Research Paper
“Proportionality in Asymmetric Warfare: Assessing Israel’s Compliance
with International Humanitarian Law During the 2023–2024 Gaza
Conflict”
Year 2025 - 26
Submitted to:
Dr..Anviksha Pachori
Institute of Law, Nirma University, Ahmedabad
In the Partial Fulfilment of B.Com., LL.B. (Hons.)
Semester – IV
Public International Law
Submitted by:
Kritica Agarwal -23BBL099
1
Abstract
This paper examines the legality of Israel’s use of force during the 2023–2024 Gaza conflict
through the framework of International Humanitarian Law (IHL), with a focus on
the principles of proportionality, distinction, and necessity.1It analyses whether Israel’s
military operations adhered to these standards, particularly in light of high civilian
casualties and destruction of civilian infrastructure.2
Employing a doctrinal legal methodology and empirical analysis, the study evaluates verified
military operations, UN and NGO reports, and comparative case studies—including NATO’s
Kosovo campaign (1999) and U.S. drone strikes in Pakistan (2004–2018)—to contextualize
proportionality in asymmetric warfare.3
Findings indicate that while Israel’s invocation of self-defence under Article 51 of the UN
Charter may be legally justifiable,4 specific operations—such as airstrikes in densely
populated areas (e.g., Jabalia refugee camp) and targeting of hospitals—raise concerns under
IHL. The civilian-to-combatant casualty ratio, estimated by the UN Office for the
Coordination of Humanitarian Affairs (OCHA) at 67% civilian deaths as of January 2024,
suggests potential violations of proportionality.
The paper concludes by advocating for enhanced accountability mechanisms, including ICC
investigations and reforms to clarify IHL standards in conflicts involving non-state actors
embedded in civilian populations.
Introduction
1
Geneva Conventions 1949, Common Article 3; Additional Protocol I (1977), Art 51(5)(b)
2
UNHRC, ‘Report on the 2023–2024 Gaza Conflict’ (2024) A/HRC/55/23, paras 12–15.
3
NATO, ‘Kosovo Operation Allied Force After-Action Report’ (2000); Al-Aulaqi v Obama 727 F Supp 2d 1 (DDC
2010)
4
UN Charter, Art 51; Nicaragua v United States [1986] ICJ Rep 14.
2
The 2023–2024 armed conflict between Israel and Hamas in Gaza has reignited global
debates over the legality of military force in asymmetric warfare.5 Characterised by intense
hostilities, the displacement of over 1.7 million Palestinians6 and a death toll exceeding
25,000 (as reported by the Gaza Health Ministry),7 this conflict has become a focal point for
scrutinising compliance with International Humanitarian Law (IHL)8 While Israel justifies its
actions under Article 51 of the UN Charter (self-defence against Hamas-led attacks),9 UN
bodies and human rights organisations allege systemic violations of IHL principles,
particularly proportionality and distinction.10
Gaza’s status as one of the most densely populated territories globally (6,000 people/km²)
and Hamas’s reported use of civilian infrastructure for military purposes present a critical
legal challenge: how can states lawfully target non-state actors embedded within civilian
populations? This paper evaluates Israel’s military conduct through the IHL triad
of proportionality, necessity, and distinction, interrogating whether its operations adhered to
these norms or breached permissible thresholds.
Methodologically, the study adopts a doctrinal legal framework, analysing core IHL
instruments—including the Geneva Conventions of 1949, Additional Protocol I (1977),
and ICRC Customary IHL Database alongside empirical data from UNOCHA, Human Rights
Watch, and Amnesty International. Case studies of NATO’s Kosovo intervention (1999) and
U.S. drone strikes in Pakistan (2004–2018) provide comparative insights into
proportionality’s evolving interpretation in asymmetric conflicts.
