In addition to the missiles and the ground mission, Supernova Music Festival near Re’im secular kibbutz was attacked.5 In this massacre, at least 260 people were killed, and many others abducted.6 Israel, on the other hand, reacted almost immediately with air strikes. On the next day, they formally declared a state of war and emphasized their intent to end Hamas’ leadership over the Gaza Strip and eradicate their military potential.7

Since then, both parties have continued to launch different sorts of attacks from or into the Gaza Strip, including air strikes and fights on the ground. The situation is especially sensible since Gaza is dependent on Israel for the supply of electricity, fuel, and food.8 Two days after Hamas launched the initial attacks in Israel, Yoav Gallant, Defense Minister of Israel, announced a complete blockade of the Gaza Strip, explaining: “We are fighting human animals and we are acting accordingly.”9

III. Right to Self-Defense

A. What Constitutes Self-Defense

1. Self-Defense in International Law

Self-defense in international law is recognized in various treaties. It has its origins in the U.N. Charter, Article 51. Self-defense is one of the exceptions to the prohibition of the use of armed force, recognized by the U.N. Charter.10 Chapter VII of the U.N. Charter provides a comprehensive list of the exceptions to that Article:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.11

Self-defense is also mentioned in the Rome Statute:

1. In addition to other grounds for excluding criminal responsibility provided for in this Statute, a person shall not be criminally responsible if, at the time of that person’s conduct:

(c) The person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission, against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property protected. The fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility under this subparagraph.12

Although the wording, as well as the focus (state responsibility against individual criminal accountability), is different, the Rome Statute does not aim to overrule the U.N. Charter.13 Moreover, the text in the Rome Statute is a tailored application of the principle of self-defense on individual liability and still works with the framework set forth by the U.N. Charter.14

Whereas the Rome Statute mentions proportionality as a measurement for limiting the right to self-defense, the U.N. Charter uses necessity as a threshold to outweigh the competing interests.15 These are two of the four basic principles in international law to minimize the impact of war on civilians and non-combatants.16 Remaining are “humanity,” which urges the actors to limit the war’s impact on human security and health, and distinction, which describes the obligation to differentiate between civilians and civilian objects on the one side, and combatants and military objects on the other side.17 These principles emerged out of the jus in bello, the international law about the conduct in war.18 It describes the threshold of whether war crimes are committed.19 Especially in the case of Israel, it is important to notice that meeting the requirements of the counterpart of jus in bello, jus ad bellum, which means the legality of going to war, does not justify any following war conduct.

More concrete: assuming international law ensures Israel a right to self-defense, which the analysis will focus on later, does not mean that how Israel uses the right to self-defense is justified in itself. A careful distinction between these two principles is needed to determine, first of all, whether Israel has a right to self-defense (jus ad bellum), and secondly, whether they used that right according to the principle of proportionality (jus in bello). Consequently, self-defense appears in both scenarios, in the law of going to war and in the law about the conduct in war.20

The U.N. Charter provides four elements that constitute self-defense.21 Firstly, all states have an inherent right to self-defense.22 Secondly, this right can be exercised either individually or collectively.23 Thirdly, self-defense is triggered by an armed attack (substantial force required).24 Lastly, self-defense has a timely component.25 Force can only be used until the Security Council intervenes.26 Although the four elements can be understood as a definition of self-defense, the complexity of situations in which self-defense might be required led to a more flexible handling of this right.

Under the Rome Statute, self-defense is addressed primarily in the context of war crimes. As the headline of Article 31 suggests, it excludes criminal liability. This means that even if a person fulfills all the required elements of Article 8—War Crimes, they are not liable to prosecution if the requirements for self-defense are met.

The idea behind self-defense eradicating criminal liability lies in the concept of the right to protect another right that was threatened.27 The right derived from the individual’s “right to life,” which is prominently ensured in Article 6 of the International Covenant on Civil and Political Rights.28 It is based on a principle state’s duty to protect its citizens and uphold their rights.29 The right to self-defense applies in urgent situations, where state assistance would come too late.30 Here, victims get a power that is usually reserved to a state to protect themselves.31 However, Israel is not an individual defending itself against attacks, but an entire state. The principles must therefore be adapted to the extent that a state may defend itself against attacks until the S.C. intervenes.32

2. Self-Defense Applied in the Case of Israel

To claim self-defense, the Rome Statute requires three components to be fulfilled.33 The person’s action

1. must be reasonable,

2. directed to fight an imminent and unlawful use of force, and lastly,

3. in a proportionate manner measured against the degree of danger for the person.34

The attacks of Hamas on October 7 can’t be justified by any law in the Rome Statute and therefore are an imminent and unlawful use of force.35 One might argue that Hamas was fighting genocide or apartheid, but even in this case, the willful killing of countless civilians would not be lawful under international law. As a result, the second requirement of self-defense is fulfilled.

Whether a reaction is reasonable depends on the individual circumstances. The accused must have held a reasonable belief that establishing force and consequently committing a criminal act was necessary for either themselves or another individual.36 This requirement particularly goes to the need for a “real threat” at the moment of the reaction.37

With the killings of over thousand civilians and the hostages, Hamas imposed a real threat on Israel and urged the government to react to sufficiently protect their citizens.38 Although the plain meaning of “reasonable” also addresses the scope of the reaction, this requirement only directs to the question of whether or not to react, not the lawfulness of the actual conduct during the reaction. The latter is the subject of the third component of self-defense under Article 31(1)(c). Whereas there is only little discussion about Israel complying with the reasonableness and the reaction to an imminent danger, the proportionality of Israel’s answer to the Hamas attacks is highly contested. In contrast to the other components, it is almost impossible to develop an objective threshold in a manner proportionate to the degree of danger.

Before we turn to a deeper analysis of proportionality, the state of debate on the question of whether Israel has a right to self-defense at all will be briefly outlined.

