August 13, 2015

This article first appeared on The Media Line.

[Jerusalem] A year later, memories of the 51-day conflict between Israel and Hamas in the Gaza Strip are still fresh. During the fighting, 2,200 Palestinians and 71 Israelis lost their lives. With the number of Gazans killed more than thirty times higher than the number of casualties in Israel, accusations of disregard for civilian lives and a lack of a proportionality in the use of force were leveled at the Israeli military.

Under international law – defined as the treaties and the normative behaviors through which states interact – there are two principles which governments must apply to their use of military force, Pnina Sharvit Baruch, a retired colonel and former head of the Israeli army’s International Law Department, told The Media Line. First a military must apply distinction, meaning it must differentiate between military and civilian targets. Secondly, it must apply proportionality. This means that the expected military advantage from an attack must outweigh any civilian casualties that are likely to occur as a result, she explained.

This does not mean that a military is forbidden from causing civilian casualties, but instead that it must balance the risk of causing a disproportionately high number of civilian fatalities each time it tries to kill an enemy combatant.

“There is no formula… the standards of a reasonable military commander is what is used to make such judgements” Sharvit Baruch said. During Operation Protective Edge the Israeli army believes it killed around 1 civilian for every enemy combatant slain, but this is within the norms of modern combat the retired colonel said, adding, “In most campaigns when you look at the numbers the ratio is worse than one to one.”

Recently the non-governmental organization (NGO) Airwars published statistics of the number of people killed as a result of airstrikes by the coalition of Western and Arab militaries which have come together to attack the Islamic State (ISIS). Figures published by the NGO reported that an estimated 15,000 ISIS fighters had been killed in airstrikes alongside between nearly 500 and 1,200 civilians. Such figures highlight the difficulties modern high-tech militaries continue to face when trying to avoid civilian casualties.

There is a narrative pushed by militaries and believed by western populations that modern conflicts, using precision bombs and loitering surveillance drones, can almost eliminate civilian casualties. It is the role of journalists to question such beliefs, Chris Woods, director of Airwars, told The Media Line. “(It is) not tenable that civilians are not being killed,” Woods said, explaining that with 6,000 airstrikes against ISIS in the first year some civilian casualties would be inevitable. Such fatalities seem to be an unfortunate reality of all current conflicts. This is even more true in fighting in urban environments, like the majority of locations occupied by ISIS, Woods said.

A direct comparison of Israeli actions during confrontations with Hamas cannot be directly made to coalition operations in Iraq and Syria, Sharvit Baruch said. No western democracy is facing a direct threat to its population and none has since World War II, she argued, adding that countries like Russia, Sri Lanka or Columbia were more comparable in regards to security issues. But these states have far less respect for international standards of proportionality, making much less effort to avoid civilian casualties, and despite this do not suffer the same degree of international criticism as the Jewish state, Sharvit Baruch said.

If Western states were to be attacked from densely populated urban areas then, “they would have exactly the same dilemmas and would act the same way as Israel,” Sharvit Baruch opined, adding that they might even be expected to act worse as these countries are not under the same level of international pressure as Israel.

But a number of international organizations have argued that such pressure is directed at Israel deservedly. In a report published at the start of the year B’Tselem, an Israeli human rights NGO, accused Israel of breaching the law of armed conflict with regards to its policy of targeting homes belonging to Hamas fighters. Such attacks breached the principle of distinction as the buildings were civilian in nature, despite Israeli assertions that they represented “terrorist infrastructure,” B’Tselem argued. The principle of proportionality was also ignored as Israel caused a number of civilian casualties without demonstrating any military gain, the report continued, adding that Israeli commanders talked a lot about proportionality but failed to demonstrate it.

In effect, Israel followed international law “in name only,” Sarit Michaeli, spokesperson for B’Tselem, told The Media Line, adding that the military, “stretched international law in terms of proportionality and distinction.”

This misses the point and does not reflect the character of the Israeli military argued Captain D, an Unmanned Aerial Vehicle (UAV) operator with the Israeli military who served in Operation Protective Edge in Gaza last summer. “Our whole being (is based around) three main goals: protecting Israeli civilians; protecting our troops (on the ground); and thirdly and not least, protecting (Palestinian) civilians,” the Captain said.

A number of mechanisms existed within the Israeli army to prevent civilians being killed. For example many air strikes which could have struck enemy combatants were aborted for this reason, Captain D said. But despite slowing down the targeting cycle – the time between identifying a possible target and striking it – such mechanisms were not seen as a constraint, he said, explaining that pilots and drone operators trained to expect the presence of civilians at all times. Five years ago, you might expect people congregating around a rocket launch site to be enemy and therefore legitimate targets, but now this is no longer true, he said.

Concerns over civilian casualties can at times even endanger lives Michael Knights, of The Washington Institute for Near East Policy, told The Media Line. In regards to coalition attacks against ISIS, Knights said, “We often don't strike a convoy because it may have “non-combatants” in it, often adolescent boys with guns, and then the convoy takes over a town and massacres a bunch of civilians. Did we do the right thing?”