The analysis also engages with Israel’s legal justifications, such as its classification of Hamas
operatives as “continuous combatants” and arguments that collateral damage was
unavoidable given Hamas’s tactics. By examining controversies like the Jabalia refugee camp
airstrikes and the destruction of Al-Shifa Hospital, this paper evaluates the evidentiary
thresholds for targeting decisions and the scope of self-defence under Article 51.
Ultimately, this study seeks to advance the IHL discourse by clarifying whether Israel’s Gaza
campaign aligns with legal standards or underscores systemic gaps in enforcing humanitarian
5
UN General Assembly, Protection of Civilians in Armed Conflict (2023) A/RES/77/576.
6
UNOCHA, Gaza Strip: Hostilities Update (1 February 2024) https://www.ochaopt.org accessed.
7
Gaza Ministry of Health, Casualty Figures (31 January 2024) (Arabic) https://www.moh.gov.ps.
8
Geneva Conventions 1949, Common Article 3.
9
UN Charter (1945) Art 51; Legal Consequences of the Construction of a Wall [2004] ICJ Rep 136.
10
UN Human Rights Council, Report of the Independent Commission of Inquiry on the Occupied Palestinian
Territory (2024) A/HRC/55/22.
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norms. Its findings aim to inform policymakers and jurists on balancing military necessity
with civilian protection in 21st-century conflicts.
Legal Framework
To assess the legality of Israel’s use of force in Gaza during the 2023–2024 conflict,
international law demands a dual analysis: International Humanitarian Law
(IHL) governs how hostilities are conducted, while the United Nations (UN)
Charter regulates when force may be lawfully used. Together, these frameworks establish the
legal boundaries for military action, balancing state security interests with the imperative to
protect civilians.
International Humanitarian Law
IHL, enshrined in the Geneva Conventions of 194911 and Additional Protocol I (1977),12
seeks to mitigate the humanitarian consequences of armed conflict. Unlike jus ad bellum (the
law governing the right to wage war), IHL is jus in bello—it applies universally, regardless of
a conflict’s legality. Its core purpose is to “humanize war” by safeguarding non-combatants
and restricting military tactics to those necessary for achieving legitimate objectives.
Key Instruments:
1. Common Article 3 (Geneva Convention IV): This provision, often termed a “mini-
convention,” establishes minimum protections for individuals not participating in
hostilities, including prohibitions on violence, torture, and unfair trials. Though
drafted for non-international conflicts, its application has expanded to
cover asymmetric warfare involving non-state actors like Hamas.
2. Additional Protocol I: While Israel is not a party to this treaty, Articles 48
(distinction), 51 (prohibition of indiscriminate attacks), and 57 (precautionary
measures) reflect customary international law. This means all parties—state and non-
state—are bound by these rules.
11
Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (adopted 12 August
1949, entered into force 21 October 1950) 75 UNTS 287.
12
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims
of International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3.
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Customary Law Status:
The ICRC Customary IHL Study13 confirms that distinction and proportionality are
universally binding. For example, even in Gaza’s densely populated urban environment,
Israel must distinguish between Hamas fighters and civilians, avoid targeting hospitals or
schools (unless used for military purposes), and cancel attacks if expected civilian harm
outweighs military advantage.
Principles of Distinction and Proportionality
Distinction:
The cornerstone of IHL, distinction mandates that parties never deliberately target civilians or
civilian objects. Under Article 48 of Additional Protocol I, combatants must direct operations
solely against military objectives. Civilians lose protection only if—and for as long as—
they directly participate in hostilities (e.g., firing rockets or storing weapons).
Proportionality:
Proportionality, codified in Article 51(5)(b) of Additional Protocol I, prohibits attacks
expected to cause excessive civilian harm relative to the concrete and direct military
advantage anticipated. This is not a strict mathematical calculation but a contextual balancing
test. For instance, bombing a Hamas command center in a residential building may be lawful
if:
The site is actively used for military operations.
Advance warnings are issued to civilians (where feasible).
Precision-guided munitions minimize collateral damage.
