The latest round of fighting in Gaza once again raises questions about what measures are permissible and what are forbidden in times like these. Legal discussion of the subject is based on three main principles: the principle of distinction which requires to distinguish between civilians and combatants and to attack only combatants and military targets; the duty to take precautionary measures to avoid hurting civilians; and if a military target is being hit but civilians are liable to be harmed, this is illegal unless the harm to civilians is proportionate to the concrete and direct military advantage expected to result from the attack.
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Clearly, the first principle is not being followed by Hamas, which is indiscriminately firing rockets into Israel with the intention of harming the civilian population. It’s easy to say and prove without going into a complicated discussion that with this rocket fire Hamas is committing war crimes. The positioning of the rockets and rocket launchers in the midst of a civilian population is also unacceptable, and if Hamas is using civilians as a human shield, this is a war crime.
But bear in mind that it’s not just deliberate targeting of civilians that is prohibited. Strikes that by their nature will indiscriminately harm civilians, or civilian objects, alongside military targets, are also forbidden. Moreover, military strikes aimed solely at a military target but which hurt civilians may be prohibited if precautionary measures were not taken, or if the amount of expected civilian casualties is not proportionate.
Although each instance must be separately and carefully examined, the data that indicates that many of the casualties in Gaza are civilians, combined with some reports about the circumstances in which these civilians died, raises the prospect that Israel has committed forbidden actions, some of which could possibly be defined as war crimes. The quantity of these cases makes it very difficult to absolve them based on arguments of “inaccuracy” or “error.”
According to the figures published to date, more than a fifth of the dead in Gaza are children, and many more are civilian noncombatants. Certain instances are particularly troubling: The deaths of eight Palestinians who were watching the World Cup at a café appears to be an attack on a civilian target. For even if a Hamas or Islamic Jihad militant being targeted by the army was in the café, a strike on a crowded civilian café ostensibly seems to be an indiscriminate attack on a civilian target.
Another example is the late-night bombing of a residential building in Beit Hanoun, which killed five members of the Hamad family, including a 16-year-old girl. Although the target – the sixth person killed in the strike – was an Islamic Jihad commander who lived there, this case also sets off a warning light as being an attack on a civilian target. Even if the IDF’s claim that the building was being used as an Islamic Jihad command center (and was therefore a legitimate military target) is accepted, the strike still caused disproportionate harm to civilians.
In another instance, eight civilians, including six children ages 8-13, were killed in a strike on the Kawara family home. As Amir Oren wrote here on Friday, the IDF is not only striking buildings used to store rockets and as launching pads, but the houses of the families of Hamas commanders. These cases are troubling and raise the question: What would Israel say about an attack on the civilian residence of an IDF battalion commander, killing the civilians living there? If such an act is illegal, then so it what is being done in Gaza. That is, unless Israel can prove that each of these buildings was making an effective contribution to the Hamas military effort at the time it was attacked. In this context, it bears noting that the issuing of a warning to civilians living in the building (which, based on the reports, has only been done some of the time) does not relieve the army of responsibility. Not just because the warning time is short and not always long enough for the occupants to vacate the house, and not just because, often, the civilians have nowhere to run to – but because it does not alter the fact that this is a civilian target that shouldn’t be attacked to begin with.
Not every forbidden action in the rules of war amounts to a war crime. But the multiple instances of civilians being killed gives rise to the fear that, as Alterman put it in 1948, we are again “Mumbling ‘necessity’ and ‘revenge,’ are being forced into the war criminals’ arena.” But unlike in 1948, when Ben-Gurion praised Alterman and instructed that the poem be distributed to every IDF soldier, now we have a broad wall of silence: Most of the media avoids reporting on these instances, and meanwhile we are seeing a worrying number of civilian casualties.