29 Winter 2025 on a “bullet-by-bullet basis,” and that individual parts of the attack should not be considered in isolation from each other.35 Wells-Greco applied his case-by-case methodology to the 2008 Israel-Hamas conflict, when Hamas launched rocket attacks against Israeli civilians, provoking an Israeli response causing casualties among Gazan civilians whom Hamas had used as human shields. In language stunningly prescient regarding Hamas’s horrific October 2023 mass casualty attack on Israeli civilians, Wells-Greco wrote: Most scholars seem to agree that for proportionality to be effective, the default mode of assessment must be a case-by-case analysis . . . Where does that leave us? In sum, whether an Israeli attack is disproportionate is completely independent of Hamas’ attacks: the ensuing proportionality analysis is the same if Hamas’ attacks kill ten Israeli civilians or a thousand. In either scenario, IHL obligates Israel to respond within the contours of proportionality.36 In a report discussing her decision not to pursue war crimes prosecutions arising from the United States’ 2003 invasion of Iraq, the International Criminal Court prosecutor noted that civilian deaths during war, no matter how regrettable, do not per se violate the proportionality principle: Under international humanitarian law and the Rome Statute, the death of civilians during an armed conflict, no matter how grave and regrettable, does not in itself constitute a war crime. International humanitarian law and the Rome Statute permit belligerents to carry out proportionate attacks against military objectives, even when it is known that some civilian deaths or injuries will occur. A crime occurs if there is an intentional attack directed against civilians (principle of distinction) . . . or 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 (principle of proportionality) ...37 Knoops has also noted that asymmetric warfare, such as that pitting a State such as Israel against a terrorist group such as Hamas that embeds itself within the civilian population, “induces a sui generis approach in that the proportionality principle is to be subjected to a teleological interpretation instead of one exclusively based on the objective outcome of military action.”38 A recent critic noted the proportionality doctrine inhibits nations from defending themselves, leading to prolongation of conflict and inability to achieve victory: Proportionality becomes the policy of not doing more than beating back the latest enemy attack—they shoot at us, we shoot back, the incident ends. The enemy is allowed to retain the initiative, to choose when, where, and how to launch the next attack, all while gaining experience and adapting to defeat American tactics more effectively. Instead of deterring the enemy, proportionality encourages the enemy in the belief that with proper preparation, America can and will be forced to retreat.39 Necessity, Proportionality and the October 2023 War Qualitative vs. Quantitative? How should proportionality be measured in the context of instances such as the Hamas October 2023 unprovoked slaughter, rape, sexual violence and maiming of hundreds of Israeli infants, children, elderly, and women? How should it be measured given Hamas’s and Iran’s declared intention to destroy Israel, and the ongoing rocket, missile and drone attacks against Israel from Iran’s other proxies in Lebanon, Iraq and Yemen? 35. Supra note 28, at 414-415. 36. Id., at 415. 37. Office of the Prosecutor, International Criminal Court, Letter dated (Feb. 9, 2006), available at https://www. icc-cpi.int/sites/default/files/NR/rdonlyres/04D143C819FB-466C-AB77-4CDB2FDEBEF7/143682/OTP_ letter_to_senders_re_Iraq_9_February_2006.pdf 38. Supra note 27, at 514. 39. D. Zamansky, “Why America Stopped Winning Wars,” TABLET MAGAZINE (Nov. 7, 2024), available at https:// www.tabletmag.com/sections/news/articles/why-americastopped-winning-wars
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