GAZA WARCivilian Deaths and Proportionality in the Israel–Hamas War
Hamas invites civilian casualties by its positioning of military assets, and now that it knows that Israel’s risk tolerance is well beyond anything it has seen before, it likely sees outcries over more civilian casualties leading to a ceasefire as its only chance of survival. And Washington hopes that Israel can inflict grievous damage on Hamas before the White House will have to acquiesce to public opinion and back some kind of ceasefire. Israel, Hamas and Washington are all accepting of civilian casualties in Gaza—they only differ in how many and why.
Since the Israeli response to the 7 October terrorist attack by Hamas began, the world’s focus has shifted onto Israel’s prosecution of its military campaign. But in an era where information (and misinformation) can be transmitted instantaneously, and when emotions are raw, context is largely absent or ignored. Terms such as ‘war crimes’ and ‘international law’ are thrown about by people who have little or no understanding what the terms actually mean. Accusations that a religious building, school, medical facility or ambulance has been bombed in most cases are made without knowledge of exactly what the building or vehicle was being used for. Protected civilian objects, for example, lose that protection when they are deemed to be legitimate military targets.
Hamas has spent years building tunnels underneath Gaza to house its weapons, supplies and command-and-control nodes. It is effectively using Gazans as human shields in contravention of international law. It wants to raise the risk threshold (that is, the civilian casualty count) that Israel faces in targeting its facilities. Israel, for its part, claims that it tried to separate combatants from non-combatants by dropping leaflets to people in north Gaza ordering them to head south. It was at best a perfunctory effort at minimizing the number of civilians in the target area.
Exactly how many civilians and combatants in Gaza have been killed isn’t known. To date the Hamas-run Health Ministry has provided detailed figures of Palestinian civilians killed, yet there’s no mention of any Hamas deaths. The accuracy of the casualty figures have been called into question, and the Health Ministry was certainly caught out fabricating claims of an Israeli strike at al-Ahli Hospital, but without knowing how many Hamas militants were killed or injured in a strike, or the number of civilians, then determining whether the attacks, individually or collectively, breach international law is virtually impossible.
Given the increasingly strident calls for Israel to stop its aerial bombing campaign in Gaza and to reduce civilian casualties, it is perhaps worth examining the two main considerations that drive whether a military response, or aspects of a military response, can be considered to breach international law. I am not a lawyer, and nor are those that authorize the engagement of a target. Lawyers give advice, but it will be a uniformed non-lawyer military officer, or in some cases a senior politician, who will ultimately approve a strike.