B. Does Israel have a Right to Self-Defense Against Hamas?

With the matter of scope and especially the understanding of proportionality in Israel’s response to the just briefly described Hamas attacks, the question of the right to self-defense against Hamas/Palestine arises. The underlying issue is the—highly contested—claim, that Israel has no right to self-defense against a non-state actor,39 or optionally, against armed groups emerging from occupied territory.40

The conflict is not only of academic dimension, but members of the S.C. are also divided in that regard.41 Countries like France and the United Kingdom strongly affirm the right to self-defense for Israel, while in contrast, Brazil rejects such a right against a non-state actor.42 With the argument that Gaza remains under Israeli occupation, countries like Jordan and Pakistan deny the right to self-defense against armed groups emerging from occupied territory.43 This is not a new debate. On February 24, 2021, the S.C. discussed the permission for the use of armed force by one state against another, although the issue was slightly different.44 Just one day later, the United States carried out airstrikes in Syria, targeting multiple small facilities utilized by Iraqi militias (allegedly not controlled by Syria and therefore “non-state actors”).45 Especially noticeable was that the U.S. launched an airstrike against a non-state actor on the territory of another State without the consent of the latter.46

Probably the gravest argument against a military reaction against a non-state actor on the territory of a non-consenting state is the sovereignty of the latter. But this does not apply in the case of Gaza, because the Gaza Strip does not have a state authority which sovereignty could be undermined.47 In addition, the case of the U.S. launching an airstrike in Syria is also not comparable in the sense that the U.S. never claimed to defend an imminent armed attack.48 In this regard, some countries agree that the excuse of self-defense needs an armed attack that is not over.49

The first opinion as argued by France and the United Kingdom, is supported by the wording of U.N. Charter, Article 51. Here it explicitly only states that self-defense is justified “if an armed attack occurs“—not “an armed attack by a State.”50 Nevertheless, some states argue that the words “by a state” should be read into U.N. Charter, Article 51.51

The argument is supported by other articles in the U.N. Charter where additional words must be read in to understand the exact meaning, for example, Article 2(4). Here it says that “the use of force” is prohibited instead of claiming the prohibition of “armed force.”52 But although the word is not explicitly mentioned, it is clear that the Provision is reduced to armed force.53 This is supported as well by the changing use of either “force” or “armed force” in Arts. 41, 44, and 46 of the U.N. Charter54 Scholars now argue that this is the same for Article 51 and the issue of an armed attack.55 In that regard, arguments are made that are based on the understanding of “international security” and the purpose of Article 1(1) of the Charter, but most importantly, they refer to the first draft of a prevention regarding self-defense, presented by the United States.56 Here it says:

Should the Security Council not succeed in preventing aggression, and should aggression occur by any state against any member state , such member state possesses the inherent right to take necessary measures for self-defense. The right to take such measures for self-defense against armed attack shall also apply to understandings or arrangements like those embodied in the Act of Chapultepec, under which all members of a group of states agree to consider an attack against any one of them as an attack against all of them.57 (emphasis added).

People now hold that “armed attack” is a subcategory of “aggression […] by a state,” which is why an armed attack can necessarily only be committed by a State actor.58

Two things can be said in response. Firstly, one could argue that there is a purpose behind the fact that in the end, the phrasing “by a State” did not make it into the final draft of U.N. Charter, Article 51. This purpose might be that the U.N. wanted a broader approach to self-defense and therefore intentionally deleted the state-requirement. Second, other than for example in Article 2(4), the implicit meaning of the text is not as compelling. Given the fact that non-governmental actors started serious wars in the past decades (see for example Libya, Sudan, Syria, and Gaza), Article 51 makes sense without the addition of the state actor. In contrast, Article 2(4) most certainly refers to armed attacks.

Without resolving the discussion but with due depth for this comment, it should be assumed that Israel has a right of self-defense emerging out of Article 51 of the U.N. Charter against Hamas. At the same time, this conclusion raises a follow-up-question: How is this relevant for individual criminal liability under the Rome Statute? As far as can be seen, there is no clear answer. When someone acts as the head of a state, their responsibility is measured under both treaties. It would lead to absurd results if the same act of self-defense would satisfy Article 31(1)(c) of the Rome Statute on the one hand but violate Article 51 of the U.N. Charter on the other hand. Therefore, the question of whether Israel can comply with the U.N. Charter at all is also influential for individual criminal responsibility of persons acting in their official capacity.

IV. Proportionality in International Law

With the preceding analysis showing—and to some extent assuming for the purposes of the comment—that Israelian leaders complied with the first two requirements of self-defense under the Rome Statute, the question remains whether they also met the threshold of proportionality.

A. Origin of Proportionality

Proportionality is a core principle in many legal systems.59 In domestic legal systems, it often appears as a balancing test, or even broader, as a measure to ensure the rule of law.60 For example, the due process clause in United States constitutional law can be understood as an expression of proportionality.61 Proportionality can appear either in constitutional or in criminal law as well as in domestic or international systems.62 Because of its high generality, the concept is relatively fluid and applicable to several scenarios.63

In International Law, proportionality emerged out of customary law, mostly of opinio juris and State practice.64 With the First Additional Protocol to the Geneva Conventions (GC) of 1949, it found its way into written law.65 In the GC, proportionality is not only addressed in the light of criminal law and self-defense, but in its whole breath.66 The GC is a great example of the different types in which proportionality appears.67

Proportionality exists in the shape of proportionality of means to ends.68 This kind of proportionality is closely linked to (military) necessity and speaks to the appropriateness of means to achieve legitimate ends.69 It necessitates a connection between the methods used and the desired goals, without the need for an additional comparison of conflicting interests.70 Proportionality can also appear as a balancing of interests.71 Here, proportionality seeks the resolution of a conflict between two values.72 It requires the exact determination of the conflicting rights or interests.73 In terms of international conflicts, this rule prescribes that the expected collateral damage should not be excessive in comparison to the anticipated military benefit.74 It sets the potential incidental harm against the projected military advantage.75

Remaining, but less relevant for self-defense, are proportionality aspects in terms of finding an appropriate punishment76 and the “mathematical proportionality.”77

B. Proportionality in the Rome Statute

Without explicitly framing it, the Rome Statute not only addresses proportionality in Article 31(1)(c) but establishes in Article 8(2)(b)(iv) what can be considered a negative definition of proportionality as it is widely understood.78 Here it says:

Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.79

By delineating what constitutes disproportionate behavior in an armed conflict, it also provides an understanding of how proportionality might be assessed. As can be read from the formulation “in relation to the concrete and direct overall military advantage anticipated,” the Rome Statute addresses the first of the four variants, the “means to an end”-proportionality. The damage and harm caused by an attack must be justified by the military advantage (or the other way around, to establish criminal liability). The understanding of proportionality the Rome Statute uses is therefore closely linked to military necessity and with that, to Article 51 of the U.N. Charter.

