Short of Grounded Ideas
After the Hamas attacks on October 7 against Israeli civilian objects and some military objectives, the Israel Defence Forces (IDF) started a military campaign in the Gaza Strip which has led to a high number of civilian casualties and the destruction of many buildings.[1] Grounds for Israel’s attacks may have been based on military propositions such as the fact that destruction of these objects at the time offered a concrete and direct military advantage as anticipated by the Israeli State.[2]
Despite the difficulties in applying international humanitarian law (IHL) in such a densely populated and urban environment, the right thing to do is to oblige all parties to the conflict to abide by this regime of law. The classification of this conflict is one of an international armed conflict as well as an overlapping non-international armed conflict, and the rules relevant to these conflicts must be applied.[3]
Furthermore, both Israel and Palestine have ratified the four Geneva Conventions therefore all parties to the conflict in these territories as well as non-state armed actors must respect its rules. This is important because these rules codify the balance that IHL seeks to achieve between military perspectives and humanitarian aims[4] which culminated in the drafting of the Geneva Conventions. In doing so, it protects civilians and their objects. Thus, the current military campaign (Operation Swords of Iron) after Hamas’ attacks on October 7, must respect the rationale of international humanitarian law which aims to reduce human suffering in times of armed conflict.
What lens must the parties use to conduct hostilities?
Both the Four Geneva Conventions and their Additional Protocols have as their telos the protection of human beings and their vital atmosphere (goods, food, environment) in a situation of armed conflict.[5] While the Hague Conventions impose limitations in the use of means and methods of war, it is Geneva Law which brings extensional safety to all human beings.
Hence, IHL is premised on three basic principles: distinction, proportionality and precaution. As was established by the International Committee of the Red Cross in its study of customary rules,[6] the cardinal principle on which the humanitarian underpinning of IHL is constructed is that of distinction. This strict principle in particular forbids (i) direct attacks on civil population;[7] (ii) spreading terror amongst a civilian population;[8] (iii) launching indiscriminate attacks or using indiscriminate weapons;[9] (iv) using human shields[10] and (v) belligerent reprisals which do not comply with strict conditions.[11]
Civilians cannot be subject to attack unless they are directly participating in hostilities. In the current armed conflict, it is possible to identify two parties, the Israeli armed forces and Hamas, which prima facie do not enjoy protection from attack under the principle of distinction. Therefore, those in Gaza not belonging to either the IDF or Hamas are civilians. Despite Israeli Forces arguing that Hamas’ headquarters are underground, the nature of the civilian population does not change. Thus, there is a duty to protect the life and integrity of the people of Gaza incumbent on both Hamas and Israel.
This obligation must apply from a humanitarian perspective. Regardless of whether Hamas is located under civilian objects such as hospitals, refugee camps and buildings, the Israeli armed forces have to comply with the principle of distinction and conduct military operations in accordance with the humanitarian aims of IHL. So, the question is whether they have done so?
Is it a lack of balance?
Before advancing with this argument, it is necessary to say that Hamas’ actions are a clear violation of the principle of distinction and the prohibition on using the civilian population as human shields.
In terms of the military operation in the Gaza Strip, it is clear that directly attacking the civilian population is a violation of IHL. But the facts are complex because even civilian objects such as hospitals, schools and refugee camps can become military objectives if Hamas uses them for military purposes.[12] Even if so used, however, a proportionality calculation must be undertaken. The humanitarian rationale is also inherent in this principle which requires that a balance be struck whereby the incidental harm to civilians (life, injury, or damage to their objects) is not excessive to the military advantage anticipated (direct, feasible and concrete).
The International Criminal Tribunal for the former Yugoslavia (ICTY) held in the Galić case that:
The basic obligation to spare civilians and civilian objects as much as possible must guide the attacking party when considering the proportionality of an attack. In determining whether an attack was proportionate it is necessary to examine whether a reasonably well-informed person in the circumstances of the actual perpetrator, making reasonable use of the information available to him or her, could have expected excessive civilian casualties to result from the attack.[13]
This case established the ‘reasonable military commander’ standard which is useful in reviewing the tension between military necessity and humanitarian aims. It obliges military commanders to use all information available, humanitarian rules and common sense when conducting a military operation against a belligerent object.
Israel’s campaign of shelling in the northern Gaza Strip does not just have military purposes but also has humanitarian consequences. For instance, attacks against critical infrastructure, power plants and hospitals have resulted in civilian casualties, both directly and indirectly. There have been similar criticisms made by commentators regarding bombing campaigns in Iraq, Afghanistan and Serbia where there were “an unacceptably high level of civilian casualties, especially when compared with the low level of combatant casualties in the attacking force”.[14]
In Iraq, attacks against dual-use objects such as an electrical grid which may have contributed to military action but also affected civilian life were criticised. In this case the same censure could be directed to the shelling operation in Gaza which has affected hydraulic systems and hospitals. Children who are entitled to special respect and protection in armed conflicts[15] have been the most affected due to lack of access to water, food and health care. Some international academics such as Greenwood[16] even argue that there is no intermediate category of “dual use” objects because an object is either military or it is not. Other authors as such Rowe[17] argue that the terms “effective contribution to military action” and “definite military advantage” must be interpreted in a limited way. One way to do so is through the telos of the humanitarian aim of IHL which is to protect civilians.
