Summary: Hamas uses civilians as a shield, the Israelis respond with disproportionate force and innocent people, many of them children are killed and wounded.
A just released Airwars report reveals that civilian casualties in the Israeli bombardment of Gaza in May of this year were between 151 and 192 deaths and 812 to 847 wounded, with a third of the casualties children. The Israeli air force carried out 1500 declared strikes. The report notes that 10 Israelis were killed in the ten day war and between 105 and 165 injured as a result of the more than 4000 missiles fired from Gaza into Israel, 90% of which were knocked down or fell in unpopulated areas short of their targets.
The Israeli strikes hit densely populated areas of Gaza with the IDF saying the targets were Hamas tunnels, militants and weapons dumps. The deadliest strike was in the early hours of May 16 when three buildings in the heart of Gaza City were levelled. The Israelis said that the target was a Hamas tunnel underneath al-Wahda street, a busy main thoroughfare. In that attack alone Airwars notes up to 49 civilians from three families were killed, with 18 of the victims said to be children. There were no reports of Hamas casualties.
Hamas, though it is not likely to ever accept it, must also bear responsibility for the civilian deaths and injuries in Gaza. It was they who begun the war after Israel did not meet its demands to withdraw soldiers from Al-Aqsa and the contested community of Sheikh Jarrah. Then prime minister Benjamin Netanyahu had vowed to “respond with great force. We won’t tolerate harm to our territory, capital, citizens, or soldiers. Whoever attacks us will pay a heavy price,” he declared after Hamas launched its first round of rockets.
Hamas has no qualms about locating its fighters and weapons caches in civilian areas, a point that the IDF and supporters of Israel internationally are quick to make when the issue of Palestinian civilian casualties is raised. And Hamas, for its part, is quick to use civilian deaths, especially of children, for propaganda purposes. But what does international law have to say?
International Humanitarian Law (IHL) considers the principle of proportionality – the Israelis stand accused of excessive and disproportionate use of force – and notes:
According to this principle, an attack is illegal if it is expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.
So as regards, let us say, the destruction on 15 May of the 11-storey building that housed the offices of Al Jazeera and the Associated Press (as well as flats) because the Israelis claimed it also housed Hamas “military assets” IHL is clear. This was an attack excessive to any military advantage that the IDF could claim. And it justifiably caused international outrage.
As well, Additional Protocol to the Geneva Convention, articles 51 and 57 are clear as regards civilians in war zones. Article 51, for example, reads in part:
The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations…. The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.
It is clear from figures compiled by the Israeli human rights NGO B’Tselim that the IDF pays scant or no attention to international law and the Geneva Convention Protocol. The statistics speak for themselves. Since 2000 and the start of the Second Intifada more than 10,000 Palestinians have been killed of which more than 7000 have died in Gaza. The figure for Israelis killed by Palestinians is 835. No death is acceptable and every death is a tragedy but the disproportionality cannot be ignored.
However as long as Hamas and other violent groups fire rockets from Gaza, one of the most densely populated places on earth and where at least 1 million of its 2.1 million population are children, and Israel responds with disproportionate force civilian casualties will remain terribly and unacceptably high. What then can be done?
A thoughtful response comes from the Israeli blogger Eliav Lieblich a lecturer at the Radzyner School of Law, the Interdisciplinary Center (IDC) Herzliya. He argues that unquestionably Hamas, by locating its militia and weapons in civilian areas, bears responsibility for civilian casualties. But he says that does not exclude Israel from its responsibility:
Under International Humanitarian Law (IHL), the fact that one party violates its obligations – among them the obligation not to use civilians as human shields – does not release the other party from its own obligations. Additionally, law prohibits “reprisals” against civilians, which means that a party cannot break IHL rules that protect civilians to try to compel the other party to cease its violation.
He posits that using the civilian shield argument to walk away from responsibility is not only in violation of international law, it is morally reprehensible. And he presents an alternative. The civilians in Gaza should be seen for what they are: hostages. In a bank robbery, he argues, it is not acceptable to take out the hostages along with the robbers. And he concludes:
The lives of the civilians must remain a paramount concern for the attacking force, whatever the responsibility of the other side. Armed groups might be responsible for harm that they occasion to civilians under their control. But to argue that this absolves the other party from responsibility is to get both law and morality wrong.