* * The views expressed in this article are the author's only and do not necessarily represent those of any organization with which he is or has been associated. 1. Israel occupies a special and possibly unique position: its enemies declare that they will destroy Israel if they can. Thus, Israel cannot lose a war and survive. Nonetheless, it must abide by the laws of war. Doing so will not make Israel more vulnerable to attack or destruction. 2. Iran was the principal supplier of rockets and rocketmaking know-how to Hamas but was not a target of Israeli forces. Fabian Hinz, “Iran Transfers Rockets to Palestinian Groups, ”WILSON CENTER INSIGHT AND ANALYSIS (May 19, 2021), available at https://www.wilsoncenter. org/article/irans-rockets-palestinian-groups. See also Lenny Ben-David,“Hamas’ AdvancedWeaponry: Rockets, Artillery, Drones, Cyber,” JERUSALEM CENTER FOR PUBLIC AFFAIRS (Aug. 1, 2021), available at https://jcpa.org/article/ hamas-advanced-weaponry-rockets-artillery-dronescyber/ 3. Protocol I Additional to the Geneva Conventions of 1949, June 8, 1977 (Protocol I), art. 51 (the same language reappears in art. 57), available at https://ihl-databases. icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDoc ument&documentId=4BEBD9920AE0AEAEC12563CD 0051DC9E
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