The Changing Legal Standards for the War in Gaza

An Israeli solider rides on top an armored personal carrier close to the Israel Gaza Border, southern Israel,Thursday, Nov. 1
An Israeli solider rides on top an armored personal carrier close to the Israel Gaza Border, southern Israel,Thursday, Nov. 15, 2012. Israel's prime minister says the army is prepared for a "significant widening" of its operation in the Gaza Strip. Benjamin Netanyahu told reporters on Thursday that Israel has "made it clear" it won't tolerate continued rocket fire on its civilians. (AP Photo/Ariel Schalit)

No matter how appalling, the death of civilians during armed conflict does not in itself constitute a war crime. While the sine qua non of international humanitarian law is protecting human life, civilian casualties is a ghastly reality of war. Protecting the lives of civilians during conflict is measured against any advantage to be gained in military strikes. The paradox of Gaza is that Israel's Iron Dome defense shield has largely neutralized Hamas rockets, changing the calculation of threat and the value of military targets. The recently established UN Commission of Inquiry will have to carefully assess whether Israel's response violates international law, in part, because Israel has failed to account for its own power and Hamas' limited ability to inflict harm.

To be clear, the State of Israel has both the right and responsibility to defend itself from the current barrage of rockets targeted at its citizens. No principle in international law impairs Israel's inherent right to defense, and the UN Charter authorizes the use of force by a state in self-defense. The only limitation on this right is that Israel must restrict itself to the necessary means that will immediately repel or deter the attacks.

Since July 8, more than 3,000 rockets have been launched from Gaza into Israel. The attacks have not been aimed at military targets, nor do they make any attempt to exempt Israeli civilians from harm. These indiscriminate, wide-spread attacks flagrantly violate international humanitarian law, by which Hamas is bound.

However, Israel, even in pursuing its legitimate self-defense, must abide by minimum standards of rights, obligations and prohibitions in the use of force. The relevant principles to consider, in accordance with the Geneva Conventions and its Additional Protocols, are 'distinction' and 'proportionality'.

Distinction is straightforward. Israeli forces must, at all times, differentiate between military targets and civilian objects. Israel would be violating the principle of distinction and committing war crimes if civilians or civilian property (e.g., schools, hospitals, homes, refuge shelters, power plants) were intentionally or indiscriminately targeted. The numerous shelling of UN schools in Gaza, where nearly 10 percent of the population of Gaza is now taking shelter, should certainly provoke concerns that war crimes have been committed. So too should the shelling and destruction of the only power plant in Gaza and the central mosque in Gaza City. But if civilians or civilian property were targeted neither indiscriminately nor willfully, then the assessment of whether war crimes have been committed by Israel depends on the second principle -- proportionality.

Proportionality requires that harm to civilians or civilian property be proportional to the anticipated military advantage of attack -- in this case neutralizing Hamas rocket launchers and tunnels. This is an unequivocal duty. Even if Hamas nefariously and illegally places rocket launchers in civilian areas, Israel cannot abnegate its responsibility under international law and must choose a means of attack that will avoid or minimize harm to civilians and damage to civilian objects. If the harm caused is excessive in relation to the anticipated military advantage, the attack must be suspended or aborted.

The UN Commission of Inquiry will have to determine whether the massive military offensive carried out by Israel under Operation Protective Edge, including constant air-strikes, a ground invasion of the northern Gaza Strip, and the razing of entire neighborhoods, falls outside the scope of the principle of proportionality. Although the exact numbers are still in dispute, there are reportedly now over 1,700 Palestinian dead and an additional 9,000 injured, the vast majority of them civilians. Over 300 children have died. The large number of civilian fatalities and injured is not surprising for anyone who has visited Gaza. In excess of 1.7 million inhabitants live in an area of 360 square kilometers, with over 4,500 people per square kilometer. Its densely populated area makes any sustained military operation susceptible to unacceptable civilian casualties.

Against this, what is the military advantage to Israel? By its own admission, the Israeli government says that it intercepts roughly 90 percent of all rockets fired into Israel from Gaza. The Iron Dome shield has essentially rendered useless the thousands of rockets manufactured and concealed in concrete bunkers by Hamas. The shield, one of the most sophisticated and effective missile defense systems ever deployed, is a three-piece system of interceptor batteries able to destroy missiles launched from distances of 4 kilometers to 70 kilometers away.

It is actually Israel's defensive capabilities and power that have changed the legal parameters of the current conflict. The conflict between Israel and Palestinian organizations such as Hamas is a classic case of asymmetric warfare. With a quasi-unassailable Israel, as a result of its Iron Dome defense shield, the military advantage of the operations in Gaza is difficult, if not impossible, to balance against the scale of civilian casualties and the vast destruction of civilian infrastructure. Although it may seem antithetical to the notion of self-defense, Israel has a greater legal duty to adhere to a higher proportionality standard because of its unique defensive stature. The Commission has to decide whether Israel's failure to comply with this legal requirement is a war crime.

Dr. Mark Ellis is Executive Director of the International Bar Association, London