Reader Post: Israeli War Crimes? The Proportionality Principle Unpacked

scales-of-justice-art-c061b98727a88b2e_FotorThe accusation against Israel

Israel has been accused of committing war crimes. In particular, her attacks on Hamas are considered by many to be disproportionate. Yet while the PA continually threatens to take Israel to the ICC and public opinion has already pronounced judgement, no institution has successfully prosecuted the Jewish State in a court of law.

The concept of proportionality that has consumed public discourse goes something like this. If they shoot at you twice, you can shoot at them two or maybe three times, but not five, six or seven times. You may attack them, even kill them, but not much more than they are attacking or killing you. This is nonsense.

Humanitarian law

The Law of War, also known as International Humanitarian Law (IHL), is captured in agreements like The Hague Regulations of 1907, the Geneva Convention of 1949 and the Rome Statute of 1998. Once two forces engage in battle, each side is obliged to follow the laws of war, even if the other side is morally responsible for the conflict.

The law allows a party to a conflict to use superior weaponry to obliterate enemy combatants and military infrastructure. It recognizes that in any legitimate attack on an enemy target, civilians may die. This is regrettable and tragic as is the very fact of war. But it is nevertheless 100% legal so long as civilians are not intentionally targeted and the principle of proportionality is observed.

The Rome Statute, which established the International Criminal Court, defines a disproportionate attack as:

“intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects…which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated”[i]

As long as the loss of life is balanced with the military advantage secured by the attack, it is legal. What standard is used to make this miserable calculus? How do you judge the advantage of taking out a combatant, a commander or a tank relative to a civilian life? How does a country value the life of its own soldiers relative to civilians on the opposing side? And how does the calculus change if your own children are under attack? Humanitarian law says it comes down to the judgment of a reasonable militarycommander. And the reasonableness of any such judgment can be tested in a court of law.

The civilian casualty ratio approach

One rough measure that is often used in proportionality debates is the civilian casualty ratio. If the number of civilians that die relative to combatants is high, it may signal disproportionate action.

Take a historical example. The US dropped the Atomic Bomb on Hiroshima and Nagasaki in a bid to cower Japan into surrender. In two flashes, between 65,000 and 123,000 people were decimated. In the next four months up to 246,000 people are estimated to have died as a result of the bombs, and many more succumbed to the nuclear after-effects in the months and years that followed.  Civilians accounted for at least 80% of the dead. It yielded Japan’s surrender, and Truman, Churchill and others argued that many more Americans and Japanese would have died had America launched a ground offensive. The United States has not apologised for the decision to use the bomb. Her argument, in essence, is that the loss of life was proportional to the ends achieved.[ii]

civilians-ratio-1

In an extensive study on historical conflicts, William Eckhardt concludes that civilians account for around 50% of global war causalities.[iii]In WW2 civilians accounted for 67% of the dead[iv], hitting 80% with the Atomic bomb. In the Vietnam War the Americans’ achieved 37% to 67% depending on source data used[v]. In the 1989 US Panama Invasion, figures range from 44% to 89%.[vi] The South Koreans secured a 67% ratio in North Korea[vii], and in the Chechen Wars the Russians scored 88%.[viii]

How does Israel compare? Consider the statistics from B’Tselem, a leading NGO focused on Human Rights in the Palestinian territories. They are much criticised for biasing their results against Israel. Nevertheless, the statistics between September 2000 and July 2014 (which includes the 2008/9 Gaza War)[ix] show that civilians in Gaza accounted for an in-precedent 47% of deaths. In Operation Protective Edge, which started on the 8 July 2014, the percentage has been around 53% based on figures released by the IDF. Clearly, these ratios are not excessive when compared to the historical trends in global conflicts.

Note, while the UN has suggested a 70% civilian casualty ratio, it is critical to be aware of four points. First, the accuracy of the UN figures has been strongly challenged by the BBC[x], the NYT[xi]  and Time Magazine[xii]. They show that men between the ages of 17 and 60, the group that is most likely to contain combatants, constitute 75% of the dead yet only 15% of the population. Only 35% of the casualties are accounted for by woman, children and the elderly despite the fact that this group accounts for over 85% of the population, suggesting that claims of indiscriminate bombing are unfounded. Second, the UN statistics are based on data released by the Gazan Health Ministry, which is part of the Hamas “Government”. The Hamas interior ministry instructs that “anyone killed or martyred is to be called a civilian from Gaza or Palestine, before we talk about his status in jihad or his military rank. Don’t forget to always add ‘innocent civilian’ or ‘innocent citizen’ in your description of those killed”.[xiii] Third, the UN itself admits their figures are preliminary and have not been subjected to thorough analysis[xiv]. Fourth, in the 2008/9 Gaza war, Hamas and Gaza-based organizations claimed that only 50 combatants were killed, only to admit years later that the number was actually around 700, a figure nearly identical to the one released by IDF (at 709). [xv] Overall, it is likely that the casualty ratio will end up in the 50% range, as occurred in the last Gaza war.

