Hamas supporters have invoked many canards to fuel virulent hatred of the Jewish people.
One of them is based on the laws of war known as "proportionality," which they have thoroughly misstated to serve their insidious agenda.
It is critical to distinguish the legal term from the generic usage.
Proportionality in war does not mean tit for tat.
It's distressing to hear ridiculous references to the term by media personalities and politicos, who seem to believe it is conceptually analogous to the proportions of ingredients in a cocktail recipe.
They just have no idea what the legal term means.
This writer can’t help but wonder why they don’t interview an experienced JAG lawyer, instead of pestering their unknowing guests.
Here are some basics.
War is legally permitted as a response to aggression or in self-defense.
Thus, Israel is legally justified in declaring it’s at war with Hamas in response to Hamas’ murderous aggression, including committing unspeakable atrocities, and in seeking to prevent any possibility of a reoccurrence of Hamas’ aggression.
No one can legitimately argue that Israel is prosecuting anything other than a just war against the evil aggressor Hamas.
The principle of proportionality under the laws of war is merely a tool for weighing the cost of a particular military action against a specific military target, in terms of the number of incidental civilian casualties and damage that might be expected, in relation to the concrete and direct military advantage expected to be gained.
Thus, the greater the expected gain from the particular military action, the greater the tolerance for collateral damage.
If the military gain is slight then the tolerable proportion of civilian casualties would correspondingly be less.
Consider then the outsized benefit to be gained from a military operation directed at saving innocent hostages.
It’s suggested it would far out-weigh most concerns about collateral damage. Similarly, imagine, if the entire senior leadership of Hamas was meeting in a location and a decisive military victory could be achieved by wiping them out in one fell swoop.
Hamas’ use of involuntary human shields is a war crime.
However, that does not negate the possibility of military action against Hamas, because otherwise it would perversely encourage them to use of human shields.
Feasible and practical precautions are required to limit civilian casualties, taking into consideration all circumstances, including the risk of harm to friendly combatants.
It should also be noted that many experts consider civilians who freely choose to be human shields, to dissuade attacks on military targets, to be directly participating in the hostilities and therefore forfeit any protection under the proportionality rule.
Here’s an excerpt from US Dept of Defense, Law of War Manual (§5.12.3.4) on the subject of human shields:
"The party that employs human shields in an attempt to shield military objectives from attack assumes responsibility for their injury . . .
"However, the enemy use of voluntary human shields may be considered as a factor in assessing the legality of an attack.
"Based on the facts and circumstances of a particular case, the commander may determine that persons characterized as voluntary human shields are taking a direct part in hostilities."
No decent person can be for evil Hamas or justify its despicable atrocities.
It's a true moral test of our times. Hamas is also a U.S. designated Foreign Terrorist Organization (FTO). 18 USC 2339 prohibits providing material support or resources, including services to an FTO like Hamas.
This would include advocacy performed in coordination with or at the direction of the FTO or even an attempt to do so.
Money is fungible and so raising money for or making contributions to a charitable arm of an FTO may also be prohibited.
I also can’t help but wonder about all the interlocking relationships among employees and representatives of FTO’s and affiliates, as well as activists and employees in the myriad of lobbying, service providers, advisors and actual staffs of politicos and their campaigns.
The calculated use of incendiary rhetoric peppered with inapplicable legal terms like proportionality is intended to trigger an emotional response not a reasoned one.
Similarly, the contrived misuse of explosive words like apartheid and genocide that have legal import unrelated to Israel and its conduct of the defensive war with Hamas.
Mindlessly chanting these despicable libels of Israel is particularly odious, especially given that actual miraculous survivors of the Nazi genocidal final solution in the Holocaust were murdered or kidnapped by Hamas. We pray Israel is successful in eliminating the evil that is Hamas and bringing the hostages home.
Leonard Grunstein, a retired attorney and banker, founded and served as Chairman of Metropolitan National Bank and then Israel Discount Bank of NY. He also founded Project Ezrah and serves on the Board of Revel at Yeshiva University and the AIPAC National Council. He has published articles in the Banking Law Journal, Real Estate Finance Journal, and other publications. To read more of his reports — Click Here Now.
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