Obligations to Palestinians – Part V: The Conduct of War

Obligations to Palestinians – Part V: The Conduct of War

by

Howard Adelman

Israel has been accused of crimes against humanity because of the large death toll of civilians, particularly children, killed during the recent hostilities. Defenders of Israel have argued that although many civilians have been killed, they were not killed deliberately but only inadvertently or incidentally in attacks on military targets. Further, the number of civilian deaths have been grossly exaggerated by listing some deaths, particularly of children, twice, by listing the very disproportionate number of men of fighting aged killed as civilians, by reporting the militants killed at an absurdly low number. Clearly, these accusations and subsequent Israeli defensive statements easily become part of the propaganda war indifferent to the evidence and the validity of the arguments. In adjudicating such radically competing claims, two principles of ius in bello, the laws in the conduct of war and armed conflict, are most relevant:

· The principle of necessity and proportionality

· The principle of distinction, especially with regard to women and children

There also principles of ius ad bellum, the determination of whether going to war is itself just. I will take up that issue in my next blog. This blog is restricted to an examinations of the boundaries governing the conduct of belligerents on both sides, that is, the means and methods by which each side conducted the war.

According to the Hague Conventions, in the conduct of military operations, at all times combatants are required to distinguish between the civilian population and enemy combatants. This is easier to do for Hamas militants because Israeli soldiers wear uniforms whereas Hamas militants may wear distinctive clothing but often do not and easily blend into the civilian population. Claims have been made that dead militants are then dressed in civilian clothes. Further, in spite of the international legal provision against using children under the age of eighteen to participate in military operations, Hamas ignores this provision.

The application of the laws of war is not very complicated or even controversial with respect to Hamas. Hamas is committed not only to the elimination of Israel but to the extermination of all Zionists. As their popular song “Up Do Terror Attacks” sung in badly pronounced and archaic Hebrew and mockingly now sung by Israelis, especially Israeli soldiers, which calls for exterminating the Zionists as cockroaches, inyenzi in the Rwandan genocide, as the chorus repeatedly promotes:

“Up, do terror attacks,
Rock them, inflict terrible blows,
Eliminate all the Zionists,
Shake the security of Israel!

The fact that there have been so few deaths because of the effectiveness of Israel’s defence system does not mean that crimes have not been committed. Attempted murder, after all, is a crime. The failure to kill significant numbers of civilians within Israel has not been for wont of trying.

However, it has to be recognized that Hamas attacks against civilians in Israel – Jewish, Palestinian, foreign tourists and guest workers – also has become over time more restrictive in recent years as Hamas significantly reduced its suicide attacks against civilian targets. That is why it is so important to determine whether, in the slaying of the three Yeshiva students, the operation was either the work of a rogue group acting contrary to instructions of Hamas, or, at the other extreme, the operation was carried out with financial backing and under instructions from Hamas.

On the Israeli side, which claims to conduct its military operations and to limit its military methods in accordance with the rights and duties of belligerents, the major issue has been about the death of civilians and the targeting of civilian buildings. The rule with respect to distinction is that all belligerents shall at all times distinguish between civilian and combatants. With respect to targets, belligerents are required at all times to use their firepower only for military objectives. Note, the rule does not say only military targets; a civilian target, such as a power plant, may be damaged or destroyed if there is a clear military objective.

However, then the rule of proportionality has to be applied and that norm may rule out targeting a civilian target considered to be a military target. Thus, the Israelis presumably have not destroyed El Sifra Hospital in Gaza, even though it houses the political and military command centre of Hamas, because the collateral damage to civilians would be so great that even hitting such an important target has been ruled out. On the other hand, Hamas in locating its command centre in a hospital is using the civilian population as a shield which it is not permitted to do according to the laws of war. The limitation of Israel attacking El Sifra Hospital was made clearer in the 1977 protocol to the Geneva Conventions

The Convention, which focuses on the civilian population, was strengthened in 1977 by the addition of two protocols. One explicitly forbad direct attacks against civilians where civilian includes any person who is not a member of an armed force. That one protocol to the Fourth Geneva is difficult to apply in asymmetrical warfare where the members of one belligerent party’s armed force is not distinguished by uniforms and where the hard lines between armed forces, police, civilian adjuncts to military units and civilians cooperating with the armed forces to build tunnels or even permit tunnel entries to be built within a house is very difficult to detect.