Total number of civilians killed

If the total number of civilians is considered, as opposed to the ratio, the deaths in Gaza pale in comparison to the other conflicts. The Russians killed over 15,000 civilians in Chechnya. According to the Iraq Body Count, the US-led coalition in Iraq killed 11,013 adult civilians and 4,040 children – more than three times as many civilians as died in both Gaza and the West Bank since the turn of the century. And of course, there is also that atomic bomb.[xvi]

Prof. William Schabas has been appointed to head the latest Human Rights Commission into Israel’s Gaza operations. Asked why similar commissions had not been established for the wars in Iraq and Chechnya (not to mention Syria where an estimated 200,000 people have been killed) he responded that “there are many instances of double standards…the fact that there have not been investigations into certain atrocities in certain places can be explained by the political balance and the relative strength of the players.”[xvii] At least we are all clear.

Three core mitigating factors

Alas, the Professor’s Commission of Inquiry is not a court of law. In formal legal proceedings, three factors would serve to further mitigate Israel’s responsibility for its entirely ordinary civilian casualty ratio.

Factor 1: valid military objective

First, Israel’s military objective will weigh heavily in any formal proportionality calculus. To be clear, Israel’s homeland is under military attack. And Hamas runs an army of war criminals that targets civilians as its modus operandi.

  • Suicide bombings, which target civilian buses and restaurants, have already killed hundreds of Israeli civilians. Hamas proudly takes responsibility for the attacks.
  • Since 2001, over 15,000 rockets and mortars have been fired indiscriminately on Israeli cities.[xviii] Hamas sternly declares that every civilian is a legitimate target. Now, nearly 100% of Israel’s population is within the range of increasingly sophisticated rockets.
  • Recently, commando sea-diving units have landed on Israeli beaches, armed to the hilt ready to inflict untold damage on civilians had they not been spotted by the IDF.
  • Hamas dug military tunnels from under Mosques and homes within Gaza directly into the dining halls of Kibbutzim and the yards of private homes within Israel. The world has seen video footage of Hamas fighters popping up like moles in Israeli territory. Hundreds of civilians may have been killed had Hamas launched a synchronised attack through all the tunnels. These tunnels needed to be destroyed, and that required a ground offensive.

Putting a stop to Hamas’s incessant attacks against Israel is an entirely legitimate military objective even if Israel is responsible for the overall Israeli/Palestinian conflict. So it is not even necessary to flash Israel’s trump card: that Israel pulled every Jew out of Gaza in 2005 (all the way back to 1967 borders). And it is not necessary to point out that Israel imposed the blockade on Gaza after Hamas, who is sworn religiously and politically to her destruction, was voted into power and after Hamas had already launched thousands of rockets into Israel.[xix]

Factor 2: IDF policy of minimising civilian loss

Second, Israel has an explicit policy of minimising civilian loss of life. The IDF calls off airstrikes when it is clear that the civilian loss of life will be too high.[xx] Further, Israel gives the population numerous evacuation warnings, including hundreds of thousands of leaflets, phone calls, text messages and warning shots. [xxi]

Factor 3: human shields

Third, Hamas uses human shields. A human shield violation does not require that a combatant actually shield his body with a human being. The Geneva Convention states that “the Parties to the conflict shall not direct the movement of the civilian population” or use “the presence or movements of the civilian population to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks”.[xxii] Thus defined, it is indisputable that Hamas can add this war crime against their own civilians to the one they already commit against those in Israel.

In response to the evacuation messages sent by the IDF, the Interior Minister of Hamas went on national television to declare, “We call on Gaza residents not to pay attention to these messages and not to leave their homes.”[xxiii]

Additionally, there is now extensive video footage showing Hamas rockets being launched from densely populated areas.[xxiv] Hamas have fired 30 rockets from UN facilities, 126 from hospitals and Medical Clinics, 50 from children’s playgrounds, 331 from Mosques and 248 from schools including those housing Gazans seeking shelter[xxv].

