Global outrage about the deaths of nearly 1,900 Palestinians now focuses on the alleged disproportionality of Israel’s attacks. For some, the word “disproportionality” simply means huge, for others excessive, but for an increasing number it is the code word that they hope will trigger a charge of war crimes against Israel in the International Criminal Court (ICC) in the Hague.
Speaking two days ago at a commemoration of the start of the First World War, France’s foreign minister, Laurent Fabius, said that Israel’s “killing of children and slaughter of civilians” was unjustified and demanded that a political solution be imposed by the international community.”
In parallel with this, senior British lawyers have attempted to initiate an ICC investigation into Israel’s “crimes” in Gaza, including the shelling of homes, hospitals and schools.
And now the Palestinian Authority is poised to join the ICC so that such an investigation can be carried out.
In the discussion that will follow, disproportionality and the intentional targeting of the innocent will rank high on the roster of complaints. Is there any merit in either charge?
To determine legal guilt by arguing over numbers is abhorrent, but is made necessary by the ease with which the language of sentiment (to put it at no more than that) is overshadowing the language of facts.
According to Gazan officials, 1,867 Palestinians were killed during the course of Operation Protective Edge. This presumably does not include the 30 Palestinians assassinated by Hamas last weekend as “suspected” but unproven accomplices of Israel—a disproportionate figure that is self-evidently a war crime but which UK lawyers appear unconcerned by.
A breakdown of gross figures shows that Israel fired at 2,866 legitimate war targets. Of these, 1,678 were rocket launchers and storage facilities, 191 were rocket production facilities, and 997 were command and control centers. Compared with the 1,867 deaths caused by these attacks, this is a death rate—to put it in the starkest terms—of two thirds of a person for each target destroyed, perhaps the lowest death rate in the history of modern warfare.
On a comparison of Palestinian civilian-to-combatant deaths, the ratio currently stands at about 1:1. Of the combatants, 253 belonged to Hamas, 147 to Palestinian Islamic Jihad, and 603 were militants whose affiliations have not yet been established. This contrasts with higher civilian-to-combatant death ratios of between 3:2 and 2:1 in the Second World War, 2:1 in the Korean War and Vietnam War, and 10:1 and 4:1 in first and second Chechen Wars. The ongoing death rate in Iraq between 2003 and 2013 stands at 3:1.
During hostilities in Gaza between 2006-2007, according to B’tselem, 816 Palestinians were killed of whom 360 were civilians, giving a ratio of 1:225. By contrast, between 2000 and 2005, 773 Israeli civilians were killed in Palestinian attacks, resulting in a ratio of approximately 5:1.
By any standard, the ratio of civilian to combatant deaths caused by Israel is not only not excessive but below other comparable measures.
IDF figures for the current conflict show that 597 or 18% of all rockets fired by Gazans were launched from civilian facilities abused by terrorists, compared with no rockets fired from civilian facilities by Israel—a disproportionate percentage on Hamas’s part that calls for criminal investigation.
In a different theatre of war, the people of Syria have been dying “in greater numbers than anyone can accurately count”, the BBC reported two weeks ago, with 700 people killed in fighting between government forces and Isis rebels around Homs on July 17 and 18—“more than in any other two-day period in Syria’s entire civil war”.
Israel’s Operation Protective Edge has lasted four weeks, giving a ratio of approximately 225 civilian deaths per week. Were this death toll to be maintained over a year, the total would come to 11,700. In Syria, where hostilities have continued for three years, the gross death toll had already topped 162,000 by last May and has risen by another 10,000 in the two months since then.
No call has been made for a war crimes inquiry in respect of Syria.
War is unspeakable, and every loss of life, every mutilation, every grief, is an insult to the sanctity of life. To have to argue about deaths in terms of raw data is repugnant. But this is the language that Kirsty Brimelow QC, the chair of the UK’s Bar Council’s human rights committee, and her co-signatories from among the ranks of senior British barristers and law professors, will have to engage in when they pursue their claim against Israel at the ICC.
To show that they are not simply prejudiced or emotional, they will have to establish what a reasonable death rate in Gaza would have been, in order to prove that actual figures are disproportionate.
They will have to calculate what the appropriate ferocity of Israel’s response should have been, amortised over a specified period of time, in relation to an accurate calculation of the level of actual and potential threat caused by Gazan militants.
They will have to define—in response to repeated claims—the number of times (none) that Israel specifically chose to target people rather than buildings, in order to challenge the defence that an attack on a site is permissible under international law if military forces have embedded their weapon systems and fighters on civilian sites.
They will also have to demonstrate the tangible benefit of bringing in peacekeepers from the UN or NATO. This will require that they establish accurate figures from previous interventions. Such figures are not easy to determine. NATO has said that its intervention in the Kosovan War in 1999 achieved a civilian-to-combatant kill ratio of 1:10, whereas the Serbian government put the ratio at 4:1, a figure agreed by the military historian Michael Oren.
With no one able to reconcile these opposing claims, a working ratio of 1:1 is usually taken. This corresponds to the actual ratio of Gazan deaths that the current conflict has produced. The benefit of imposing a “political solution” is therefore far from clear.
Those of us who still retain a semblance of mental balance are not only shocked by the actual death count but by the cynicism of Hamas’s policy of putting its own electorate at risk, advising Gazans not to vacate their homes in anticipation of Israeli rocket attacks, mining civilian buildings in order to enhance the destructive effect of those rockets, siting rockets and launchers in and around UN buildings (quite possibly with UN connivance), talking openly of wishing to sacrifice their children’s lives for their cause, and welcoming the results of such sacrifices because of the ignominy then heaped on Israel by outsiders.
We therefore watch with interest as proponents of an international trial against Israel start to prepare their case.
Meanwhile, we wonder how long Gazans will go on supporting their elected government. According to the BBC there are no complaints. Its reporter Orla Guerin was seen on BBC television yesterday asking Gazans if they wished to criticise Hamas’s conduct of the war. No one did. That’s definitive then.