The wording “incidental loss of life or injury to civilians,” “excessive in relation to” and “military advantage” used by the Rome Statute is the precise adoption of what was previously understood as proportionality in customary law and also domestic legal systems.80 It copies the language set forth by the Additional Protocol I almost identically, where it says:

An attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.81

With this approach, the Rome Statute not only complies with the broadly accepted idea of proportionality, but it also gives a hint for the proportionality analysis.82 By speaking of an attack that needs to be “clearly excessive” to constitute a crime under Article 8 of the Rome Statute, one could conclude that the ICC gives military advantage a wide margin of maneuver.83

C. Elements of Proportionality

Because proportionality is such a broad and flexible concept, adaptable for almost every situation in a legal context, there has been a lot of work to describe the core of the proportionality principle. As a result, one must accept that a clear and abstract definition is almost impossible, rather, competing factors and the relationship of the values in question must be included.84

In any case, there is agreement that proportionality is made up of various factors, legitimacy, adequacy/suitability, necessity, and proportionality stricto sensu balancing.85 This is not only true for proportionality as an element of self-defense, but probably even more significant, for the question of whether a certain law is proportionate.86

In criminal law and with the question of self-defense, the analysis usually focuses on the fourth element, proportionality stricto sensu.87 But for a more comprehensive analysis, the remaining three factors should also be taken into account. They can either rule out defensive force before even getting to the balancing or provide an alternative, less intrusive way of self-defense and therefore speak to the requirement of the “excessive use” of force.

1. Legitimacy/Legitimate Aims

The requirement of legitimacy or legitimate aims refers to a state of mind.88 The pure definition of the word means “the quality of being reasonable and acceptable.”89 This is exactly what this characteristic of proportionality requires of the objective set—it must be reasonable and acceptable. This implies, of course, a highly moral approach.90 Who decides whether something is “acceptable”?

Two approaches are possible: first, one could develop a list of certain legitimate aims, especially concerning self-defense. Such a list can be found in the European Convention on Human Rights (ECHR). Thus, some rights can only be restricted on the basis of legitimate aims, which are specified as follows:91 interests of national security, territorial integrity, public safety, the economic well-being of the country, the prevention of disorder or crime, the protection of health or morals, and the protection of the rights and freedoms of others (among others).92

The difficulty with this approach is that all of these rights themselves are broad, which in turn requires concretization. This can be provided by the following elements of proportionality so that the breadth is not necessarily problematic. Additionally, legitimacy functions more as a gateway for the analysis of proportionality and serves above all to exclude cases from the outset that cannot meet the requirements from any point of view. Outside of a war context, this could be for example goals connected with the disapproval of homosexuality.93 In the context of war, aims just intended to destroy civil residences without any military target could never be a legitimate goal.

Another approach to narrowing the rights is the inclusion of competing interests. In this regard, an aim can only be legitimate as long as it is not completely implausible that it justifies the interference with the other value.94 In the context of war crimes, the legitimate end almost always will be national security, public safety, and the inevitable (albeit highly desirable) military advantage in this regard.

2. Adequacy/Suitability

Adequacy, or suitability, is the first step in narrowing the legitimate aim. It requires at least a small connection between the goal and the means used for accomplishing it.95 Or, to put it in easier words: are the means suitable in any way to reach the legitimate aim?

As the wording suggests, this is still a very broad element that offers a great deal of scope. One of the reasons is the inherent degree of uncertainty that a measure will contribute to achieving a certain aim.96 The goal of this element is to establish a collision of two values and at the same time, rule cases out where no conflict exists at all.97

3. Necessity

Necessity as well as the following proportionality stricto sensu is the core of the proportionality analysis and therefore the part where most of the cases are sorted out. In the European Court of Human Rights, necessity is defined as a case where there is no possibility of recourse to an alternative measure which would cause less damage to the fundamental right in issue while fulfilling the same aim.98 Even if the choice of words may differ in places, ultimately necessity describes the choice of the least intrusive—but equally effective—means.99

This understanding of necessity might be confusing because it significantly defers from the (military) necessity, which also influences self-defense and proportionality. This kind of necessity speaks to the resort to force, rather than to non-forcible measures,100 and military necessity especially is used to justify violence or destruction in an armed conflict.101

To evaluate the type of necessity that is part of the four-step analysis of proportionality, one must carefully weigh out other options that might be less intrusive. Only if these steps are not as effective as the one taken, necessity can be established. For example: it is possible that the ICC finds the killing of a superior commander a legitimate goal and an airstrike targeting a civilian residence to be an appropriate means. Still, it would be possible that the Court finds that a ground offense precisely directed at the house where the superior commander is staying to be as effective and at the same time, less intrusive because of the lower risk of civilian deaths. In this case, the airstrike would be considered a disproportionate attack and the commander who ordered the attack could not rely on Article 31(1)(c) of the Rome Statute.

4. Proportionality Stricto Sensu Balancing

The last part of the analysis is the balancing, the so-called “proportionality stricto sensu.” In plain translation, it means proportionality in a narrower sense. Here, all the facts of the case come into play in the shape of a cost-benefit analysis.102 The goal is to strike a balance between competing interests and values.103 For the defending side, one would consider the legitimate aim to be accomplished, considering its significance and immediacy, the potential advantages, and the probability of attaining those benefits.104 At this final stage, the question remains which of the values holds precedence in the specific circumstances of the case,105 or, to apply it to the question of self-defense: whether the interference with the rights of the other party is justified by one’s own (imminent) infringement of rights.