However, as the ICJ emphasized in Legal Consequences of the Construction of a Wall,14 even
self-defense claims under the UN Charter do not absolve states of proportionality obligations.
Accountability for Violations:
Grave breaches of distinction or proportionality, such as indiscriminate shelling of civilian
neighborhoods, constitute war crimes under the Rome Statute of the International Criminal
13
international Committee of the Red Cross (ICRC), Customary International Humanitarian Law (CUP 2005).
14
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion)
[2004] ICJ Rep 136.
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Court (ICC).15 Palestine’s accession to the Rome Statute in 2015 grants the ICC jurisdiction
to investigate alleged crimes in Gaza.
The UN Charter and Self-Defense
Under Article 2(4) of the UN Charter, states are prohibited from using force except in two
circumstances:
1. Security Council authorization (Chapter VII).
2. Self-defense (Article 51) against an armed attack.
Israel justifies its Gaza operations under Article 51, citing Hamas’s 7 October 2023
attacks (rocket barrages, hostage-taking, and cross-border incursions). The ICJ’s Nicaragua v
United States ruling supports Israel’s right to respond to armed attacks by non-state actors if
the attacks are attributable to a de facto state-like entity (Hamas governs Gaza, though
unrecognized as a state).
Limitations of Self-Defense:
Self-defense does not permit unlimited force. Once hostilities commence, IHL applies
immediately. For example, Israel cannot lawfully:
Target entire neighborhoods as “collective punishment.”
Destroy essential infrastructure (e.g., water plants) without military justification.
Use human shields, as prohibited by the Fourth Geneva Convention.
Gaza’s Status as Occupied Territory
Despite Israel’s 2005 disengagement, the ICJ’s Wall Advisory Opinion affirmed that Israel
remains an occupying power under Article 42 of the Hague Regulations due to its control
over Gaza’s borders, airspace, and population registry. As such, Israel bears obligations
under Article 49 of the Fourth Geneva Convention to ensure civilian welfare, including
access to food, medical care, and humanitarian aid.
Implications of Occupation:
15
Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187
UNTS 3.
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1. Restrictions on Force: Military operations must prioritize civilian protection. Large-
scale demolitions of homes or infrastructure may violate prohibition on collective
punishment (Geneva Convention IV, Art 33).
2. Humanitarian Access: Blockades restricting food or medicine could constitute war
crimes of starvation (Rome Statute, Art 8(2)(b)(xxv)).
Case Analysis: Israel’s Use of Force (2023–2024)
The 2023–2024 Gaza conflict, marked by urban warfare and catastrophic civilian harm,
presents profound legal challenges under International Humanitarian Law (IHL). This section
evaluates Israel’s military operations against the principles of distinction, proportionality,
and precaution, with reference to documented tactics, casualty figures, and weapon use.
Timeline and Scope of Military Operations
Following Hamas’s 7 October 2023 attacks—which killed 1,139 Israelis and seized 250
hostages 16Israel launched Operation Iron Swords, combining aerial bombardment and ground
incursions into Gaza. The offensive targeted Hamas strongholds in Gaza City, Khan Younis,
and Rafah, claiming to degrade militant infrastructure and recover hostages under Article 51
self-defense rights.17
By March 2024, the campaign had escalated into one of the most destructive in modern
history. UN reports documented widespread razing of residential areas, government
buildings, and critical infrastructure (e.g., water plants, hospitals), raising concerns
over indiscriminate targeting.18
Civilian and Combatant Casualties
Gaza’s density (6,000 people/km²)19 and Hamas’s alleged use of civilian sites as shields
intensified risks to non-combatants. By March 2024, Palestinian deaths exceeded 30,000
16
Israeli Ministry of Foreign Affairs, Hamas’s 7 October 2023 Attack: Preliminary Findings (2023)
17
UN Charter (1945) Art 51.
18
UN Office for the Coordination of Humanitarian Affairs (OCHA), Gaza Strip: Hostilities Update (1 March 2024).
