It is legal to kill civilians during war, but it is illegal to ‘target’ them.
Difficult to apply in practice… Israel: “It’s not as simple as it sounds”
There is no force… No practical action can be taken without Security Council consent.
As the number of civilian deaths due to the war between the Palestinian armed faction Hamas and Israel increases, the effectiveness of the laws of war is on the chopping block.
On the 17th (local time), the Wall Street Journal (WSJ) reported that the Israeli war has put international laws that regulate war, including the ban on massacre of civilians, to the test.
◆It is legal to kill civilians, but ‘targeting’ is illegal… according to proportionality
The laws of war establish the kind of external boundaries permitted in military operations. War customs developed over centuries, but began to be codified in international treaties with the advent of mechanized warfare in the 1800s.
The 1949 Geneva Conventions contain rules for the protection of civilians and treatment of prisoners of war. Both Israel and the Palestinian Authority (PA), which includes the Gaza Strip on paper but not de facto rule, have ratified the agreement.
It is not illegal to kill civilians during military operations. As the Gaza Strip is densely populated, it is virtually impossible to carry out military operations while avoiding civilian casualties.
However, ‘targeting’ civilians is illegal. Protocol I to the Geneva Conventions, enacted in 1977, states that “acts or threats of violence whose primary purpose is to spread fear among civilians are prohibited.”
However, it recognizes that civilian casualties occur due to armed conflict and specifies principles such as distinction and proportionality to mitigate this.
Proportionality considers a military operation illegal when the loss of civilian life, injury, or material damage is excessive compared to the expected specific and direct military benefit.
Protocol I stipulates that the military “shall distinguish between civilians and combatants, civilian targets and military objectives, and shall accordingly conduct operations only against military objectives.”
Although it is illegal to target civilian facilities, such as the attack on a hospital in Gaza, hospitals and religious facilities may not be protected if they are used for military purposes.
◆Difficult to apply in practice… “It’s not as simple as it sounds”
However, in practice, the principles are not applied as written. On the battlefield, it is difficult to clearly distinguish between purely civilian facilities and facilities suspected of military use. It is even more difficult to proportionally calculate civilian casualties and military gains.
In particular, Hamas is using tactics to obscure the border by hiding fighter jets and military facilities among civilians. For this reason, the Israeli military has also said that carrying out an operation to eradicate Hamas while preventing civilian casualties in the Gaza Strip is “not as simple as it sounds.”
Michael Schmidt, a former U.S. Air Force judge and professor of the law of war at the U.S. Military Academy at West Point, said, “Even if Hamas does not actively use civilians as shields, Israel cannot deviate from its legal obligations (under international law), so the mere presence of civilians is enough to trigger its operations.” “It gets more complicated,” he analyzed.
A military judge provided legal advice to commanders regarding operational decisions, and explained that repeatedly warning civilians in the Gaza Strip to move south was an appropriate measure to reduce casualties.
◆It is difficult to hold accountable even if the laws of war are violated… Effectiveness questionable
However, even if Israel or Hamas violates the laws of war, it is difficult to hold them actually accountable.
Each country is responsible for enforcing the laws of war against its own troops and captured enemy prisoners of war. Established in 2002, the International Criminal Court (ICC) can intervene when member states’ judicial systems are unable or unwilling to hold those accused of serious crimes accountable.
Israel has not joined the ICC. The PA is a member state of the ICC, and in 2021, PA prosecutors announced that they would open an investigation into potential war crimes in the West Bank and Gaza Strip.
The UN Investigative Committee recently said it had begun collecting evidence of war crimes by both Israel and Hamas, but has virtually no enforcement powers. No practical action can be taken without the consent of the UN Security Council.
Amos Giora, a law professor at the University of Utah who served as legal advisor to the Israeli military in the Gaza Strip in the 1990s, told the WSJ that applying legal principles on the battlefield is not a simple task, and that the key issue is whether to classify this conflict as a counter-terrorism operation or a war. He said.
“Counter-terrorism operations, including targeted killings, target specific individuals and organizations and make every effort to minimize collateral damage,” Professor Giora said, explaining that war is less restrictive. At the same time, he added, “In war, a tank commander has never been court-martialed for destroying a house.”
Source: Donga
Mark Jones is a world traveler and journalist for News Rebeat. With a curious mind and a love of adventure, Mark brings a unique perspective to the latest global events and provides in-depth and thought-provoking coverage of the world at large.