Every war is tragic. Every civilian death is a whole lost world. However, when the legal discourse is applied to a war, the legal terminology, the resulting concepts and conclusions must be implemented with precision.
A common misconception in the public perception of the law applicable to armed conflicts concerns the term “proportionality”. In particular, it is the argument that the proportional use of force is a game of numbers, that it is enough to compare the number of victims on each side of the conflict to deduce which of them used the force disproportionately. From a legal point of view, this notion is completely flawed and, in fact, illogical. If that were true, many NATO operations would have been guilty of being disproportionate and illegal.
The universally accepted principle of proportionality is defined as the obligation to refrain from “any attack that may cause accidental loss or injury to civilians, or damage to civilian objects, that is excessive in relation to the anticipated direct and concrete military advantage”.
What does this mean in practice? At first, it may be useful to emphasize what “proportionality” does not mean: clearly, it does not approach victims in a collective manner regarding the entire conflict, but rather, it refers to specific attacks; it deals not only with victims and civilian damage, but also with the intended military advantage; and it is not examined retrospectively, but before the attack takes place.
The principle of proportionality essentially means that, before each military attack, military commanders must assess two factors.
First, they must examine the direct and concrete military advantage anticipated from an attack, when, of course, neutralizing some targets would have a greater advantage than others. To begin, to offer this advantage, the target must be a military target, such as an arms depot, a command and control center or the opponent’s Armed Forces. It is important to note that an apparently civilian object used by the adversary for military purposes (for example, a residential building or a religious center used to store weapons) can be considered a legitimate target.
Second, commanders must assess, based on information reasonably available at the time of the attack, what would be the expected incidental loss of civilian lives or property (collateral damage). The military commander assesses how many civilians, if any, will be present in the area of the planned attack. They then assess the extent of the expected damage to civilian property, including indirect damage that should be accounted for, as long as it is reasonably expected, such as infrastructure, agriculture, etc. Finally, the military commander must implement all practicable precautions to mitigate damage to civilians and civilian objects.
Based on these assessments, the commander must balance these two components and decide whether to carry out the attack. If the assessment leads to the conclusion that the expected damage to civilians or civilian objects is considered excessive in relation to the expected military advantage, the attack would be illegal.
It follows that not all deaths of civilians in armed conflicts are necessarily considered to be a violation of international law. This principle of proportionality is the way that the law, which was created by the states, considered adequate to balance the military needs of the states that fight to protect civilians, with the humanitarian imperatives.
Moving from theory to practice, how is the principle of proportionality affected when, instead of protecting its civilians, Hamas intentionally conducts its military activity from within densely populated areas? What’s more, how is Israel expected to protect its main cities from Hamas rockets when these projectiles are developed, built and launched from within Gaza’s civilian population? Hamas is committing a double war crime – endangering Israeli civilians by targeting them and endangering Gaza civilians by using them as human shields. What does international law require Israel, a law-abiding state, to do in addressing Hamas’ illegal tactics against the people of Gaza and Israeli civilians?
The Armed Conflict Law clearly states that when the presence of civilians is used to protect military objectives from attack, that presence does not grant immunity to the target. That is, when Hamas commits the double war crime of attacking Israeli children, schools and airports from within its own civilian population, the analysis of the situation is distorted if Hamas’ criminal behavior is not taken into account.
Despite Hamas’ blatant disregard for the law or the well-being of its citizens, Israel does everything possible to prevent or at least minimize damage to the Palestinian civilian population, often at the expense of an operational advantage. In doing so, Israel employs precautions that go beyond the requirements of international law, as well as practices commonly employed by advanced military personnel from Western states. Fighting an enemy who deliberately abuses the Armed Conflict Law in the most cynical way poses serious challenges for Israeli soldiers. However, Israeli commanders strictly apply international law, including the principle of proportionality in all military actions.
To conclude, one must ask why Hamas uses its own population as a human shield. The answer takes us back to the beginning of this article – the misunderstanding of the concept of proportionality and the automatic reaction that ignores the question of who put Gaza’s civilians in danger in the first place. In other words: Hamas pays no price for its war crimes against its own civilians and, in fact, it is often Israel that is unjustly guilty. This situation encourages Hamas to continue its heinous practices.
Even with the announcement of a ceasefire, the questions raised here are still relevant. The main problem of the Gaza Strip and the Palestinian side has not been solved: religious fundamentalism of Hamas and Islamic Jihad and the denial of the existence of the State of Israel, in addition to the incitement and indoctrination of the generations against the idea of peaceful coexistence with Israel. A new attitude towards the Gaza Strip will be needed. To resolve the issue in the long run we will need to abandon the old paradigms – they will not be enough to bring peace
TRENDS / DISCUSSIONS
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