Here is where most of the critique comes from.106 Again, there is just no plain definition for the concept behind “balancing” as well as there is no general threshold or scale where clear outcomes of balancing are determined. In the context of war crimes, it is extremely important to stress that balancing does not work as a balancing of interest in an almost mathematical way.107 For example, one life cannot be weighed against another, and three lives do not weigh more than one.108 Just because Hamas attacks (or is about to attack) a civilian residence with twenty civilians in it does not mean the IDF is allowed to launch an airstrike against a Hamas base where supposedly ten civilians live. In this case, the Court has to weigh the legitimate end (the benefit for national security and public safety together with the military advantages) against the presumed harm for the ones affected by the means (the death of ten civilians).109

It is important to remember that the question of proportionality only arises if an attack is lawful, i. e., directed against a military/dual-use target.110 Nonetheless and especially for dual-use targets, foreseeable second—and third-order effects of an attack must also be considered.111 This will become critically relevant for evaluating the criminal responsibility of Israel’s military leaders.

5. Section Summary

These four factors provide a basis to analyze Israel’s military actions, directed as self-defense against the Hamas attacks. To summarize the major findings of the previous analysis: there is no threshold or mathematical balancing for “excessiveness.” Generally, targets with a comparatively high military value (high-value targets) will justify greater incidental harm than targets with a comparatively low military value (low-value targets).112 Only lawful targets can trigger the question of proportionality. Legitimate aim, adequacy, and necessity, although not by definition part of the proportionality assessment in international criminal law, can be helpful factors to either rule certain attacks out upfront or establish a basis of arguments for the balancing.

V. Reaction of Israel

With the legal foundation of self-defense and proportionality, we now turn to the concrete reaction of Israel to the attacks on October 7, 2023. Overall, there are three main strategies that Israel chose for reacting to Hamas. These are aerial bombardments, a ground invasion beginning on October 28, and the blockade of water, fuel, electricity, and supplies.113 It would now be possible and quite interesting to examine each of these acts of defense individually and examine their legality in order to then draw up an overall picture and give an assessment of whether and to what extent decision-makers in Israel have observed the limits of proportionality. For reasons of space, however, the examination will be confined to Israel’s legitimate aims and a more detailed analysis on necessity and proportionality stricto sensu. This will be examined in particular using the example of the Jabalia airstrike.

A. Legitimate Military Target

As analyzed above, to refer to proportional self-defense, one needs to establish a legitimate aim. But even before that, the question of proportionality is only triggered if the self-defense in question is directed against a legitimate military target. The GC defines this as follows:

In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.114

Conversely, this means that civilian objects can also be legitimate targets, provided they can also be of considerable military benefit.115 This regularly applies to objects such as means of communication, command, and control—railway lines, roads, bridges, tunnels, and canals.116

It gets more complicated if buildings are both occupied by civilians and military leaders (so-called dual-use). This is exactly what happened in the current situation, when the IDF destroyed a twelve-story building on 15 May, in which, according to the IDF, “military assets of the Hamas terror organization” were located, as well as news offices and civilian apartments.117 This triggered a major debate about the extent to which buildings that are used both as residential buildings (possibly with the purpose of human shielding) and for military purposes can be the target of an attack.118 In any case, for the purpose of examining an act of self-defense, it is useful to understand “legitimate military target” broadly and to recognize dual-use objects as such, in view of the following elements that further restrict legality. Therefore, as long as an object is not exclusively or predominantly dedicated to civilian purposes, it should be understood as a legitimate objective.

B. Legitimate Aim

Much like the authorized military target, the legitimate objective ought to be comprehended in a reasonably expansive manner. As mentioned above, Israel’s main objective is to ensure national security and public safety. Both are significantly endangered or even impaired by the Hamas attacks.

In addition, Israel clearly states the destruction of Hamas as the goal of the attacks.119 This leads to the question of whether the communication of such an aim can be understood as the plain intention of “winning the war,” which would not meet the requirements of a legitimate purpose.120 In view of the fact that the threat to Israel’s national security emanates directly from Hamas, the (primary) goal of winning the war cannot be inferred from this announcement. Rather, it seems legitimate to want to eliminate a group that is responsible for the danger that justifies self-defense in the first place. With this approach, it is entirely consistent to assert that Israel has a lawful entitlement to seek the complete elimination of Hamas.121

Alternatively, one could argue that the complete eradication of Hamas is not a justifiable defensive objective. According to this perspective, states are legally entitled only to stop and repel a present attack or, perhaps, to prevent an imminent one.122 This may be laudable and morally correct approach in theory, but it fails to recognize that in this way countries such as Israel or Syria (with ISIS) are completely exposed to terrorist groups. It also contradicts the principle that “right must not give way to wrong.”

In conclusion, with its military actions, Israel pursues a legitimate aim.

C. Adequacy and Necessity

The questions regarding adequacy and necessity require both a deeper understanding of military maneuvers and a correspondingly in-depth examination of the prospects of success and, if necessary, equally successful alternative maneuvers. This cannot be achieved in this comment. Up to this point, however, it should be noted that the defensive measures chosen by Israel do not appear to be completely futile and have already achieved some success,123 although other voices suggest the opposite.124

D. Proportionality Stricto Sensu

Assuming that Israeli officials met the requirements of the previous elements of proportionality, we now turn to the core of the proportionality question—whether the launched attacks were proportionate in a narrower sense.

In the context of war crimes, this question breaks down to the balancing of the expected military advantage and the estimated civilian harm.125 This is also called Collateral Damage Estimate (CDE)126 and can be pictured as such:

x expected civilian harm ≤ concrete & direct military advantage anticipated.127

Despite many attempts to fill the “equation” with content and clues, it is repeatedly faced with similar difficulties. These are aptly summarized in the Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign in Kosovo:

It is unlikely that a human rights lawyer and an experienced combat commander would assign the same relative values to military advantage and to injury to noncombatants. Further, it is unlikely that military commanders with different doctrinal backgrounds and differing degrees of combat experience or national military histories would always agree in close cases. It is suggested that the determination of relative values must be that of the ‘reasonable military commander.’128

Before getting into the proportionality analysis regarding Israel, two points can be stated: First, while a State is permitted to employ force to stop and repel and ongoing armed attack, it is not justified in eliminating the potential for future attacks at a disproportionate cost to civilians.129 Second, every analysis results in the same conclusion: no State is allowed to cause unrestricted harm in pursuit of complete security.130

In order to examine Israeli military actions in greater depth and in the light of proportionality, a specific individual case will now be examined in more detail. This case will serve as an example of the proportionality analysis that Israel’s military leaders would have to carry out in order to uphold the limits of self-defense. Finally, a general evaluation of international voices on the subject of proportionality and Israel will be undertaken.

