IRONICALLY, THE MORAL CASE WOULD BE STRONGER IF ISRAEL RECOGNIZED THEIR NATION:

One issue of critical importance here is that of proportionality, a concept that is very often misunderstood and misconstrued in a simplistic manner by looking at Israeli casualties and damage to civilian infrastructure, and comparing them to those of the Palestinians.

Under the laws of armed conflict, an attack is considered disproportionate, and therefore illegal, "if the anticipated collateral damage to civilians and civilian objects would be excessive in relation to the military advantage expected from the attack," says Sharvit Baruch, who now works as a researcher at the Institute for National Security Studies at Tel Aviv University.

This means that if an attack would provide the IDF with a significant military advantage, such as taking out a Hamas commander, a key weapons facility, or similar, it could be legal even if it were deemed likely to cause civilian casualties, even heavy ones.

Every individual attack has to be proportionate in this manner in order to be legal.

That said, the circumstances of a given war and the nature of the enemy has a bearing on how the concept of "military advantage" is determined, says Sharvit Baruch.

In the wake of its terror onslaught and the atrocities it committed on October 7, Hamas can justifiably be considered to be more dangerous and ruthless in terms of its paramilitary capabilities and its willingness to harm Israeli civilians and commit war crimes than it was previously thought to be.

In such a light, the military advantage of killing a Hamas operative, destroying a command and control center, or attacking other targets can be given greater weight in the proportionality equation, meaning that the legally tolerable level of harm to civilians is also higher, says Sharvit Baruch.

"In my view, even if many civilians are killed, even in an excessive manner, it is not necessarily illegal, even if it is unfortunate," she said.

Dr. Aurel Sari, an associate professor of Public International Law at the University of Exeter in the UK, points out another crucial point, that proportionality cannot be assessed on the basis of hindsight, but must be assessed on the basis of information that was available to the military commander at the time of the attack and prior to it.

"If it turns out that your information was wrong, that a weapon malfunctioned, or other unforeseen circumstances occurred that led to higher civilian casualties than originally anticipated, that is not a violation of the law," said Sari, who also lectures and consults on international conflict law for NATO and the US and British militaries.

He said that in general terms, "The IDF is a professional force that adheres to the law of armed conflict," and pointed to the quality legal advice it receives through the MAG Corps to help it comply with such laws.

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