Nevertheless, the Convention is clear even if the result may be repugnant. Civilian casualties are permitted in military operations as long as those civilian targets are not the intention of the operation and, as long as the number of civilian casualties is not disproportionate to the importance of the military objective. “International humanitarian law and the Rome statute permit belligerents to carry out proportionate attacks in military operations as long as those military objectives, even when it is known that some civilian deaths or injuries will occur. A crime occurs if there is an intentional attack directed against civilians (principle of distinction) … or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality).” Precautions must be taken to first distinguish civilians from militants, to avoid civilian casualties, and, if the latter cannot be avoided given the importance of the military target and objective, then those civilian casualties must be minimized.

Thus, ethics in the conduct of the war are determined by the military objectives and the modes used to achieve them and not by the number of casualties on each side. If the goal is to rout out Hamas’ military and political command, then a far more extensive and ruthless military operation can be contemplated than if the goal is to destroy or significantly reduce the missile capability. However, destroying the tunnel network may be more challenging than either of the two above and the risk to both IDF soldiers and to Palestinian civilians in Gaza may be greater.

So how do we know whether the principles of distinction and proportionality have been followed? We know when they have NOT been followed. If a belligerent admittedly targets civilians, all civilians, and claims that is for military purposes, the principle of distinction has not been followed. If a belligerent deliberately puts its own civilians in harm’s way, the principle of distinction has not been followed. If a side disproportionately kills civilians relative to the military objectives, the principle of proportionality has been breached. If a belligerent risks disproportionate numbers of its own civilians for military objectives, then the principle of proportionality has been broken.

Some of these cases are reasonably easy to determine. Hamas has NOT breached the principle of proportionality in the number of residents of Israel killed by its rockets. Over three thousand rockets (3356 in one Israeli tabulation) were fired at Israel and only three civilians in Israel were killed. Given the goal Hamas articulated in the resort to the use of rockets – lifting the blockade, opening all crossings for goods and materials, releasing Hamas operatives held prisoner by Israel, extending its fishing zone from three to twelve kilometers – the deaths of three civilians in Israel would seem to be disproportionately low for such ambitious military objectives. If its long term objective was the elimination of Israel as a Jewish state, then the numbers of civilians killed and risked in Israel is so extremely low that Hamas was an almost infinite distance from breaching the principle of proportionality relative to that military objective though the military objective itself would be labeled a crime against humanity.

A number of those rockets went astray causing Gazan civilian deaths – no one has offered a reliable estimate – but given that over 3,000 rockets were fired, given the density of Gaza, given the unreliability of those rockets in their ability to hit Israel, an estimate of at least 100 civilian deaths in Gaza would seem very modest. Israelis have indicated that 475 of the Hamas rockets did not reach Israel but landed within Gaza. For example, Israel claims that the 9 children and 1 adult killed in the playground in the Shati refugee camp were the result of a misfired Hamas rocket and not a result of an Israeli air strike; the IDF offered released maps tracking the trajectory of the rocket prior to the explosion based on its aerial reconnaissance. Hamas offered pieces of shrapnel ostensibly taken from the site to prove that the rocket was of Israeli origin.

Israel offered an estimate of over 300 Gazan civilian deaths killed by Hamas and jihadi rockets. Given even the relatively modest Hamas military tactical objectives (as distinguished from its long term strategic objective of eliminating Israel), 100 or even 300 civilians in Gaza killed by friendly fire would seem reasonable given the ambitions of the Hamas military objectives. Risking the lives of up to 300 members of its own population would not appear to be too high a price in the effort to achieve those objectives. And certainly for the far more ambitious objective of exterminating the Zionist regime, such a sacrifice would seem modest indeed. So on all counts, it would not appear that Hamas can be reasonably accused of having breached the principle of proportionality.

What about the Israelis? Has Israel deliberately targeted civilians in Gaza? Without question, Israel has hit civilian targets in which numbers of civilians were killed. According to Israeli calculations, of the figure of at least 1800 civilians after discounting for repeated names, 750-1060 were militants (253 from Hamas, 147 Islamic jihadis, 65 other terrorist and 603 with unknown affiliations for a total of 1058) and at least 300 were killed by friendly fire. The rest then were 600 civilian deaths. Even if a number of these were young boys employed as spotters and runners by the military units, at least 500 civilians in Gaza were killed by Israeli rockets. Given the fire power of the Israelis employed from the air, sea and ground, 500 or so civilian deaths would not seem exorbitant given the ambition of getting Hamas to stop firing its rockets and stop building tunnels into Israel. And if the ambition was really the overthrow of the Hamas military and political command structure, then 500 civilian deaths would seem relatively low to achieve those military objectives.