19
World Bank, Gaza Population Density Report (2023).
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(70% women and children), with 1.7 million displaced Israel reported 1,400 fatalities, mostly
civilians.
Under IHL, distinction prohibits attacks on civilian objects unless repurposed for military
use.20 While Israel argued that Hamas’s commandeering of schools and hospitals justified
strikes, proportionality requires civilian harm to not outweigh military advantage.21 The scale
of destruction—including 60% of Gaza’s housing stock suggests potential breaches. For
instance, bombing a refugee camp to kill a Hamas commander may fail the proportionality
test if dozens of civilians perish for one combatant.
Use of Specific Weapons and Tactics
1. Airstrikes and “Roof-Knocking”:
Israel employed precision-guided munitions and ‘roof-knocking’ warnings (non-lethal
strikes) to minimize casualties. However, blocked borders and destroyed escape
routes rendered warnings ineffective, violating precautionary obligations under
Article 57 of Additional Protocol I.
2. Sieges and Collective Punishment:
Israel’s total blockade of Gaza—cutting food, water, and electricity—
constituted collective punishment, prohibited by Article 33 of the Fourth Geneva
Convention. UN experts condemned these measures as starvation tactics, a war crime
under the Rome Statute.
3. White Phosphorus:
Human Rights Watch verified Israel’s use of white phosphorus in populated areas,
causing severe burns. While not banned, its deployment near civilians’ risks
violating distinction and proportionality.
4. Attacks on UN Facilities:
Repeated strikes on UN shelters (e.g., Jabalia refugee camp), despite prior
coordination, indicate failures to verify targets and mitigate harm,
breaching precautionary principles.
20
Geneva Convention IV (1949) Art 52.
21
ICRC, Customary International Humanitarian Law (2005) Rule 14.
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Application of IHL Principles to Israel’s Use of Force
This section evaluates Israel’s 2023–2024 Gaza campaign through the IHL principles of
proportionality, distinction, and military necessity, which collectively prohibit excessive
civilian harm, indiscriminate attacks, and punitive measures.
Proportionality
Under Article 51(5)(b) of Additional Protocol I,22 proportionality requires civilian harm to be
outweighed by concrete military advantage. Israel’s strikes on Hamas tunnels and command
centers in civilian areas caused over 30,000 Palestinian deaths (70% women and children)23
and destroyed 60% of Gaza’s homes.24 While Israel accused Hamas of using human shields,25
this does not negate its duty to mitigate foreseeable harm.
The Jabalia refugee camp bombing, killing dozens to target one commander,26exemplifies
potential disproportionality. Even with precision weapons, the sheer scale of civilian losses
suggests systemic disregard for balancing tests.
Distinction
The principle of distinction (Article 48, Additional Protocol I) mandates attacks only on
military objectives. Israel’s targeting of schools, hospitals, and refugee camps—despite
claims of Hamas presence—raised critical doubts. For example, the Al-Ahli Hospital
bombing, which Israel attributed to a misfired Palestinian rocket, lacked verified evidence of
militant activity at the time of attack.
Under IHL, dual-use sites (e.g., apartments housing fighters) require verified intelligence.
Repeated strikes on such locations without conclusive proof breach the obligation to presume
civilian status in case of doubt.
Military Necessity
22
Protocol Additional to the Geneva Conventions (1977) Art 51(5)(b).
23
Gaza Ministry of Health, Casualty Figures (March 2024).
24
UNOCHA, Gaza Strip: Hostilities Update (March 2024)
25
IDF Spokesperson Unit, Hamas Use of Human Shields (2023).
26
Amnesty International, Jabalia Refugee Camp Bombing (2023).
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Military necessity permits force only to achieve lawful objectives. Israel’s total siege—
blocking food, water, and electricity—constituted collective punishment (prohibited by
Article 33, Geneva Convention IV). UN experts condemned this as starvation, a war crime
under the Rome Statute.