In planning military operations, Israel’s armed forces must have a humanitarian vision which abides by this telos. Thus even when a civilian object becomes a military objective in the “cycle of targeting” it remains important to define what kind of good it is (for instance, a refugee camp, hospital or electricity grid), assess how many civilians are present, as well as the consequences of an attack against it. For instance, an attack against an electrical grid in Iraq resulted in the shutting off of water purification and sewage treatment plants and “epidemics of gastroenteritis, cholera, and typhoid broke out leading to perhaps as many as 100,000 civilian deaths and a doubling of the infant mortality rate.”[18]
The situation in Gaza is a violation of international law which goes against the purpose of IHL because it does not accord with its humanitarian vision. Therefore, there is a disbalance in favour of military aims at civilian expense. As Human Rights Watch has reported:
- “(…) disproportionate attacks are magnified for hospitals. Even the threat of an attack or minor damage can have massive life-or-death implications for patients and caregivers”.
- “(…) [t]he Israeli military’s repeated, apparently unlawful attacks on medical facilities, personnel, and transport are further destroying Gaza’s healthcare system (…)”.
- (…) Israel’s blockade has severely constrained hospitals, which have run out of essential medicines and basic equipment. While Israeli authorities have allowed minimal humanitarian aid into Gaza, they have continued to block the entry of fuel, which hospitals need for their generators. WHO reported that “hospitals are on the brink of collapse due to the shortage of electricity, medicine, equipment and specialized personnel. [19]”
According to the United Nations Children’s Fund (UNICEF), the blockade affected 120 newborn children who were in incubators, 70 of whom required mechanical ventilation. The incubators and ventilators could not operate without a stable electricity supply.[20] In addition, between November 11 and 13, three premature babies and 29 other patients reportedly died at al-Shifa Hospital amid the power outage and lack of medical supplies, according to the UN Office of the Coordination of Humanitarian Affairs (OCHA).[21]
In a nutshell
The basic rules of IHL, distinction, proportionality and precaution need humanitarian enforcement or more civilians will suffer under the questionable “use” of international law. The conduct of hostilities should not have a disbalance between military necessity and humanitarian perspective. Therefore, people around the world should raise a clamour for a humanitarian perspective of international law in Israel’s military campaign. Otherwise, with this tilt towards military necessity over humanitarian aims, more lives will end needlessly.
References
[1] Human Rights Watch. (2023) Questions and Answers: The Humanitarian Catastrophe in Gaza. https://www.hrw.org/news/2023/10/16/questions-and-answers-humanitarian-catastrophe-gaza
[2] Lemonde. (2023) Striking Hamas amid civilians: The Israeli army’s impossible strategy in Gaza. https://www.lemonde.fr/en/international/article/2023/11/02/striking-hamas-amid-civilians-the-israeli-army-s-impossible-strategy-in-gaza_6222552_4.html
[3] Opinio Juris. (2023). Classification of the Israel-Palestine Conflict under the Laws of War. https://opiniojuris.org/2023/11/24/classification-of-the-israel-palestine-conflict-under-the-laws-of-war/
[4] See. Andrew Clapham. 2021. War. Oxford University Press. Chapter 1.
[5] The preamble of Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949 says “The undersigned Plenipotentiaries of the Governments represented at the Diplomatic Conference held at Geneva from April 21 to August 12, 1949, for the purpose of establishing a Convention for the Protection of Civilian Persons in Time of War (…)”.
[6] See. Jean Marie Henckaerts and Doswal-Beck. Customary International Humanitarian Law. ICRC/Cambridge.
[7] Rule 1. Customary International Humanitarian Law.
[8] Rule 2. Customary International Humanitarian Law.
[9] Rules 11, 12 and 13. Customary International Humanitarian Law.
[10] Rule 97. Customary International Humanitarian Law.
[11] Rule 145. Customary International Humanitarian Law.
[12] See. Rule 8. Customary International Humanitarian Law.
[13] Prosecutor v. Galić, Case No. IT-98-29-T, Judgment and Opinion, ¶58 (Int’l Crim. Trib. for the Former Yugoslavia Dec. 5, 2003)
[14] Christine Byron. 2012. International Humanitarian Law and Bombing Campaigns: Legitimate Military Objectives and Excessive Collateral Damage. Yearbook of International Humanitarian Law.
[15] Rule 135. Customary International Humanitarian Law.
[16] Greenwood C. 1993. Customary international law and the first Geneva Protocol of 1977 in the Gulf Conflict. In RoweP (Edi.) The Gulf war 1990-91 in international and english law. Routledge, London.
[17] Rowe P. 2000. Kosovo 1999: the air campaign-have the provisions of Additional Protocol I withstood the test? IRRC.837:147-279.
[18] Kenneth R. Rizer, “Bombing Dual-Use Targets: Legal, Ethical, and Doctrinal Perspectives,” Air & Space
Power Journal Chronicles, May 1, 2001.
[19] Human Rights Watch.2023. Gaza: Unlawful Israeli Hospital Strikes Worsen Health Crisis Israel’s Blockade, Bombardment Decimate Healthcare System; Investigate as War Crimes. In: https://www.hrw.org/news/2023/11/14/gaza-unlawful-israeli-hospital-strikes-worsen-health-crisis
[20] Id.
[21] Id.
