Analysis: Death of innocents justifiable in war

By Daphne Richemond-Barak, March 27, 2009

Responding to The Guardian's Misplaced Allegations on IDF Conduct During Operation Cast Lead.

A series of articles, editorials and videos appearing in The Guardian and its website in recent days have raised some of the most serious allegations to date of war crimes by the Israel Defense Forces. The facts alleged by The Guardian might be disputable, but one thing is certain: The Guardian's accusations are based on an erroneous understanding of the laws of war.

It is often believed that international law forbids the killing of civilians in times of war. But the position of international law on the killing of individuals who are not taking part in the war effort is much more subtle. Mindful of both humanitarian concerns and the exigencies of warfare, international law has developed rules that determine when civilians can be harmed – that is, when circumstances might justify the deaths of innocent persons.

One such set of circumstances is when civilians die incidentally as a result of a strike against a military target (a missile launcher or bomb factory, for example). Such unfortunate deaths are acceptable under international law, so long as the harm to civilians as a result of a strike is not excessive in relation to the military advantage anticipated. Any attack therefore requires a delicate balancing between the possible collateral damage and the military gain. This is what is commonly referred to as the test of proportionality.

But proportionality does not require that Israel “mirror” Hamas – neither in the type of weapons it uses nor in the damage they cause. Hamas fired thousands of missiles at Israel towns for eight years leading up to the January war, terrorizing and paralyzing a sizeable part of Southern Israel. Proportionality is not measured by the force that has been used against Israel but by what is required to deter and protect against future attacks by Hamas on Israeli civilians. Neither is proportionality measured by numbers. The fact that there have been more civilian casualties on one side than the other does not, in and of itself, show that the response was disproportionate.

Further misstating international law, The Guardian suggests that the very fact that Palestinian medical personnel died in the fighting constitutes a crime under the Geneva Conventions. True, as noted by The Guardian, "the Geneva convention makes it clear medical staff and hospitals are not legitimate targets". What The Guardian fails to mention, however, is that medical personnel and premises are protected from attack only to the extent that they are not "used to commit, outside their humanitarian duties, acts harmful to the enemy." In other words, hospitals and ambulances can be targeted when they are used to transport terrorists or to protect them from fire (provided that warning of the attack is given and that the attack is proportionate). What must be determined is whether such ambulances and hospitals were used by Hamas to launch missiles, transport weaponry or hide, a possibility not even envisaged by The Guardian.

As these examples illustrate, international law is much more nuanced and realistic that The Guardian's simplistic account would have us believe. International law does allow a state to defend itself against repeated attacks against its civilian population – while establishing limits to what the state can do. The fact that one party to the conflict acts in disregard of the laws of war does not exempt the other party from abiding to its international obligations. But when the enemy not only purposefully targets civilians but also purposefully wages its war from its own civilian areas, the law does take it into account. No site, whether a hospital or a school, enjoys absolute immunity when harmful acts (such as rocket launches) are permitted on its premises. And a protected individual’s death – however regrettable – may be “excusable” depending on his or her involvement in the fight.

Of course, none of this is meant to suggest that Israel's actions are irreproachable or that The Guardian's allegations should not be investigated. They should. However, categorical statements of the sort made this week by The Guardian provide a truncated, and thus flawed, account of international law. The Guardian has a reputation for being quick to pass judgment – as it did, vocally, in 2002 when reporting on Jenin. Learning from its past mistakes wouldn’t hurt; and neither would a crash course in international law.

Daphné Richemond-Barak teaches international law at the Interdisciplinary Center (IDC) in Herzliya.

Last updated: 2:26pm, November 8 2010