“Collateral Damage”?
20 May 2021
In its current round of bombing in the Gaza Strip, Israel has killed more than 200 Palestinians to date, about half of them women and minors under the age of 18. Hundreds of homes and other structures have been destroyed, electricity and water networks impaired and roads damaged, and tens of thousands have had to abandon their homes. Despite these figures, Israel continues to claim all its actions are in keeping with international humanitarian law and that it is taking every possible measure to avoid harming civilians. These claims are baseless. According to “the principle of proportionality”, a basic tenet of international law, parties to hostilities should refrain from launching an attack if the expected harm to civilians is excessive in relation to the anticipated military advantage. Of course, this principle is relevant only if the attack is aimed at a legitimate military objective – otherwise, it is unlawful from the outset, regardless of the expected “incidental damage.”
The principle of proportionality is amorphous. Meeting it requires making predictions based on assessments and partial information and striking a balance between virtually incomparable elements. Moreover, while international law requires the military advantage to be “concrete and direct,” it offers no definition of what that is, nor of what constitutes “excessive” harm to civilians. Given this complexity, applying this principle is not simply a matter of cold legal analysis but involves moral considerations as well. Any interpretation that reflects the spirit of international humanitarian law would be considered legitimate. The interpretation Israel offers, however, does not. It is unreasonable, legally erroneous and morally bankrupt.
One reason for this conclusion is that Israel bombed dozens of Gazan homes with their inhabitants inside in 2014, during Operation Protective Edge. Home after home, family after family – and, after 50 days, more than 500 people killed under the age of 18. Although the horrifying outcome was clear within days, Israel pursued this policy until the fighting ended, meanwhile claiming it was doing everything in its power to reduce harm to civilians.
When the fighting was over, the military law enforcement system employed its usual protocol for whitewashing suspected violations of international humanitarian law. The Military Advocate General ordered a handful of investigations, some into cases of homes bombed with the inhabitants inside. The investigations were closed with no further action after the MAG established, among other things, that the military had upheld the principle of proportionality: “When the decision was made to attack, the operational prediction was that the scope of expected incidental harm would not be excessive in relation to the anticipated military advantage.”
The MAG’s conclusion relied on a handful of strikes examined separately and without context. On this basis, he determined that the assessment that civilians would not be harmed, despite the glaring outcome of dozens of almost identical attacks over 50 days of fighting, was reasonable. Yet this interpretation – which is likely guiding the military in its current bombing of Gaza – makes no demand upon those responsible for the attacks to take every measure to avoid harm to civilians. On the contrary, it sets an extremely low bar for evaluating their decisions, taking into account only what they knew and not what they should have known given the circumstances. This interpretation empties the principle of proportionality of any real meaning.
In the current fighting, Israel has stated it warns civilians before launching an attack, shielding them from further harm by giving them time to vacate their homes. This is true of a few cases only, such as the airstrikes on high-rises in central Gaza City. In many other cases, Israel has not warned the residents – which explains the high death toll from bombings in recent days, including entire families killed within their homes.
When pressed, Israel blames Hamas for the harm to civilians and emphasizes its own efforts to take every possible measure to avoid or minimize such harm. If the warnings achieve their purpose and civilians are not harmed – Israel cites this as evidence of its caution. Yet if civilians are harmed – whether they received prior warning or not – Israel lays the blame squarely on Hamas for “using civilians as human shields”.
Clearly, this interpretation cannot be considered reasonable. It voids the state’s obligation to do everything in its power to ensure that civilians are not hurt, freeing Israel to act unimpeded, whatever the cost, while shirking responsibility for the outcome. Moreover, it focuses exclusively on the purported intentions of decision-makers – which cannot be examined without official information – while utterly ignoring the results of their actions, even when they are predictably lethal. The bombs and missiles that are currently killing Palestinians in Gaza and damaging their property are being dropped by Israel. Its refusal to change its policy despite the recurring lethal outcomes is why Israel, and Israel alone, is responsible for this harm.