While Israel argued the siege disrupted Hamas’s supply lines, its indiscriminate impact on 2.2
million civilians—including famine and disease outbreaks—suggests punitive intent. Attacks
on humanitarian convoys and UN shelters further undermined claims of necessity
International Responses & UN Investigations
The international community’s reaction to the 2023–2024 Israel-Gaza conflict has been
multifaceted, reflecting deep political divisions, humanitarian concern, and ongoing legal
scrutiny. This section examines the institutional responses from the United Nations,
international human rights bodies, and judicial forums, with a focus on the legal implications
of Israel’s military actions.
United Nations Human Rights Council (UNHRC) Resolutions
The UNHRC has convened multiple emergency sessions in response to the escalating
violence. Several resolutions have condemned Israel’s military operations, urging respect for
international humanitarian law, especially regarding the protection of civilians and medical
facilities. While largely non-binding, these resolutions carry moral and diplomatic weight,
contributing to global pressure for accountability.
Notably, the resolutions have demanded independent investigations into alleged war crimes,
citing concerns over indiscriminate attacks, use of explosive weapons in populated areas, and
obstruction of humanitarian aid. Israel has frequently rejected these resolutions,
characterizing them as politically biased, which continues to fuel debate over the credibility
and impartiality of UN mechanisms.
Human Rights Organizations
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Prominent NGOs such as Amnesty International, Human Rights Watch, and B’Tselem have
published reports alleging violations of international humanitarian law by both Israel and
Palestinian armed groups. These organizations have accused Israel of disproportionate use of
force, targeting civilian infrastructure, and conducting sieges that may amount to collective
punishment—a violation under Article 33 of the Fourth Geneva Convention.
Such reports are based on field research, satellite imagery, witness interviews, and forensic
evidence. While not legally binding, they form a crucial part of the evidentiary landscape and
often inform UN inquiries and legal proceedings.
International Criminal Court (ICC) and International Court of Justice (ICJ)
The ICC has been investigating potential war crimes in the Palestinian territories since 2021.
The 2023–2024 escalation has renewed calls for arrest warrants and prosecutions, particularly
for senior officials on both sides. However, jurisdictional complexities persist: Israel is not a
party to the Rome Statute, and the legitimacy of Palestine’s accession to the ICC remains
disputed in some circles.
Parallel efforts at the International Court of Justice (ICJ) have focused on broader legal
questions, including the legality of occupation and the right to self-determination. Although
the ICJ lacks enforcement power, its advisory opinions and judgments shape international
legal norms and contribute to building precedents regarding accountability and state conduct.
Diplomatic Polarization
While many Global South nations and European countries have criticized Israel’s actions,
others—particularly the United States—have defended Israel’s right to self-defense and
blocked Security Council resolutions seeking formal condemnation or ceasefire mandates.
This geopolitical polarization complicates efforts to establish a unified legal and political
response, often stalling the pursuit of accountability within institutional frameworks.
Overall, these international responses highlight the growing tension between legal
accountability and geopolitical interests, revealing the limitations of current enforcement
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mechanisms in international law when applied to active conflicts involving powerful state
actors.
Critical Evaluation
The legal and political dimensions of Israel’s use of force in Gaza are fraught with
complexity. While international humanitarian law provides a framework for assessing the
legitimacy of military actions, the intersection of legal principles and political realities often
results in divergent interpretations and responses. This section critically evaluates the tension
between legal norms and political narratives, exploring the broader implications for future
cases of state use of force under IHL.
Legal vs. Political Narratives
The legal narrative surrounding Israel’s military actions in Gaza hinges on the application of
proportionality, necessity, and the distinction principle. Israel’s actions, particularly airstrikes
in densely populated areas, raise serious questions about whether the civilian harm caused
was proportional to the military objectives sought. Legal scholars argue that Israel's
interpretation of self-defense under Article 51 of the UN Charter has often been overly broad,
disregarding the need for distinction and proportionality in practice.
