13/11/2023
reading time 9 minutes
Every war is hell. Every war is killing and destruction, and historically civilians are unusually innocent victims of war. Urban warfare is a unique type of hell not only for soldiers who face attacks from a million windows or deep tunnels below, but especially for civilians. According to international humanitarian experts, civilians account for up to 90% of all casualties in modern wars that take place in populated urban areas such as Iraq’s Mosul and Syria’s Raqqa, even when the campaign is led or supported by a Western power such as the United States. writes John Spencer.
Destruction and suffering, however horrific, do not automatically constitute war crimes—otherwise almost any military action in a populated area would violate the laws of armed conflict, rules distilled from a complex patchwork of international treaties, court decisions, and historical conventions. Scenes of devastation, such as Israel’s attacks on the Jabalia refugee camp in northern Gaza earlier this week, are quickly prompting accusations that Israel is committing war crimes such as indiscriminate killing of civilians and reprisal attacks. However, war crimes must be judged on the basis of the evidence and standards of armed conflict, not on the basis of a cursory glance at the harrowing consequences of an attack.
On October 7, Hamas forces indisputably violated several laws of war by taking Israelis hostage and raping, torturing, and directly attacking civilians, as well as continuing to launch rocket attacks on Israeli population centers. Years of intelligence assessments and media reports have shown that Hamas is also committing war crimes by using human shields for its weapons and command centers and deliberately placing military capabilities in protected locations such as hospitals, mosques and schools.
On the other hand, nothing I’ve seen shows that the Israel Defense Forces are not following the laws of war in Gaza, especially since accusations that the IDF is committing war crimes come so often too quickly to examine the factors that determine , whether the attack and subsequent civilian casualties. are in accordance with the law. The factors to be assessed are the main dimensions of the most commonly accepted principles of international humanitarian law: military necessity, proportionality, distinction, humanity and honor.
President Joe Biden and a number of European countries, including Great Britain, Germany and France, support Israel’s self-defense, even as they express concern about the humanitarian situation in Gaza. Although the legal status of Gaza is unresolved under international law, Israel does not need any authorization to enter the territory and use force to conduct defensive operations, as Israel’s right to immediate and unilateral self-defense in accordance with Article 51 of the UN Charter is universally recognized.
Israel is committed to international law, and one of its cornerstones is proportionality. This concept is often misunderstood to only account for equal numbers of civilian casualties on both sides, with any unbalanced numbers considered disproportionate. However, proportionality is actually a requirement to take into account how much civilian harm is expected compared to the concrete and direct military advantage expected, according to UN protocols. In other words, the high number of civilian casualties in Jabaliya could potentially be considered legal under international law if the military objective is of high value. The Israel Defense Forces said the intended target in this case was a senior Hamas commander who oversaw all military operations in northern Gaza. Its neutralization is the goal that most likely crosses the proportionality bar. In addition, Israel pointed out that the loss of life was compounded by Hamas building tunnels that weakened the target structure, which then collapsed in the attack.
The attack also passes the test of “military necessity,” the principle that the action was necessary to achieve a permissible military objective (killing enemy soldiers), rather than an illegal objective (causing civilian suffering). The Israel Defense Forces (IDF) said their goal was to remove rockets, ammunition depots, energy and transportation systems that Hamas had built among its civilian population. So far, a number of military experts have assessed that Israel appears to be trying to comply with the law of armed conflict in its campaign in Gaza.
Of the remaining principles of the law of war – distinction, humanity (which, as the International Committee of the Red Cross puts it, “prohibits the infliction of all suffering, injury or destruction not necessary to achieve the legitimate purpose of the conflict”) and honor in the conduct of war – the principle of distinction is the most complex . The distinction requires Israel to “distinguish between the civilian population and combatants” and between civilian installations and military targets, taking all feasible measures to avoid civilian casualties. So far, I have witnessed the IDF implement—and in some cases go beyond—many of the best practices developed to minimize civilian harm in such large-scale urban battles.
These IDF practices include calling everyone in a building to alert them of an impending airstrike and giving them time to evacuate—a tactic I have not seen anywhere else in my decades of practice because it also informs the enemy of an attack—and sometimes even dropping small munitions on the roof of the building to provide additional warning. For several weeks, they have been demanding that civilians evacuate certain parts of Gaza using multimedia broadcasts, text messages and dropping leaflets. They have also provided routes that will not be targeted so that civilians have access to non-combat areas, although there have been some tragic reports that Palestinians from northern Gaza who have moved south have subsequently been killed as war rages across the strip.
When Hamas uses a hospital, school or mosque for military purposes, the building can lose its protected status and become a legal military target. Israel must still make every possible attempt to get as many civilians out of the site as possible, but the sites do not have to be cleared of civilians before the attack.
Unfortunately, it’s basically impossible to empty a city of all civilians before starting a city battle. Some people always stay behind, and it may be impossible for the elderly, sick, hospitalized, and the like to evacuate. In the densely populated Gaza Strip, where most Palestinians have nowhere to fully escape the dangers of war, the proportion of those who stay is likely to be higher, as border crossings remain closed to nearly all Gazans, many Palestinians object to leaving and Hamas has warned others not to leave.
Still, even if Hamas has no interest in fulfilling its obligation to take all feasible measures to minimize civilian harm, Israel has and should. The Israel Defense Forces should take steps such as limiting their forces to smaller parts of larger urban areas while continuing to secure safe areas and routes out of combat zones. They should continue their calls for the evacuation of civilians. They should limit the use of airstrikes and artillery near certain safe areas or gatherings of civilians. They should continue to work with the US to facilitate the entry of humanitarian supplies into Gaza (although it is wise to block the fuel that Hamas can use in its attacks, which the group also hoards while refusing to share with its own people).
There is no escaping the fact that pursuing a terrorist organization will create a terrifying war landscape. The visually repulsive footage in Gaza essentially recreates the same scenes that took place during the US and allied campaigns against al-Qaeda, ISIS and other terrorist groups, as that’s what it feels like when you’re forced to root out a sadistic terrorist organization entrenched in an urban area. Sadly, successful campaigns led or supported by the United States in places like Mosul and Raqqa have caused billions of dollars worth of damage and killed and displaced hundreds of thousands of civilians. However, this is the hellish reality of defeating terrorism.
Like all such conflicts in modern times, the battle in Gaza will look like an entire city was deliberately razed to the ground or indiscriminately carpet-bombed—but it wasn’t. Israel has the military capabilities to do so, and the fact that it does not use such means is further evidence that it respects the rules of war. It is also a sign that this is not revenge—a grossly misrepresented characterization of Israel’s goals—but a cautious defensive campaign designed to ensure Israel’s survival.
Source in English: HERE
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