War-Law and Civilian Casualties

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Useful and useless law

1/   Essentially, the core concepts for legal war are the principles of distinction and proportionality.  The principle of distinction requires armies to distinguish between enemy combatants and civilians; only enemy soldiers may be targeted.  The principle of proportionality requires that force may not be used when civilian casualties could be expected to be excessive compared to the attainment of a legitimate military objective.  These simple concepts are intended to permit legal war and to safeguard civilian life as far as feasible.

2/   But reality is more difficult.  For example, how is the principle of distinction possible against an enemy who deliberately, routinely, and illegally makes itself indistinguishable from its own civilians?  And if meaningful distinction is impossible, does this end a defender’s right to self-defense?  What do legal authorities advise in such circumstances?  Order the arrest of offenders?  If so, how would this be implemented without the use force?  And how could force be legally applied if distinction was impossible?

3/   To escape this problem, the law could have said that no civilian deaths were permitted.  But no state would agree to this as it would effectively render the right of self-defense a war crime.  Further, by failing to offer a legal way to implement the right of self-defense, such a law would be both dangerous and irrelevant.  If the impossibility of making the required distinction denied a defender’s ability to defend itself, the inevitable result would be more wars where distinction was impossible and more civilian casualties.

Guiding concepts, not absolute principles

4/   In reality, these concepts are not absolute.  For example, the Fourth Geneva Convention (article 19) states:

The protection to which civilian hospitals are entitled shall not cease unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy.  Protection may, however, cease after due warning has been given, naming, in all appropriate cases, a reasonable time limit and after such warning has remained unheeded.

5/   Likewise, with the principle of proportionality, how can it be known in advance how much force is required to achieve a military objective?  Proportionality is not a requirement to employ a similar degree of force as an enemy or produce similar numbers of casualties.  It is a requirement not to use a degree of force that would result in a scale of civilian casualties that could not be justified by the value of a legitimate military objective.  This is, of course, inherently problematic as no precise method of calculation is possible.

6/   Other uncertainties abound.  The armaments and fighting capacities of an enemy may not be known in advance.  Hence, with hindsight, it may be the case that excessive force was used.  It is also possible to underestimate the amount of force available to an enemy.  If so, the legitimate military objective may not be achieved.  This will encourage the temptation to use more force with more civilian casualties than hindsight may show to have been needed.  Therefore, the concept of proportionality is also modified so that judgment of whether excessive force has been used is based on the knowledge available at the time, and not in hindsight.

7/   In sum, a great deal of uncertainty, imprecision and subjectivity remains.  In the war between Hamas and Israel, neither the UN nor anyone else has specified alternative military or other methods for use by Israel to destroy Hamas.  None have denied that the aim of destroying Hamas is a legitimate war aim.  Nor has anyone suggested that the US, UK, France, or others, have superior military models to follow.

8/   Instead of supporting the only side attempting to follow the rules of war, many in the international community regularly concentrate their critical fire on Israel.  Simultaneously, there is a reluctance not to blame those who have zero interest in the laws of war.  That is, hostile political views are presented as if they were legal certainties.

 

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