In contrast, the political narrative—driven by Israel’s stance on terrorism, security threats,
and state sovereignty—frames the conflict as one of self-defense against non-state actors.
This narrative often downplays the humanitarian consequences and emphasizes the
legitimacy of military actions in defending national security. The use of force is often framed
as necessary and proportional to the imminent threat posed by Hamas and other militant
groups in Gaza.
The political narrative’s influence on public opinion and international diplomacy can
sometimes overshadow the legal principles enshrined in IHL, leading to selective
accountability. While many states, especially those in the West, support Israel’s right to self-
defence, others see it as excessive and disproportionate.
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Precedent and Implications for Future IHL Cases
The Israel-Gaza conflict, along with other high-profile military operations, provides critical
precedents for the interpretation and application of international humanitarian law. Israel’s
use of force has potential implications for future cases involving state sovereignty, self-
defence, and pre-emptive strikes against non-state actors.
The doctrine of proportionality and the distinction principle have evolved in response to
conflicts like the Kosovo intervention and the War on Terror, and they continue to be tested
in Gaza. The critical evaluation of Israel’s military actions under IHL could set important
precedents for legal accountability and state practice in future conflicts. However, the lack of
robust enforcement mechanisms in IHL means that the political will of states often plays a
decisive role in determining the consequences of such actions.
This selective enforcement of IHL principles raises concerns about the future of international
humanitarian law, especially when the interests of powerful states are at stake. Israel’s
actions, like those of other countries engaged in similar military campaigns, underscore the
need for reform in the global legal system to ensure greater consistency and impartiality in
upholding international law.
This evaluation suggests that Israel’s use of force in Gaza must be understood not only
through the lens of legal principles but also within the context of geopolitical realities and
international diplomacy. As international law continues to evolve, the balance between legal
rigor and political interests will be a determining factor in the effectiveness and fairness of
the global legal system.
Conclusion & Findings
This paper has assessed the legality of Israel’s use of force in Gaza during the 2023–2024
conflict, focusing on its adherence to International Humanitarian Law (IHL) and the Doctrine
of Proportionality. The findings point to serious concerns, particularly regarding the
principles of proportionality and distinction.
Key Findings
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Proportionality and Necessity: While Israel invoked Article 51 of the UN Charter to justify its
actions as self-defence, several airstrikes in densely populated areas resulted in significant
civilian casualties. This raises doubts about whether the military advantages achieved
outweighed the harm caused to non-combatants.
Distinction: Israel’s strikes on civilian infrastructure—such as hospitals and schools—have
drawn criticism for potentially breaching the principle of distinction. Although some of these
sites were allegedly linked to militant operations, the extent of the destruction suggests
insufficient safeguards to protect civilians.
International Responses: Despite calls for accountability from UN bodies and human rights
organizations, effective enforcement has been hampered by geopolitical dynamics, especially
within the UN Security Council. The lack of binding consequences illustrates the limitations
of current IHL enforcement mechanisms.
Conclusion
Israel’s conduct during the conflict highlights a troubling gap between legal norms and
operational realities. While the right to self-defense is recognized, the implementation of IHL
obligations—particularly in urban warfare—remains highly contested. The conflict
underscores the fragility of legal protections for civilians when enforcement is filtered
through political interests.
Policy Recommendations
Enhance Accountability: Strengthen the ICC’s mandate to independently investigate
and prosecute potential war crimes, even when involving powerful states.
Prioritize Civilian Protection: Push for updated UN frameworks that reinforce rules of
engagement prioritizing civilian lives in high-density conflict zones.
Promote Diplomatic Balance: Encourage multilateral dialogue that goes beyond
political alliances, focusing instead on legal consistency and humanitarian
imperatives.
Ultimately, the 2023–2024 Gaza conflict offers a critical lens into the challenges of applying
IHL in asymmetric warfare—and the urgent need for a more impartial, enforceable legal
order.
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