Michael Totten, in Gaza and the Law of Armed Conflict actually investigates how International Law addresses the issue, referring to the Law of Armed Conflict (LOAC)
The LOAC arises from a desire among civilized nations to prevent unnecessary suffering and destruction while not impeding the effective waging of war. A part of public international law, LOAC regulates the conduct of armed hostilities. It also aims to protect civilians, prisoners of war, the wounded, sick, and shipwrecked. LOAC applies to international armed conflicts and in the conduct of military operations and related activities in armed conflict, however such conflicts are characterized.Totten writes:
In other words, the concept of disproportionate force does not mean that force equal to that of the aggressor must be used, rather that no more force than necessary be used.
Proportionality, in short and according to the law, “prohibits the use of any kind or degree of force that exceeds that needed to accomplish the military objective.”
In other words, if a surgical strike is all that is needed to take out a Grad rocket launcher, carpet bombing the entire city or even the neighborhood isn’t allowed.
Hamas is still firing rockets; therefore, the IDF is not using more force than necessary to disrupt the firing of rockets. Israel, arguably, is using less force than necessary. And the IDF, unlike Hamas, does what it can to minimize injury to civilians. “Militants often operate against Israel from civilian areas,” the Associated Press reported last week. “Late Saturday, thousands of Gazans received Arabic-language cell-phone messages from the Israeli military, urging them to leave homes where militants might have stashed weapons.” Israeli commanders are even warning individual Hamas leaders that their homes are on the target list so they can vacate the premises in advance. [bolded emphasis mine]
Totten goes a step further, describing the doctrine of distinction:
Distinction, according to the Law of Armed Conflict, “means discriminating between lawful combatant targets and noncombatant targets such as civilians, civilian property, POWs, and wounded personnel who are out of combat. The central idea of distinction is to only engage valid military targets. An indiscriminate attack is one that strikes military objectives and civilians or civilian objects without distinction. Distinction requires defenders to separate military objects from civilian objects to the maximum extent feasible. Therefore, it would be inappropriate to locate a hospital or POW camp next to an ammunition factory.”Read Totten's entire post.
Hamas violates this doctrine in two ways at once. Its fighters launch Qassam, Katyusha, and Grad rockets into Israeli civilian areas, and they fire those rockets from inside Palestinian civilian areas. Both are prohibited by the Law of Armed Conflict.
The law does not, however, prohibit Israel from striking legitimate military targets in civilian areas. “Although civilians may not be made the object of a direct attack, the LOAC recognizes that a military target need not be spared because its destruction may cause collateral damage that results in the unintended death or injury to civilians or damage to their property.”
Hamas, then, is legally to blame for all, or nearly all, injuries and deaths of both Israelis and Palestinians. [bolded emphasis mine]
Not that we have any reason to expect the facts or the law to have any effect on the UN or the Security Council.
UPDATE: And of course, don't forget to read Alan Dershowitz:
First, there is no legal equivalence between the deliberate killing of innocent civilians and the deliberate killings of Hamas combatants. Under the laws of war, any number of combatants can be killed to prevent the killing of even one innocent civilian. Second, proportionality is not measured by the number of civilians actually killed, but rather by the risk posed. This is illustrated by what happened on Tuesday, when a Hamas rocket hit a kindergarten in Beer Sheva, though no students were there at the time. Under international law, Israel is not required to allow Hamas to play Russian roulette with its children’s lives.Read the whole thing.
Crossposted on Soccer Dad