1. The Jabalia Camp Strike

The Jabalia camp strike was an airstrike carried out by the IDF on October 31, 2023. Although there is some dispute about the exact impacts, several sources claim that the strike destroyed an area of 2,500 square meters and led to 400 casualties with more than 100 deaths, the majority women, and children.131 In an official press release published by IDF, the military advantages are clearly pointed out as follows:

A short while ago, IDF fighter jets, acting on ISA intelligence, killed Ibrahim Biari, the Commander of Hamas’ Central Jabaliya Battalion. Biari was one of the leaders responsible for sending ‘Nukbha’ terrorist operatives to Israel to carry out the murderous terror attack on October 7th. Numerous Hamas terrorists were hit in the strike. […] As a result of the strike, a large number of terrorists who were with Biari were killed. Underground terror infrastructure embedded beneath the buildings, used by the terrorists, also collapsed after the strike.132

The press release implies that the airstrike was not an operational error, but rather carefully planned and executed as such.133 As of today, there is no evidence that the civilian losses are higher than the IDF expected.134 All these factors lead to the question of whether the death of a high Commander and several low-level commanders/combatants together with the destruction of an underground terror structure can outweigh the deaths of approximately 100 civilians and 400 casualties. Or, to say it in the wording of Article 8(2)(b)(iv) of the Rome Statute: whether this number of casualties and deaths can be considered clearly excessive in relation to the concrete and direct overall military advantage anticipated.

i. NCV Method to Weigh Proportionality

Although, as already stated, proportionality is not about simple numbers and mathematical equations, the CDE implies that “x expected civilian harm” should be measured against the military advantage and therefore refers to a certain number of people who are affected by the caused harm. Additionally, the United States and its allies, along with coalition partners involved in the wars in Afghanistan and Iraq, formulated the idea of the non-combatant casualty cut-off value (NCV).135 This essentially assigns an operational value to the parameter “x” for particular attacks or operations, particularly concerning fatalities or severe injuries.136 In this way, military commanders could “objectively quantify proportionality in a potentially chaotic environment.”137 Although this rule was later removed, it was amongst others used for the targeting of Osama Bin Laden.138

As in the case of Ibrahim Biari, the United States military accepted civilian casualties in order to achieve their primary goal, namely the death of Bin Laden. For this reason, it makes sense to compare the two cases and to determine the NCV for a first approximation to proportionality stricto sensu. A statement of a former deputy commander of operations and intelligence for Combined Joint Task Force Operation Inherent Resolve indicates that for someone like Osama Bin Laden, the NCV value could be 30, whereas for a low-level commander it would be zero.139 For an operation against ISIS, an NCV of 14 or 15 would have been considered “high.”140

Taken this measurement, the Jabalia camp strike can hardly be justified.141 Even if one asserts an NCV value of 30 for Ibrahim Biari, which would be the same as for Osama Bin Laden, one could not meet the threshold in the face of more than a hundred deaths in Jabalia. All other killed combatants were, as far as one can conclude from the press release, only combatants without a significant military standing. Adopting the NCV, they cannot equal a single civilian death. Remaining is the destruction of the underground terror network. Due to the lack of information about the relevance of this network for Hamas, it is hard to argue whether this could, by any means, justify 400 casualties. What has to be taken into account as well is, that the United Nations recorded more than 110,000 refugees in Jabalia, covering an area of 1.4 square kilometers, resulting in an exceptionally high population density.142 Despite Israel’s advisories for the Gaza population to relocate southward, a notable portion of the civilian residents in Jabalia chose to stay in their locations on October 31, as confirmed by social media videos posted in the days leading up to the strike.143 These circumstances are critically relevant for the analysis that is not retrospective but from the point of a reasonable military commander in the situation the decision was made.144 Knowing that the population remained dense, a rational commander might have set the NCV even higher.

In conclusion, in the light of the NCV value the military advantage is not sufficient to meet the proportionality stricto sensu threshold.

ii. Comparison to Former Cases Involving Proportionality

Another approach to the balancing is the reference to former international criminal cases.145 The ICC never explicitly dealt with proportionality, but the International Criminal Tribunal for Yugoslavia (ICTY) provides, with the Gotovina and the Galić case, some material. In the Gotovina case,146 the subject of the military operation was, without a doubt, a lawful military target as a commander in chief of the regional Serb forces.147 Nevertheless, the Trial Chamber still concluded that, because at the time of the firing, a reasonable commander would have expected civilians to be present, this risk was “excessive” in relation to the military advantage.148 The Appeals Chamber later criticized the lack of a concrete assessment of comparative military advantage.149

However, these standards applied to the Jabalia camp strike do not lead to the legality of the airstrike, even if the military advantage is specifically discussed. Rather, an Israeli commander could and should have recognized that the risk of civilian casualties due to the dense population was too high.150 This assessment could possibly change with more extensive information about the importance of the underground system for Hamas, but this is unlikely.

Consequently, up to this point, it must be stated that Israel’s airstrike on the Jabalia camp is not within the limits of narrow proportionality.

2. Overall Proportionality

Whether Israel complies with the standards set forth by International Humanitarian Law in its response to the Hamas’ attacks is a highly controversial topic and therefore discussed by scholars all over the world. The tendency seems to be that Israel, if it has a right to self-defense at all,151 is clearly overstretching it.

Some compare the harmful events on October 7 to 9/11 and therefore compare Israel’s reaction to the invasion of the United States in Afghanistan.152 O’Connell states that even if the United States had a right to invade Afghanistan under Article 51 of the U.N. Charter, the invasion did not meet the requirements of proportionality—and the same is allegedly true for Gaza because an invasion was (in both cases) not the last resort.153 This argument goes to the third requirement of proportionality, the question about the least intrusive means (necessity). Although O’Connell admits that—in contrast to Al Qaeda—there is evidence that Hamas is planning more attacks, she still finds that destroying Hamas creates a risk for more militants.154 O’Connell’s article does not make clear why that is.

