Tuesday, 30 December 2008

Proportionality: international law and practice, Hamas' behavior, Israeli conduct

"This is the destiny of democracy, as not all means are acceptable to it and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand."

Source: O Diplomata (information supplied by the Ministry of Foreign Affairs of Israel)

On the Issues of Proportionality

International law

A military target remains a legitimate military target, even if it is located in a civilian area.

"Civilians do not enjoy absolute immunity. Their presence will not render military objects immune from attack for the mere reason that it is impossible to bombard them without causing injury to the non-combatants."
Oppenheim's 'International Law'

The use of civilians as shields to try to prevent attacks on military targets is prohibited.

"The presence of a protected person may not be used to render certain points or areas immune from military operations."
Fourth Geneva Convention, Article 28

The armed forces are not liable where injury to civilians results from unavoidable collateral damage, provided it is proportionate to the military gain expected of the attack.

"Although they are not military objectives, civilians and civilian objects are subject to the general dangers of war in the sense that attacks on military personnel and military objectives may cause incidental damage… Members of the armed forces are not liable for such incidental damage, provided it is proportionate to the military gain expected of the attack."
Major General A.P.V. Rogers, a former Director of the British Army Legal Services

Terrorist organizations that hide behind civilians bear the primary responsibility for civilian casualties.

"Should civilian casualties ensue from an attempt to shield combatants or a military objective, the ultimate responsibility lies with the belligerent placing innocent civilians at risk."
Dinstein,' Conduct of Hostilities under the Law of International Armed Conflict'

The correct party to assess the proportionality of a military action is the military commander in the field.

"It is unlikely that a human rights lawyer and an experienced combat commander would assign the same relative values to military advantage and to injury to noncombatants.… It is suggested that the determination of relative values must be that of the 'reasonable military commander'."
Committee Established to Review NATO Bombings in Yugoslavia

The security of one's own forces is a relevant consideration in gauging proportionality.

"The concept of military advantage involves a variety of considerations including the security of the attacking force."
Bothe, Partsch and Solf, 'New Rules for Victims of Armed Conflict'

International practice

The above principles of the law of armed conflict have been adopted as the basis of military guidelines by most states. The following examples of military manuals are typical:

Australian Defence Force Manual:
The presence of non-combatants in or around a military objective does not change its nature as a military objective. Non-combatants in the vicinity of a military objective must share the danger to which the military objective is exposed.

Belgian Teaching Manual for Soldiers:
Objects occupied or used by enemy military forces are military objectives even if these objects were civilians at the outset (houses, schools or churches occupied by the enemy).

German Military Manual:
The term "military advantage" refers to the advantage which can be expected of an attack as a whole and not only of isolated or specific parts of the attack.

France's Law of Armed Conflict Manual:
The application of the principle of proportionality does not exclude that collateral damage may be suffered by the civilian population or civilian objects provided they are not excessive in relation to the concrete and direct military advantage anticipated.

Spain's Law of Armed Conflict Manual:
The principle of proportionality… is based on recognition of the fact that it is difficult to limit the effects of modern weapons and methods of warfare exclusively to military objectives and that it is likely that they will cause collateral damage to civilians and civilian objects.

Israel - IDF Operational Planning and Orders:
In cases where there is doubt as to whether a civilian object has turned into a military objective ... one is to asusme that is not a military objective unless proven otherwise.

Even when it is not possible to isolate the civilians from an assault and there is no other recourse than to attack, the commander is required to refrain from an attack that is expected to inflict harm on the civilian population that is disproportionate to the expected military gain.

Hamas' behaviour

Hamas' modus operandi is characterized not only by deliberate attacks on Israeli civilians, but also its disregard for the lives of Palestinian civilians. Making no attempt to comply with the humanitarian obligation to distinguish combatants from civilians, Hamas terrorists wear civilian clothes and hide weapons and fire missiles from the heart of populated civilian areas.

In recent months, the Hamas controlled media in Gaza has publicly called for civilians to act as human shields in an attempt to prevent terrorist leaders and infrastructure from being targeted.
The following are but a few of the documented examples of calls in the Hamas controlled Gaza media for Palestinians civilians to serve as human shields:

- Hamas’ Al-Aqsa TV called upon children to form a human shield at the home of a terrorist in the a-Shouqaf quarter of Sajaiyeh in order to protect the building from an anticipated IDF air strike (March 1).

- Al-Aqsa TV News broadcast a story about how a crowd of civilians gathered on the roof of Abu Bilal al-Ja’abeer in the Northern Gaza strip, used for launching terrorist attacks, in order to cause the IDF to abort a threatened air strike against the structure.

- Al-Aqsa TV called upon the Palestinians in the northern Gaza Strip to go to the house of terrorist Othman al-Ruziana in order to protect it against an anticipated air strike (February 29, 2008).

- Al-Aqsa TV called upon the residents of Khan Yunis to gather at the house of Ma’amoun Abu ‘Amer due to an anticipated air strike. (February 28, 2008). An hour later dozens of Palestinians from Khan Yunis were reported to have gathered on the roof of Abu ‘Amer’s house to serve as human shields to prevent the house from being hit (Pal-today Website, February 29, 2008).

Israeli conduct

Israel makes significant efforts to avoid or minimize civilian casualties, by ensuring that its attacks are directed against legitimate military targets, and that in conducting its operations incidental injury to civilians is kept to a minimum. Every potential military operation is considered on an individual basis in order to ensure that it meets the test of proportionality.

In practice this means many proposed military operations are rejected when it appears that the likelihood of collateral damage to civilians and their property is too high. As Israel's High Court of Justice has held, in reviewing Israeli security actions:

This is the destiny of democracy, as not all means are acceptable to it and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand.


Bunc said...

An excellent post summarising the real issues in regard to the proportionate use of force in armed conflict. To read some commentators one would think that there is some law that says you can only kill as many as the other side has done.

Hamas tries to argue that because their rockets have only killed a few civilians then somehow the Israelis should limit themselves to only the causing the same level of casualties. This is patent nonsense.

The real difference is that Israel, currently, is not deliberately targeting civilians whereas the Hamas rockets and suicide bombs clearly do.

Israel is very cuplable in the conflict overall but in it's response to the rocket attacks is doing what any state would do in those specific circumstances.

Chas Newkey-Burden said...

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Anonymous said...

Kol hakavod for this article - very clear and comprehensive

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