When a Nation’s Response Follows Its Gross Failure to Protect: Rethinking Proportionality of Civilian Harm in Gaza and Beyond
Abstract
This article proposes a doctrinal refinement to international humanitarian law: when a state suffers an attack in part due to its own gross failure of duty — conduct that rises above negligence but falls short of intent — that culpability should constrain the permissible scope of its military response when substantial civilian harm to the aggressor is foreseeable. Using the October 7th Hamas attacks as a case study, the piece outlines a framework for integrating prior state culpability into proportionality analysis, aiming to better balance military necessity, civilian protection, and sovereign accountability in an era of asymmetric conflict.
Introduction
Imagine a scenario in which the United States recklessly disregards multiple credible intelligence warnings about an imminent drone attack by a hostile foreign government. Within days, a drone penetrates U.S. airspace and strikes a key government facility in Washington, D.C., with deadly results.
The public demands swift and decisive retaliation — perhaps even a strike on the enemy’s capital. But such an action would cause massive civilian casualties, harming people who played no role in the attack.
The President asks her senior legal advisors whether international law would permit such a massive, non-targeted response.
The answer would be no if international law required a state to account for its own role in allowing the attack, and if no ongoing threat of another drone attack remained. But under the prevailing interpretation of proportionality — the principle that military force must be balanced against legitimate objectives — a nation’s role in allowing an attack to occur is legally irrelevant.
Without some form of accountability, proportionality risks becoming a shield for retaliatory excess. This issue is especially salient considering Israel’s ongoing military response in Gaza following the October 7th unlawful and heinous terrorist attacks by Hamas.
This essay doesn’t question a nation’s right to dismantle a terrorist organization that continues to pose a threat. Instead, it asks whether a state’s failure beyond mere negligence to prevent such an attack should help shape the legal limits of its military response — especially when that response is expected to cause widespread civilian harm.
Without such accountability, international law creates a dangerous moral hazard: a state may ignore serious warning signs, fail to exercise its duty of care, and then invoke its own failure to justify overwhelming military responses under the guise of lawful self-defense. Proportionality, if left untethered from prior state conduct, risks becoming a doctrine that shields retribution rather than restrains it.
For purposes of this discussion, I use the term “gross failure of duty” to describe circumstances where a state’s disregard of known risks or failure to act upon credible warnings rises above mere negligence but does not amount to intentional wrongdoing.
So why focus on Israel rather than, for example, Russia’s targeting of civilians in Ukraine? Because proportionality applies to lawful self-defense after suffering an attack. It does not apply to an aggressor who unlawfully initiates war in the first instance. Nor does it purport to offer a general theory of self-defense, preemption, or anticipatory strikes.
Israel’s Apparent Intelligence Failures
On October 7, 2023, Hamas launched its assault on Israel, killing approximately 1,200 Israelis and capturing over 200 hostages. As extensive reporting has since revealed, Israeli intelligence failures were apparently central to Hamas’s ability to execute the attack.
According to Haaretz and the New York Times, Israel’s domestic security service Shin Bet had obtained Hamas’s detailed battle plan, codenamed “Jericho Wall,” a full year in advance. However, senior officials dismissed the document as speculative and aspirational rather than actionable.
Further warnings from junior intelligence officers, field analysts, and border surveillance units were repeatedly disregarded in the months and days before the attack.)
No Israeli commission has yet formally adjudicated whether this conduct constitutes a gross failure of duty. But if a fact-finding tribunal were to reach that conclusion, this culpability should bear on how proportionality is assessed.
Proportionality Must Evolve
International humanitarian law, primarily through the Geneva Conventions, prohibits military operations likely to cause civilian harm that would be excessive in relation to the anticipated concrete military advantage.
While current proportionality doctrine analyzes civilian harm in relation to military advantage from the moment force is used, it does not account for a state’s gross failure of duty that enabled the threat in the first place.
This proposal does not replace proportionality with an aggressor’s responsibility or reparations but rather argues that where a defending state has committed a gross failure of duty, that culpability should help shape the permissible scope of military objectives in response — narrowing what can be legitimately pursued while still honoring the core balance proportionality requires.
A defending state that committed a gross failure of duty should not be entitled to pursue maximalist war aims — especially once the immediate threat has been contained. Its military response should be limited to objectives it could have lawfully pursued had it not committed that failure — including repelling the incursion, rescuing hostages, and targeting those directly responsible for the attack.
But if Israel had committed a gross failure of duty, it should not be able to lawfully justify pursuing Hamas’s wholesale eradication through sustained, indiscriminate bombing that foreseeably devastates Gaza’s civilian population. That path should veer away from lawful self-defense and toward retribution untethered from legal accountability.
Absent such constraints, any government could invoke its own failure to justify disproportionate devastation under the banner of lawful self-defense — the very moral hazard international law should seek to avoid.
The Complexity of Urban Warfare
Israel argues that Hamas embeds its operations inside densely populated civilian areas, making precision targeting nearly impossible. Hamas’s deliberate use of human shields is indeed a violation of international law.
But even under the current legal standards for considering proportionality, this does not relieve Israel of its own legal and ethical obligations. Even when confronting an enemy that exploits civilians, proportionality demands that Israel minimize civilian harm as much as feasible.
Moreover, if it was Israel’s gross failure of duty that enabled the October 7th incursions, that culpability should matter because the operational necessity for many of the most destructive strikes might never have arisen — especially if no hostages had been taken and citizens not brutally slaughtered inside of Israel.
Israel’s Apparent Role in Hamas’ Rise
Complicating matters further is Israel’s policy in the years preceding October 7th, during which it quietly approved significant Qatari funding into Gaza. The goal was to keep Hamas in power as a weak, divided counterweight to the Palestinian Authority in the West Bank — a strategy designed to prevent Palestinian political unity.
While expedient in the short term, this policy may have ultimately empowered the enemy that Israel now seeks to eliminate. This does not absolve Hamas’s criminality. But it should be considered in a proportional response analysis. A state should not both enable a known adversary and later invoke that adversary’s existence to justify maximum-force campaigns enveloping civilian populations.
A Historical Parallel
Some defenders of Israel’s Gaza campaign may cite historical precedents where massive civilian destruction was used to force surrender — notably Hiroshima, Nagasaki, and Dresden during World War II.
In August 1945, the U.S. dropped atomic bombs on Hiroshima and Nagasaki, killing over 100,000 civilians to compel Japan’s unconditional surrender. Earlier that year, U.S. and British forces firebombed Dresden, incinerating tens of thousands more. Both acts were justified at the time as necessary to avoid costly ground invasions.
Yet under modern proportionality standards those actions would be indefensible. Japan and Germany no longer posed imminent threats when civilian population centers were targeted. These were not strikes to stop active aggression, but to induce total capitulation through maximum devastation.
The relevance today is not abstract. As scrutiny intensifies over Israel’s Gaza operations, defenders may invoke these precedents as justification. But if those actions should have been legally and morally wrong then, they cannot be made right now.
Conclusion
Self-defense should not serve as a legal shield that erases prior responsibility. Proportionality must recognize that when a state has committed a gross failure of duty in failing to prevent an attack, its military response must reflect that culpability — limiting its objectives to those that would have been justified had it fulfilled its duty to protect in the first place.