Others argue that the anticipated forceful reaction from Israel to terrorist violence lacks justification due to the perpetrators’ clear intent to impose suffering on innocent Palestinians—either as a form of collective punishment or in a vengeful manner.155 Tadros’s article proposes that the systemic violation of Palestinian rights by the Israeli government should be taken into account for a proportionality analysis.156 This might be true for state responsibility, but not for individual criminal liability, and is insofar not relevant for the purpose of this comment.

In addition to voices that grant Israel the right to defend itself but call for a significant narrowing of Israel’s legitimate aims and a drastic change in tactics,157 some scholars see the total fight against Hamas as the only effective means and therefore grant Israel the widest possible scope in exercising its right to self-defense.158 The truth, and therefore the lawful path, probably lies—as is so often the case—in the middle.

VI. Conclusion

After this discussion, the question remains as to what Israel should do now and how Israel should otherwise respond to the Hamas attacks instead. The solution should not be to react exclusively defensively and only to minimize the impact of Hamas’ attacks. On the other side, Israel should refrain from military strikes that cause severe civilian harm without gaining a military advantage. Even the United States, usually a supporter of Israel, criticized Israel’s military by asking for an explanation of the first attack on Jabalia and urging Israel to avoid harming civilians.159

At the same time it is also true that a lot of scholars in the area of International Humanitarian Law primarily focus on the harms Israel causes to the Palestinians rather than taking into account that, at the same time, Hamas committed atrocities, and vows to continue to do so, against Israeli citizens.160 The ambivalences in the discussion are highlighted in Shereshevsky’s article that calls for a deeper look at the situation, an understanding of the nuances, and, above all, a focus on the victims on all sides.161 This is also true for the question of proportionality. One cannot simply frame an attack as unlawful and disproportionate without recognizing the victims of the other side at the same time.

There is still no clear threshold for the question of proportionality. However, with a clearly defined legitimate aim, an analysis of suitability and necessity, and a weighing of all interests in question within the framework of proportionality in the narrow sense, as well as the inclusion of previous decisions, proportionality can at least be outlined within its rough limits.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Seth J. Frantzman, Hamas Terror Commander Deif Calls for All Out War on Israel, The Jerusalem Post, Oct. 7, 2023, available online. ↩

2. 2.

   Id. ↩

3. 3.

   Bill Hutchinson, Israel–Hamas War: Timeline and Key Developments, ABC News, Nov. 22, 2023, available online. ↩

4. 4.

   Ephrat Linvi & Gaya Gupta, What We Know About the War Between Israel and Hamas, N.Y. Times, Nov. 20, 2023, available online; Abedelali Ragad, Richard Irvone-Brown, Benedict Garman & Sean Seddon, How Hamas Built a Force to Attack Israel on 7 October, BBC News, Nov. 27, 2023, available online. ↩

5. 5.

   Emmanuelle Saliba & Helena Skinner, Timeline: How a Night of Dancing Turned Into the Worst Civilian Massacre in Israel’s History, ABC News, Oct. 12, 2023, available online. ↩

6. 6.

   Id. ↩

7. 7.

   Hadas Gold, Shirin Faqiri, Helen Regan, Jessie Yeung & Caitlin Hu, Israel Formally Declares War Against Hamas as It Battles to Push Militants Off Its Soil, CNN, Oct. 8, 2023, available online. ↩

8. 8.

   Id. ↩

9. 9.

   Emanuel Fabian, Defense Minister Announces “Complete Siege” of Gaza: No Power, Food or Fuel, Times of Israel, Oct. 9, 2023, available online. ↩

10. 10.

    U.N. Charter, Art. 2(4). ↩

11. 11.

    Id. Art. 51. ↩

12. 12.

    Rome Statute, Art. 31(1)(c). ↩

13. 13.

    See, e.g., Jakob Pichon, International Criminal Court and United Nations Security Council, 218 Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 349, 353 (2011), available online. ↩

14. 14.

    Id. ↩

15. 15.

    Rome Statute, supra note 12, at Art. 31(1)(c); U.N. Charter, supra note 10, at Art. 51. ↩

16. 16.

    Elise Baker, Hamas’s Actions Are War Crimes. Israel Should not Respond with Further War Crimes., Atlantic Council (Oct. 16, 2023), available online. ↩

17. 17.

    Id. ↩

18. 18.

    Id. ↩

19. 19.

    Id. ↩

20. 20.

    John Cherry & Michael Rizzotti, Understanding Self-Defense and the Law of Armed Conflict, Articles of War (Mar. 9, 2021), available online. ↩

21. 21.

    U.N. Charter, supra note 10, at Art. 51. ↩

22. 22.

    Id. ↩

23. 23.

    Id. ↩

24. 24.

    Id. ↩

25. 25.

    Id. ↩

26. 26.

    Id. ↩

27. 27.

    Jérémie Gilbert, Justice Not Revenge: The International Criminal Court and the “Grounds to Exclude Criminal Responsibility”: Defences or Negotiation of Criminality, 8 (Mar. 1, 2010), available online. ↩

28. 28.

    Cherry & Rizzotti, supra note 20. ↩

29. 29.

    Id. ↩

30. 30.

    Id. ↩

31. 31.

    Gilbert, supra note 27. ↩

32. 32.

    U.N. Charter, supra note 10, at Art. 51. ↩

33. 33.

    Rome Statute, supra note 12, at Art. 31(1)(c). ↩

34. 34.

    See id. ↩

35. 35.

    See, e.g., id. Art. 13. ↩

36. 36.

    Cherry & Rizzotti, supra note 20, at 9. ↩

37. 37.

    Id. ↩

38. 38.

    Jim Zanotti, Jeremy M. Sharp & Christopher M. Blanchard, Cong. Research Serv., R47754, Israel and Hamas October 2023 Conflict: Frequently Asked Questions (Oct. 20, 2023), available online. ↩

39. 39.

    The Middle East, Including the Palestinian Question: Vote on Competing Draft Resolutions, S.C. Rep., Oct. 25, 2023, available online. ↩

40. 40.

