In the summer of 2006, I took some time out of a quiet Sunday to do an interview with Sky News on the conflict in Lebanon. Calling for an immediate ceasefire was the easy part of the argument, the Israelis having just killed 28 civilians, including several children in an air strike in Qana. But the interview then descended into a messy argument with the anchor, Tim Marshall, as to whether you could make a moral equivalent between the lower number of civilians killed deliberately by Hezbollah, and the higher number killed accidentally by Israel.
It’s a question that still troubles me, and goes to the heart of what we mean by international law. A year and a half later, the current Gaza conflict begins. The BBC and others have reported that around 900 Palestinians have been killed with just over 40 per cent thought to be women and children, compared to 13 Israelis of which three were civilians. Countless more have been traumatised on both sides. Again, calling for a ceasefire is the easy part of the argument – the more difficult question is whether international law may have been broken. Under international law, warring parties are obliged to distinguish between combatants and civilians, ensure that military attacks are ‘proportional’ and that the military advantage outweighs the possible harm done to civilians.
Hamas’ use of human shields – their policy of firing rockets from heavily populated civilian areas and also using built up areas as cover – would seem to constitute a violation of the Rome Statute of the International Criminal Court. This defines as a war crime the act of “utilizing the presence of a civilian […] to render certain points, areas or military forces immune from military operations.” Depending on what you believe, Hamas has either indiscriminately sent rockets into Israel, or deliberately targeted Israeli civilians. Either way, this would constitute a war crime. Hamas have said that their rocket attacks are based on a policy of self-defence against Israeli actions, but this argument has been rejected by groups such as Human Rights Watch.
A number of accusations have been levelled at Israel. IDF soldiers in Gaza have been accused of using civilians as human shields in the densely populated Strip. In addition, on 27 December the United Nations Human Rights Council released a statement by Richard Falk, a Professor of international law and UN Special Rapporteur on human rights in the Palestinian territories. The statement described the Israeli air strikes as “severe and massive violations of international humanitarian law.” The UNHRC statement alleges three violations: “collective punishment” of all 1.5 million people in the Gaza Strip in response to the actions of a few; “targeting of civilians” by carrying out air strikes in “the most densely populated area of the Middle East”; and ”disproportionate military response” in that Israeli’ attacks have “destroyed every police and security office of Gaza’s elected government,” and “killed and injured hundreds of civilians.”
In response to such accusations, the IDF have released videos showing what care they take to avoid civilian casualties. Spin and counter spin prevail during warfare and we should be careful not to make rash judgments either way.
There would appear to be international law violations on both sides – but what of the question of proportionately? Does 13 justify 900? Is this ever a far comparison to make (did the thousands that died in the twin towers justify those that thousands more that have died in Afghanistan?)?
Of course, it is impossible to put a value on human life – moral or otherwise. And the numbers game is not recognised in international law – however gross, the tally of civilian deaths does not seem to matter except possibly in specific incidents.
Luis Moreno-Ocampo Chief Prosecutor at the International Criminal Court said that in regards to the question of proportionality: “A crime occurs if there is an intentional attack directed against civilians or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage.”
But there is little understanding or agreement on what the key phrase “clearly excessive” means, and few if any test cases to build the kind of case law that supports a domestic judicial system. Is the killing of 42 civilians in the Al-Fakhura school clearly excessive compared to the two Hamas militants? Does the use of the school by Hamas fighters represent a war crime in itself? And finally, can one war crime ever justify another?
Both sides in the conflict, and the numerous protest movement and commentators accuse each other of war crimes all too readily. The real problem in determining if war crimes have been committed is one of getting verifiable information. With the chaos of a conflict and a lack of access to journalists and international observers to the war-zone, we may never reach a definite answer to these questions.