JERUSALEM — The international laws governing war are callous. They give more priority to military advantage than harm to civilians. They do not take into account comparative figures of deaths or injuries.
They ask commanders in the field to assess, often very quickly, the military advantage of an attack, the nature of the threat they face, the means they have to counter it, and what feasible measures they can take to reduce the anticipated harm to civilians and civil infrastructure.
This complicated calculation, known as “proportionality,” is extremely flawed because it balances incompatible things, lawyers explain. And each attack must be evaluated separately, to decide whether it falls within the limits of a legal act of war.
“The law of war is cold,” said Emanuela-Chiara Gillard, a research associate at Chatham House, a think tank in London, who previously worked as a lawyer for the Red Cross and the UN. She does not address, “our concerns and moral outrage over civilian deaths,” she adds.
After Hamas invaded Israel and killed some 1,200 people, Israel retaliated vigorously. But the images of devastation in Gaza and the enormous asymmetry in deaths have generated outrage in the Arab world and in the West.
However, in war, symmetry and proportionality are not related.
Proportionality is a key component in determining the legality of an act of war. Lawyers said it is not merely a matter of fairly balancing the number of deaths. It is a question of determining whether, at the time the decision is made to launch any attack, the expected military advantage outweighs the anticipated harm to civilians once feasible measures are taken to reduce it.
However, there is no consensus on how to make such a comparison.
An example is the Israeli attacks on or near hospitals and schools: were the buildings actually used for military purposes, and were proper warnings given before an attack? Has Israel done enough to protect civilians?
Many diplomats, UN officials and human rights groups argue the answer is no. Some have called for investigations into possible war crimes.
However, civilian deaths are a political issue, not a legal one, said Daniel Reisner, former director of the Israeli military's international law division. “The death toll on both sides is tragic, but if you limit the debate to legality, the numbers are not what is measured. “It’s why they died and under what circumstances, not how many of them died.”
Israel claims that around 1,200 people were killed and 240 more were taken hostage in the Hamas-led terrorist attacks on October 7. Gaza health officials say nearly 20,000 Palestinians, many of them women and children, have been killed in Gaza, which is under Hamas control.
Indeed, the sheer number of civilian deaths, more than in any previous conflict in Gaza, altogether raises questions about whether Israel's calculations of proportionality have changed in this war.
Israeli officials insist that their proportionality standards have remained constant.
Hamas is also obliged to respect the laws of war, said Cordula Droege, legal director for the International Committee of the Red Cross.
“If you choose to wage war, you still have to respect exactly the same rules of international humanitarian law as a party to the conflict,” he said.
Two elements determine proportionality. The first is the legality of the campaign, which must correspond to the size of the threat. When it comes to Israel's war against Hamas, the law is clear, Gillard noted. Given the magnitude and nature of the October 7 attacks, Israel has the right to self-defense that may include the goal of destroying Hamas.
The second element judges each attack on its own merits, whether the planned bombardment of a target or a commander's quick decision during an exchange of fire, and is more complicated.
Proportionality is defined as a matter of judgment at the time, not in retrospect. Is the risk to civilians excessive in relation to the anticipated military advantage? This favors the military advantage, since the civil risk is taken for granted and it is enough that it is not “excessive.”
The other key legal principle is “discernment.” Has an Army sought to be discerning, attacking only combatants and military targets while seeking to avoid harm to civilians? Deciphering that requires research that cannot be carried out in the frenzy of battle, and such criteria are particularly difficult in urban guerrilla conflicts, when fighters like Hamas live among the civilian population and take refuge there.
Omar Shakir, Israel and Palestine director of Human Rights Watch, agrees that proportionality is difficult to assess without a detailed investigation of the facts. But he argues that the overall civilian death count, the use of powerful weapons in densely populated neighborhoods and attacks on hospitals where civilians are sheltering “raise serious questions” about whether Israel has committed war crimes.
Human Rights Watch does not judge the legality of the entire campaign, only of individual military attacks. “Numbers definitely matter in providing an indication of overall trends, and a high proportion of deaths among women and children is indicative,” she said.
Although Israel has a duty to try to evacuate citizens, “too often there is an assumption that when evacuation orders have been given, anyone left behind is a target,” Shakir noted. “You can’t treat refugee camps as free-range shooting zones.”
However, what matters is not the evacuation itself but “the conditions surrounding it,” Droege said.
Right from the start of the war, there was “the imposition of a siege on the entire Gaza Strip,” he declared. That meant “that the population was, and continues to be, deprived—at first completely and now almost completely—of food, water, fuel, light and medical supplies, and we do not consider that depriving an entire civilian population of essential goods for its survival is compatible with international humanitarian law,” he added.
Hospitals are particularly protected sites under the law, and the burden falls on Israel to present evidence to show that Hamas turned them into legitimate military targets. Israel claims that the hospitals are a labyrinth of Hamas tunnels. Israeli officials say they have repeatedly warned hospital staff to evacuate.
Reisner said there is no one measure that can be the common denominator for calculating military advantage against harm to civilians.
“No one knows how to solve that equation,” he said. “But it's better to have a bad rule than to have no rule at all.”
By: STEVEN ERLANGER
BBC-NEWS-SRC: http://www.nytsyn.com/subscribed/stories/7039949, IMPORTING DATE: 2023-12-21 21:45:04
#Civilian #deaths #legality #war