    Adil Ahmad Haque, Enough: Self-Defense and Proportionality in the Israel–Hamas Conflict, Just Security (Nov. 6, 2023), available online; S.C. Meeting, UN Doc. S/PV.9443 (Oct. 18, 2023), download. ↩

41. 41.

    Haque, supra note 40. ↩

42. 42.

    Id. ↩

43. 43.

    Id. ↩

44. 44.

    Adil Ahmad Haque, Self-Defense Against Non-State Actors: All Over the Map, Just Security (Mar. 24, 2021), available online. ↩

45. 45.

    Id. ↩

46. 46.

    Id. ↩

47. 47.

    United States Department of State, 2022 Country Reports on Human Rights Practices: Israel, West Bank and Gaza (2022), available online. ↩

48. 48.

    Haque, supra note 40. ↩

49. 49.

    Id. ↩

50. 50.

    Id. ↩

51. 51.

    Id. ↩

52. 52.

    Adil Ahmad Haque, “Clearly of Latin American Origin”: Armed Attack by Non-State Actors and the U.N. Charter, Just Security (Nov. 5, 2019), available online. ↩

53. 53.

    Id. ↩

54. 54.

    Id. ↩

55. 55.

    Id. ↩

56. 56.

    Id. ↩

57. 57.

    The United Nations Conference on International Organization, D.244, Minutes of the Seventh Five-Power Informal Consultative Meeting on Proposed Amendments 832 (San Francisco, May 21, 1945), available online. ↩

58. 58.

    Haque, supra note 52. ↩

59. 59.

    Rogier Bartels, Dealing with the Principle of Proportionality in Armed Conflict in Retrospect: The Application of the Principle in International Criminal Trials, 46 Israel L. Rev. 271 (Jul. 2013), paywall, doi. ↩

60. 60.

    Id. ↩

61. 61.

    Robert McAuliffe, A Procedural Due Process Argument for Proportionality Review in Capital Sentencing, 21 Colum. J.L. & Soc. Probs. 385 (1988), paywall. ↩

62. 62.

    Juan Cianciardo, The Principle of Proportionality: The Challenges of Human Rights, 3 J. of Civ. L. Stud. 177 (Jan. 1, 2010), available online. ↩

63. 63.

    Anaïs Maroonian, Proportionality in International Humanitarian Law: a Principle and a Rule, Articles of War (Oct. 24, 2022), available online. ↩

64. 64.

    Id. ↩

65. 65.

    Bartels, supra note 59, at 273; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 1125 U.N.T.S. 3, Art. 48 (Jun. 8, 1977) [hereinafter Additional Protocol I], available online, archived. ↩

66. 66.

    Maroonian, supra note 63. ↩

67. 67.

    See, e.g., Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 75 U.N.T.S. 31, Art. 12(5) (adopted Aug. 12, 1949, entered into force Oct. 12, 1950) [hereinafter First Geneva Convention], available online; Geneva Convention Relative to the Treatment of Prisoners of War, 75 U.N.T.S. 135, Art. 75(3) (adopted Aug. 12, 1949, entered into force Oct. 12, 1950) [hereinafter Third Geneva Convention], available online; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 75 U.N.T.S. 287, Art. 89(4) (adopted Aug. 12, 1949, entered into force Oct. 12, 1950) [hereinafter Fourth Geneva Convention], available online. ↩

68. 68.

    Fourth Geneva Convention, at Art. 89. ↩

69. 69.

    David Kretzmer, The Inherent Right to Self-Defense and Proportionality in Jus Ad Bellum, 24 EJIL 235 (Feb. 2013), available online. ↩

70. 70.

    Maroonian, supra note 63. ↩

71. 71.

    Id.; Fourth Geneva Convention, supra note 67, at Art. 42(1). ↩

72. 72.

    Kai Möller, Proportionality: Challenging the Critics, 10 ICON 709 (2012), available online. ↩

73. 73.

    Maroonian, supra note 63. ↩

74. 74.

    Id. ↩

75. 75.

    Id. ↩

76. 76.

    Id.; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 75 U.N.T.S. 85, Art. 50(1) (adopted Aug. 12, 1949, entered into force Oct. 12, 1950) [hereinafter Second Geneva Convention], available online. ↩

77. 77.

    Id.; Third Geneva Convention, supra note 67, at Arts. 75(4), 60(3)(b). ↩

78. 78.

    Michael A. Newton, Reframing the Proportionality Principle, 51 Vand. J. Transnat’l L. 867 (2018), available online. ↩

79. 79.

    Rome Statute, supra note 12, at Art. 8(2)(b)(iv). ↩

80. 80.

    Newton, supra note 78, at 883, 884. ↩

81. 81.

    Additional Protocol I, supra note 65, at Art. 51(5)(b). ↩

82. 82.

    Newton, supra note 78, at 884. ↩

83. 83.

    Id. ↩

84. 84.

    Id. at 873. ↩

85. 85.

    Möller, supra note 72, at 711. ↩

86. 86.

    Id. ↩

87. 87.

    Hannah Tonkin, Defensive Force under the Rome Statute, 6 Melb. J. Int’l L. 86 (2005), available online.

    (Here, under (2) Reasonably Proportionate, only the weighing of the personal interests of the aggressor and the interests being defended are noted). ↩

88. 88.

    Möller, supra note 72, at 711. ↩

89. 89.

    Legitimacy, Cambridge Dict., available online (last visited Dec. 13, 2023). ↩

90. 90.

    Möller, supra note 72, at 712. ↩

91. 91.

    European Convention on Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221, Arts. 8(2), 9(2), 10(2), 11(2) (opened for signature Nov. 4, 1950), available online. ↩

92. 92.

    Id. ↩

93. 93.

    Id. ↩

94. 94.

    Id. ↩

95. 95.

    Luka Anđelković, The Elements of Proportionality as a Principle of Human Rights Limitations, 15 L. and Pol. 235 (2017), paywall. ↩

96. 96.

    Id. ↩

97. 97.

    Möller, supra note 72, at 713. ↩

98. 98.

    Nada v. Switzerland, 10593/08, Judgment (ECtHR GC, Sep. 12, 2012), available online. ↩

99. 99.

    Möller, supra note 72, at 713. ↩

100. 100.

     Kretzmer, supra note 69. ↩

101. 101.