John Ging, who served as head of the UNRWA in the Gaza Strip stated on July 31 2014 that “the armed groups are firing their rockets into Israel from the vicinity of U.N. facilities and residential areas, absolutely….so the combat is being conducted very much in a residential, built-up area.”[xxvi] One IDF video shows militants shooting out of a Waffa hospital window, and the Washington Post correspondent in Gaza reported that Shifa hospital “has become a de facto headquarters for Hamas leaders, who can be seen in the hallways and offices.” Clear footage of Gaza militants using UN ambulances is also readily available.[xxvii]

And note, there are plenty of large open areas in Gaza, which could be used to store weapons and launch rockets. According to the CIA, over 20% of Gaza consists of farmland[xxviii], not to mention the non-arable open spaces. Spend one minute zooming in on Gaza using Google Earth to confirm this for yourself.

Hamas deliberately embeds its military infrastructure in the most densely populated civilian neighbourhoods in Rafah, Gaza City and Kahn Yunis. In one of its military manuals, it describes these civilian areas as “pockets of resistance” where “it is difficult for them [Israel] to get the most use out of their firearms, especially of supporting fire” as they must “limit their use of weapons and tactics that lead to the harm” of civilians.[xxix]

Of course, the corollary of this strategy is that Israel does limit its fire (factor 2). Moreover, every child that is killed in Gaza – even from Hamas’s own rocket fire[xxx] – yields condemnation against Israel from across the globe such that now Israel faces unprecedented diplomatic and economic (BDS) pressure.[xxxi] It is no exaggeration that isolating Israel is the most effective weapon Hamas can deploy.

Why would Hamas suffer the death of its children for this advantage? Because they revere suicide and death as a means of fighting the “Zionist occupation”. There is no shortage of documentation and video footage ([xxxii] [xxxiii] [xxxiv] [xxxv]) to show the extent to which the ideology of Shahada, death for Allah, is promoted to society in general, and to children in particular. Little boys and girls declare on television, in plays, in songs, in schoolbooks and magazines “we want to die as martyrs”.[xxxvi] The Hamas MP, Fathi Hammad, declared on Al-Aqsa TV, that Palestinians had “created a human shield of women, children, the elderly and the Jihad fighters against the Zionist bombing machine, as if they were saying to the Zionist enemy: We desire Death, as you desire Life.”[xxxvii]

The law is clear. Hamas bears legal and moral responsibility for the death of every human being used as a human shield. And while the use of human shields does not remove Israel’s responsibility to avoid civilian causalities where possible, the fact that Hamas employs this strategy explains why Israel has not achieved even lower civilian casualty ratios.

The Palestinians admit they have no case

The Palestinian Representative to the UN Human Rights Council, Ambassador Ibrahim Khraishi, was recently asked by Palestinian TV (July 9th interview) why the PA does not take Israel to the International Criminal Court (ICC). His answer was that the Palestinians would certainly be indicted for war crimes as “each and every missile launched against Israel constitutes a crime against humanity, whether it hits or misses, because it is directed at civilian targets”. In contrast, he continues, Israel “follows legal procedure” through providing extensive warnings to civilians. He concludes, “therefore people should know more before they talk emotionally about appealing to the ICC”.[xxxviii] We agree.

Summary

It is highly unlikely that Israel is violating the proportionality principle, given a) the legitimate military objective of responding to criminal attacks on her homeland and civilians, b) the standard civilian casualty ratios observed compared to historical conflicts, c) the IDF’s explicit policy of minimising civilian deaths, d) the advance warnings given by the IDF and e) Hamas’s insidious use of human shields. On the other hand, there can be only certainty that Hamas is guilty of war crimes, both for intentionally and indiscriminately targeting Israeli civilians and for hiding behind the Gazan people.

Robert Lipschitz is the director of an economics consultancy specialising in antitrust law. He lives in Jerusalem, with his wife and daughter.

You can follow Robert on his blog here http://jewishmindblog.com

About Robert Lipschitz

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  • Norman_In_New_York

    Another problem hinges on the definitions of civilians and enemy combatants. In my opinion, not every enemy combatant bears firearms or other lethal weapons. I consider propagandists to be enemy combatants and therefore legitimate targets, as well as Hamas chiefs hiding out in Qatar, something for the legal hairsplitters to consider.

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