Shrill accusations abound that Israel is “collectively punishing” the “civilian” population of Gaza and is “indiscriminately” killing Palestinian civilians. Unwittingly, these pseudo-legal claims are co-opting terms of art under the Laws of Armed Conflict and accusing Israel of violation of Distinction, a core jus in bello principle. However, a careful and objective consideration of the law and the facts on the battleground will demonstrate conclusively that Hamas – and not Israel – is the warring party violating this most important concept of the Laws of War.
Distinction is the most important concept an army must observe. Article 48 of Additional Protocol I of the Geneva Conventions states that “parties to the conflict” must always distinguish between civilians and combatants. Attacks can only be “directed” against combatants, and not against civilians. A corollary duty applies to civilian objects. Article 51 says that civilians and their objects cannot be the “object” of an attack “unless and for such time as they take a direct part in hostilities.”
Additionally, there is an active requirement under Article 51 on combatants to distinguish themselves as such, by wearing distinctive uniforms, basing themselves far from civilian population centers and not launching attacks out of civilian areas. Article 44.3 reiterates this last obligation, to “promote the protection of the civilian population from the effects of hostilities…” Article 58 obligates each party to remove its own civilians “from the vicinity of military objectives,” to avoid locating military objectives near civilian areas, and to take measures to protect their own civilians from harm.
Article 51(4) spells out what is actually prohibited: “indiscriminate” attacks on civilians, i.e. those not “directed at a specific military objective,” or attacks employing means that can’t be accurately directed at military objectives or means the effects of which “cannot be limited as required by this Protocol.”
Distinction and Proportionality often intertwine, and Article 51(5)(b) clarifies that the Laws of War do not envision or expect the total elimination of civilian casualties. Therefore, an attack is indiscriminate and violative of Distinction not if it results in incidental civilian casualties, but only if the “expected…incidental loss of civilian life, injury to civilians, damage to civilian objects…would be excessive in relation to the concrete and direct military advantage anticipated.” Professor Gary Solis makes clear that a military target can be attacked, even “knowing that [civilians] will inevitably be killed….this is not a violation of distinction. Any civilians killed or wounded are collateral to the attack on the legitimate target…To hold otherwise, that no objective is lawful if civilians might be killed within that objective, would preclude virtually all military targeting.”
The International Criminal Tribunal For Yugoslavia spelled it out more clearly by stating an attacker only violates Distinction if it willfully attacks a target, “intentionally in the knowledge that…civilians…were being targeted…” Professor Michael Walzer clarifies that Distinction is not absolute, and “Civilians may be put at risk by attacks on military targets, as by attacks on terrorist targets, but the risk must be kept to a minimum…”
Article 52 extends this prohibition to civilian objects, which are those objects whose “nature, location or purpose” does not make a contribution to military action, and whose destruction would not add a “definite military advantage.” If there is a doubt as to the civilian object’s use, it is presumed to not be used for a military purpose. Basically, a house is a house, a school is a school, and a mosque is a mosque – and immune from attack – until it is known that it is being used for a military purpose. Then it becomes a lawful military target and can be attacked.
Now that the legal jargon is out of the way, let’s look at the facts on the ground. Operation Protective Edge is currently into its fifth day. According to the latest reports, as of 5:22 PM on July 12, Israel has carried out over 1,000 airstrikes, destroying 1,200 Hamas targets. According to Palestinian sources, the number of Palestinian casualties stands at 127 killed, 88 of them civilians as of July 11. Only 54 of over 1,000 airstrikes carried out by the Israel Air Force have resulted in any casualties at all, including combatants.
Admittedly, this seems like a crass number game, since we are talking about human beings, and innocent civilians have tragically and unfortunately died in some IAF strikes. But the language of the law requires that civilians be the “objects” or “targets” of the IAF’s attacks to determine if Israel is indeed “collectively punishing” Gaza’s civilian population, and killing them “indiscriminately” – i.e violating Distinction. In other words, that the pilots and their commanders had the intent to kill civilians. One of the first lessons learned in law school is that determining “intent” is almost impossible. Judges and prosecutors cannot read minds, but intent can be discerned circumstantially. One of the ways to determine intent is by looking at the numbers: Israel has expended over 2,000 tons in ordinance in over 1,000 strikes, destroying over 1,200 targets, and only 54 of those strikes resulted in any loss of life – civilian or combatant. Israel does not lack the means to cause massive civilian casualties. The fact that the numbers are so relatively low is conclusive proof that the intent to target civilians is lacking. Otherwise, the numbers would be much higher.
Additional proof of Israel’s compliance with Distinction is the IAF’s method of “knocking on the roof,” whereby a small mortar or flare is fired at a building’s roof, giving occupants ample time to evacuate before the actual strike. Even before “knocking on the roof“, the IDF calls up residents to warn them of the incoming small mortar. The UN has stated that during Protective Edge, in most of the cases where IAF targeting has resulted in civilian casualties, the IDF called before the strikes, warning the occupants to flee. The IAF has also adopted the practice of dropping leaflet bombs on targeted areas prior to strikes, warning civilian residents of an imminent strike and to flee.
Admittedly, early warnings do not absolve the IAF from ensuring that the actual strike itself complies with Distinction, a fact that the IDF readily acknowledges, and due to which it reviews the legality of each strike before undertaking it. IAF gun cams routinely show pilots calling off air-strikes when they and their commanders determine that the strike would cause a loss of civilian life disproportionate to the anticipated military advantage, even after using its warning methods.
What about Hamas’ compliance with its duty under international law to observe Distinction, by both distinguishing itself from the Palestinian civilian population and not targeting Israeli civilians? Hamas fails on both counts, and by doing so is committing war crimes.
Hamas has openly stated that it considers all Israelis to be legitimate targets for its attacks, and makes no secret of its attacks on Israeli civilian population centers, or intent to attack civilian objects like Ben-Gurion airport. It frequently boasts about its attacks on its Arabic twitter feed. While Israeli casualties are thankfully low – in large part to the measures Israel takes to protect its civilians – Hamas has clearly demonstrated its intent, time and again, to harm Israeli civilians. That it fails at its attempts does not remove the stain of guilt from the terror group. Article 51(2) also prohibits “Acts or threats of violence the primary purpose of which is to spread terror among the civilian population.” Hamas routinely violates this by making threats against Israeli civilians, and producing Hebrew-language videos threatening Israeli civilians with suicide bombings and other violent attacks.
Not only does Hamas violate Distinction when it comes to Israeli civilians, but it, in direction contravention to Article 58, it also violates its duty to distinguish its fighters from Palestinian civilians. Hamas intentionally places its own civilians in the line of fire by hiding its weapons caches in civilian homes and areas, and using them as staging grounds and launching areas for their attacks into Israel. Not only that, but Hamas instructs Palestinian civilians to ignore warnings of imminent attacks by the IDF, claiming these are part of Israel’s “psychological warfare designed to cause chaos among the home front.” Hamas also actively encourage Palestinian civilians to act as human shields, a request to which many Palestinian civilians readily comply.
The deaths of innocent civilians are always tragic, and to the layman it might seem rather heartless to deal with very real human suffering as a simple legal calculus. Nevertheless, it remains a duty of the highest importance to determine whether Hamas or Israel is the party ultimately committing war crimes and responsible for the deaths of Palestinian civilians. Properly identifying the guilty party is the first step in permanently ending the suffering of Palestinian civilians. In Operation Protective Edge, the guilty party is unquestionably Hamas.