My colleague Amos Guiora has an interesting op-ed on the situation in Gaza, focusing on the question of how the concept of proportionality should apply in a situation where the combatants (Hamas and Israel) have disproportionate power. Here is the core of the argument:
Israel and Hamas have disproportionate weapons available to them. The IDF has planes, helicopters, tanks, artillery and patrol boats. Hamas has Kassam and Grade missiles. What needs to be asked as a matter of international law is whether the available, disproportionate weapons are used proportionally. With regard to the current situation in Gaza, proportionality must be viewed from two perspectives: the threat posed and how is that threat posed.
The threat posed is to a million innocent Israeli civilians – Jews and Arabs – living within a 40 km (25 mile) radius of the Gaza Strip. The threat is actual and has been realized. There have been fatalities, injuries, damage to property and general disruption of daily life within Israel. How this has occurred is critical in understanding Operation Cast Lead in the context of collateral damage. It has occurred because of a broadly-based Hamas infrastructure.
In declaring war on Hamas, Israel has deliberately left undefined the degree to which an individual must be affiliated with Hamas in order to be categorized as a legitimate target. The consistent and constant bombing of southern Israel over a number of years required a broadly based and highly developed infrastructure. Such an infrastructure enabled the digging of many tunnels, the building of weapons and their storage and the firing of thousands of missiles. In contrast to the traditional model associated with the suicide bombing infrastructure predicated on the individual bomber, the planner, the driver and the financier, the Hamas rocket firing infrastructure is inherently broader.
By expanding the definition of