What if Hamas figures are used of about 1500 rather than 500 civilian deaths? Once the probability of errors is taken into consideration, once the acceptance of civilian casualties to a modest degree relative to an intended military target, even one thousand civilian deaths does not indicate Israel has been deliberately targeting civilians. But what about Israel’s obligation to use its best efforts to distinguish between militants and civilians? Even if the difficulty of making that distinction when the militants do not fight in large military units and do not wear uniforms, such a civilian death total, however awful and regrettable, would not seem to be excessive. But given the accuracy of Israeli weaponry compared to that of Hamas, such a relatively large number of civilian deaths might signify either willful or irresponsible neglect in the sufficient effort to make distinctions in its targeting. That would have to be established on a case by case basis.

Further, Hamas has a track record of deflating militants killed and grossly inflating civilian deaths. In Operation Cast Lead in 2008-09, Hamas initially reported only 50 fighters had died and the rest were civilians. Much later in the face of critical evidence to the contrary, Hamas was forced to admit that the number of militants killed was considerably greater, 600-700, more or less the figure provide by the IDF. In Operation Pillar of Defense, a strictly air operation, in 2012, 87 of 167 Palestinians in Gaza were reportedly civilian deaths, about half, and the proportion of civilian deaths seems to increase when ground troops are employed.

Given the Israeli military objectives, was the death of 500 or even up to 1500 civilian deaths disproportionate to the military objectives of the IDF? If Israel had deliberately targeted the civilian population in four weeks of fighting the death toll of civilians would have run into the tens of thousands. But even if Israel never targeted the civilian population in general, hitting 2 or 3 UNRWA schools providing shelter for civilians could be examples of failing to apply sufficient effort to distinguish between civilian and military targets. The deaths caused in two of the attacks which I previously wrote about may indicate negligence.

On 3 August an explosion ostensibly from an Israeli shell in a courtyard outside a UN school in Rafah killed 10 civilians. Red Crescent said they were killed when lining up for food. Israel showed air photos of the shell exploding in an empty courtyard from which three militants who had launched a rocket had recently fled on a motorbike. Red Crescent insisted there were no militants near the UN school prior to the explosion. Yet without a detached and objective independent inquiry, UN Secretary General Ban Ki-moon described the incident as a “moral outrage and a criminal act”, “yet another gross violation of international law”.

Because the civilian death toll on the part of the Palestinians was so much greater than the civilian death toll among Gazans, the impression might be that the principle of disproportionality had been breached. But numbers do not indicate disproportionality let alone the relative losses on each side. It is the number of civilian casualties relative to the military objectives that indicates whether the principle of disproportionality had been breached. The only principle at stake is the principle of distinction and not the principle of proportionality. In that regard, Hamas explicitly breached the principle of distinction. Israel did not do so deliberately but might have done so through criminal neglect. That would have to be determined in case studies of what the military did when it hit two UNRWA schools housing civilians for protection and when it hit a large number of families wiping out most or even all the members.

Did Hamas prevent those families from leaving? Did Israel give insufficient warning or no warning? What did Israel do to ensure it killed the militants it was targeting and minimize the numbers of civilian deaths? Was the civilian death toll excessive relative to the specific military target? Were civilians killed because insufficient attention was paid to the accuracy of targeting or to the collateral damage that would be caused?

So how do we know whether the principles of distinction and proportionality have been followed? We know when they have NOT been followed. If a belligerent admittedly targets civilians, all civilians, and claims that is for military purposes, the principle of distinction has not been followed. If a belligerent deliberately puts its own civilians in harm’s way, the principle of distinction has not been followed. If Hamas executes alleged informers without a judicial process – as it allegedly did with Ayman Taha and others – then Hamas was guilty of a war crime.

If a side disproportionately kills civilians relative to the military objectives, the principle of proportionality has been breached. If a belligerent risks disproportionate numbers of its own civilians for military objectives, then the principle of proportionality has been broken. One can only conclude that neither side breached the principle of proportionality. Hamas definitely breached the principle of distinction in explicitly targeting civilians in Israel and probably in putting its own civilians in harm’s way because of how it fought the war and in executing civilians without legal due process. Israel might have breached the principle of distinction in specific cases that need to be thoroughly investigated to draw a conclusion.

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