30 No. 73 JUSTICE Should proportionality be measured quantitatively, meaning Israel is limited to killing and wounding the same number of Gazan civilians as Hamas did to Israelis in the October 7 attacks? Or should proportionality be measured qualitatively, meaning Israel must avoid civilian casualties in Gaza no matter what, even though Hamas uses civilians as human shields, hoping those civilians will be killed when Israel defends itself? Or does proportionality require Israel, as the stronger military force, to fight with one hand tied behind its back, taking breaks and pauses to allow Hamas to be resupplied and giving it time and space to rearm, reposition, and move hostages? Knoops cautioned against viewing proportionality in strictly quantitative terms: The proportionality principle is not akin to a mathematical touchstone. It is not to be defined in the abstract. One can thus not simply say that because the adversary in an armed conflict suffered civilian casualties totaling more than the other party to the conflict, the latter violated the proportionality principle . . . Hence, the mere fact that during an armed conflict civilians are killed, and even in terms of quantity in a “disproportionate” number compared to the casualties suffered by the offensive military party, does not constitute a violation of said rationale. Accordingly, such behaviour by itself is not tantamount to criminal behaviour.40 Israel’s Lawful and Proportionate Exercise of Self-Defense Following a brief period of sympathy for Israel after the October 7, 2023 Hamas rampage, the international community quickly (and very predictably) turned against Israel as the death toll in Gaza mounted during its military reprisals against Hamas. Israel faced accusations that its military response was “disproportionate” to the losses it suffered on October 7, so much so that it was accused of committing “genocide” in the Gaza Strip. The factual inaccuracy of these claims is stunning. The Israeli military is not perfect, but it takes far more steps to avoid civilian casualties than any other army or armed organization in the world. As early as October 13, 2023, Israel asked Gazans to leave the northern half of the tiny territory and move a few kilometers south for their own safety. The Israeli military was, in effect, notifying civilians in advance of upcoming military operations, saying it did not want to hurt them, and urging them to leave for their own safety.41 Moreover, Israel worked with Egypt and the United States to allow trucks carrying humanitarian relief supplies to enter Gaza as early as October 23, 2023, and since then thousands of truckloads of aid have been delivered, according to Palestinian Red Crescent officials.42 However, according to an April 2024 PLO-run television report and other sources, Hamas has been stealing food deliveries to Gaza and killing aid workers.43 Reports of 40. Supra note 27, at 504-505. 41. Prime Minister Netanyahu addressed these allegations in his July 24, 2024 speech to a joint session of the U.S. Congress: “The IDF has dropped millions of flyers, sent millions of text messages, made hundreds of thousands of phone calls to get Palestinian civilians out of harm’s way. But at the same time, Hamas does everything in its power to put Palestinian civilians in harm’s way. They fire rockets from schools, from hospitals, from mosques. They even shoot their own people when they try to leave the war zone. A senior Hamas official Fathi Hamad boasted – Listen to this – He boasted that Palestinian women and children excel at being human shields.” Full transcript of Netanyahu’s speech is available at https://www.timesofisrael.com/wereprotecting-you-full-text-of-netanyahus-address-tocongress/ 42. Jacob Magid, “Over 100 Aid Trucks Enter Gaza in a Day For 1st Time Since Start of Israel-Hamas War,” TIMES OF ISRAEL, Nov. 3, 2023 (“Palestinian Red Crescent says 374 trucks of food, water and medicine or medical supplies have entered via Rafah since October 21”). 43. Ephraim D. Tepler and Itamar Marcus, “Fatah: Hamas kills aid workers and steals food for itself,” PALESTINE MEDIA WATCH (April 21, 2024), available at https:// palwatch.org/page/35086 (quoting report from Fatah/ PLO-run Awdah TV); see also TOI Staff, “Gaza Aid Truck Stolen by Gunmen and Looted as Convoys Start Crossing from Israel,” TIMES OF ISRAEL (Dec. 17, 2023), available at https://www.timesofisrael.com/gaza-aidtrucks-stolen-by-gunmen-and-looted-as-convoys-startcrossing-from-israel/; see also G. Pacchiani, “Video Shows Gunmen Stealing from Aid Trucks Shooting at Gaza Civilians,” TIMES OF ISRAEL (Dec. 5, 2023), available at https://www.timesofisrael.com/liveblog_ entry/video-shows-gunmen-stealing-from-aid-trucksshooting-at-gaza-civilians/
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