Daniel Markind

What is a ‘Proportionate’ Response?

Commentators and diplomats have exhausted themselves recently in discussing whether or not Israel’s actions in Gaza following the October 7 mass murder by Hamas constitute a “proportionate” response. On October 29, Norway’s Prime Minister Jonas Gahr Store declared that Israel’s offensive was excessive and not proportionate. Israel, of course, rejects that characterization.

What exactly is a “proportionate” response? Some Israel supporters claim that in order to be entirely proportionate Israel must rape the same number of women that the Palestinians did, kill the same number, mutilate the same number etc. That concept seems foolish. Two situations are never identical, so keeping a “body count” of rapes and murders is nonsensical.

In Prashat Mishpatim we read about the concept of an “eye for an eye.” Throughout the centuries however it has been understood that this statement is not literal but figurative. The underlying concept is that the punishment should fit the crime.  With that as our guide, what would be a “proportionate” response to October 7?

I submit that to understand properly the concept of “proportionality,” there are two elements that must be considered, punishment and deterrence. The perpetrators must be punished for their deeds, but in addition the actions taken in response must be sufficient to deter anyone seeking to engage in similar conduct in the future from doing so. This can be described rather simply:

“A ‘proportionate’ response would be a response that constitutes the minimum amount of force necessary to both punish the perpetrators and to deter such conduct from occurring again.”

Applying this to Gaza, Israel must do all it can to bring the perpetrators to justice.  This includes both Hamas terrorists and non-affiliated Gazans who saw what was happening and wanted to get in on the fun of raping Israeli women and mutilating children. As Hamas will not allow that peacefully, Israel has no choice but to do it militarily.

This leads to the next question, which is how to do this in a densely populated Gaza where Hamas has built hundreds of miles of subterranean tunnels to be used for military purposes? Unfortunately there is no antiseptic answer here. Israel not only has the right but indeed the obligation to destroy the Hamas terrorist infrastructure. Hamas has integrated itself into the geography and fiber of Gazan society. If destroying the Hamas infrastructure results in mass destruction to Gaza, including property destruction reminiscent of World War II and tens of thousands of civilian deaths, is that permissible?

Sadly the answer is yes, with the extreme caveat that under no circumstances are civilians allowed to be specifically targeted as Hamas did on October 7. To not do so, to permit the criminals to escape consequences just because they hide within a civilian population, would be to make a farce out of any concept of international law.

No society will allow over a thousand of its people to be executed and hundreds kidnapped and taken hostage without retaliation because the criminals are hiding in a civilian area. While this puts extreme pressure on the Gazan civilians to resist the terrorists (or else risk the brunt of military incursion by the victims of the terrorists’ crimes), given the choice of who should bear this burden, the civilian Gaza population or the people who were the targets of the terrorists, that burden must fall on the civilians hosting the terrorists.

With regard to Gaza, there is the added element that nothing Israel has done, be it withdrawing completely in 2005 or acting militarily other times, has brought Hamas any closer to even thinking about peace. Indeed these actions appear to have had just the opposite affect. Again sadly, there seems no other option other than to destroy, as best as possible, the entire terrorist infrastructure within Gaza. That this will mean enormous loss of life among the civilian population and massive property destruction is awful, yet unavoidable. Hamas has shown it either will kill Israelis or be killed itself among the Palestinians. Faced with such a choice, the increased risk must lie with the civilians of Gaza as opposed to Israeli soldiers.

There are no positives to come out of this situation. 1,400 Israelis are dead, as well as 8,000 Palestinians. As the fighting continues expect those numbers to rise significantly. If the Palestinians were willing to allow this conduct in their name knowing that it will bring war upon them, then the only response can be to give them that war at a cost so terrible it will be generations before they try it again.  Such is the law of the jungle. Following October 7, such is what constitutes a “proportionate” response to the worst Pogrom since the Holocaust.

About the Author
Daniel B, Markind is an attorney based in Philadelphia specializing in real estate, commercial, energy and aviation law. He is the former Chair of the National Legal Committee of the Jewish National Fund of America as well as being a former member of the National Executive Board and the National Chair of the JNF National Future Leadership. He writes frequently on Middle Eastern and energy issues. Mr. Markind lives in the Philadelphia area with his wife and children.
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