     Military Necessity, Prac. Guide to Humanitarian L., available online (last visited Dec. 13, 2023). ↩

102. 102.

     Möller, supra note 72, at 715. ↩

103. 103.

     Anđelković, supra note 95, at 241. ↩

104. 104.

     Id. ↩

105. 105.

     Möller, supra note 72, at 715. ↩

106. 106.

     Id. at 715, 716. ↩

107. 107.

     Id. at 715. ↩

108. 108.

     Id. ↩

109. 109.

     Id. ↩

110. 110.

     Nils Melzer, International Humanitarian Law: A Comprehensive Introduction, ICRC 101 (Nov. 2019), available online. ↩

111. 111.

     Id. at 102. ↩

112. 112.

     Id. at 101. ↩

113. 113.

     Global Conflict Tracker, Israeli–Palestinian Conflict, CPA (Dec. 4, 2023), available online (last visited Dec. 13, 2023). ↩

114. 114.

     Additional Protocol I, supra note 65, at Art. 52. ↩

115. 115.

     Gaby Rado, Legitimate Military Target, Crimes of War (archived Sep. 25, 2009), archived. ↩

116. 116.

     Id. ↩

117. 117.

     Michael N. Schmitt, Targeting Dual-Use Structures: An Alternative Interpretation, Articles of War (Jun. 28, 2021), available online. ↩

118. 118.

     See, e.g., Aurel Sari, Israeli Attacks on Gaza’s Tower Blocks, Articles of War (May 17, 2021), available online; Adil Ahmad Haque, The IDF’s Unlawful Attack on Al Jalaa Tower, Just Security (May 27, 2021), available online. ↩

119. 119.

     Loveday Morris, Israel has Vowed to Destroy Hamas. Yet the Group Remains Largely Intact, Wash. Post, Dec. 5, 2023, available online. ↩

120. 120.

     Melzer, supra note 110, at 101. ↩

121. 121.

     Haque, supra note 40. ↩

122. 122.

     Id. ↩

123. 123.

     See, e.g., Alexandra Sharp, Israel Touts Military Success Against Hamas, Foreign Pol. (Nov. 14, 2023), available online. ↩

124. 124.

     Morris, supra note 119. ↩

125. 125.

     Mark Lattimer, Assessing Israel’s Approach to Proportionality in the Conduct of Hostilities in Gaza, Lawfare (Nov. 16, 2023), available online. ↩

126. 126.

     See, e.g., European External Action Service, 772 Rev. 8, Avoiding and Minimalizing Collateral Damage in EU-led Military Operations Concept 17 (Feb. 3, 2016), available online. ↩

127. 127.

     Lattimer, supra note 125. ↩

128. 128.

     Press Release, ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign in Kosovo, ¶ 50 (Jun. 13, 2000), available online. ↩

129. 129.

     Haque, supra note 40. ↩

130. 130.

     Id. ↩

131. 131.

     Lattimer, supra note 125. ↩

132. 132.

     Press Release, IDF, IDF & ISA Eliminate Commander of Hamas’ Central Jabaliya Battalion (Oct. 31, 2023), available online. ↩

133. 133.

     Lattimer, supra note 125. ↩

134. 134.

     Marc Schack, In Defence of Preliminary Assessments: Proportionality and the 31 October Attack on the Jabalia Refugee Camp, EJIL Talk (Nov. 8, 2023), available online. ↩

135. 135.

     John Cherry, Kieran Tinkler & Michael N. Schmitt, Avoiding Damage on the Battlefield, Just Security (Feb. 11, 2021), available online. ↩

136. 136.

     Id. ↩

137. 137.

     See Frank Wolfe, Pentagon Removed Non-Combatant Casualty Cut-Off Value from Doctrine in 2018, Defense Daily (Nov. 6, 2021), available online

     (quote by Peter Gersten, Senior United States Commander). ↩

138. 138.

     Id. ↩

139. 139.

     Lattimer, supra note 125. ↩

140. 140.

     Id. ↩

141. 141.

     Id.

     (coming to the same conclusion). ↩

142. 142.

     Jabalia Camp, UNRWA (updated Jul. 2023), available online. ↩

143. 143.

     Lattimer, supra note 125. ↩

144. 144.

     Newton, supra note 78, at 868. ↩

145. 145.

     Schack, supra note 134. ↩

146. 146.

     The Prosecutor v. Ante Gotovina, Ivan Čermak, Mladen Markač, IT-06-90-A, Judgement (ICTY TC I, Apr. 15, 2011), available online. ↩

147. 147.

     Schack, supra note 134. ↩

148. 148.

     Id. ↩

149. 149.

     The Prosecutor v. Ante Gotovina, Mladen Markač, IT-06-90-A, Judgement (ICTY AC, Nov. 16, 2012), available online. ↩

150. 150.

     Schack, supra note 134. ↩

151. 151.

     See, e.g., Marko Milanovic, Does Israel Have the Right to Defend Itself?, EJIL Talk (Nov. 14, 2023), available online. ↩

152. 152.

     Mary Ellen O’Connell, The Lessons of 9/11 for October 7, EJIL Talk (Oct. 28, 2023), available online. ↩

153. 153.

     Id. ↩

154. 154.

     Id. ↩

155. 155.

     Victor Tadros, Proportionality and Responsibility in the Israel–Hamas Conflict, Daily Nous (Oct. 23, 2023), available online. ↩

156. 156.

     Id. ↩

157. 157.

     Haque, supra note 40. ↩

158. 158.

     Nave Dromi, Israeli Victory Is the Only “Proportional” Response, Mid. East F. (Oct. 18, 2023), available online. ↩

159. 159.

     Lara Seligman & Alexander Ward, US asks Israel for “Explanation” of Strike on Gaza Refugee Camp, Politico (Nov. 3, 2023), available online. ↩

160. 160.

     UN’s Türk Urges Probe Into Alleged Sexual Violence During Hamas Terror Attacks, UN News, Dec. 6, 2023, available online

     (discussing the ongoing sexual violence against female hostages). ↩

161. 161.

     Yahli Shereshevsky, A Plea to the International Law Community: On De-Humanizing and the October 7th Atrocities, Just Security (Dec. 4, 2023), available online. ↩