More than a month after Hamas fighters killed 1,400 Israelis in a shock assault, bombs continue to fall on the Gaza Strip in reprisal Israeli attacks.
The aerial campaign has left a heavy death toll – the health authority in the Hamas-run enclave has put the total number of Palestinians killed in excess of 10,000 – leading to questions over whether the response by Israel has been proportionate.
“Proportionality” has a place in what is described as the “laws of war.” The Conversation turned to Robert Goldman, an expert on international humanitarian law at American University Washington College of Law, for guidance on some of the issues.
What are the ‘laws of war’?
The laws of war, also known as international humanitarian law (IHL), consist of the four 1949 Geneva Conventions, their two Additional Protocols of 1977, the Hague Conventions of 1899 and 1907, as well as certain weapons conventions. It also includes what is known as “customary law” – rules that are accepted by states are legally binding, but are not necessarily part of any formal treaty.
Simply put, these instruments seek to spare civilians and others who are no longer active combatants from the effects of hostilities by placing restrictions and prohibitions on the conduct of warfare.
It is important to understand that modern IHL is not concerned with the reasons for, or the legality of, going to war. Rather, that is governed by the United Nations Charter and member states’ own practice.
It is also important to note that violations of the laws of war are notoriously hard to prosecute and can be frustrated by lack of cooperation by the parties involved.
Can civilian structures ever be lawfully attacked?
Under IHL, civilian objects – such as homes, apartment blocks, hospitals and schools – cannot be directly attacked. This is because they, unlike munitions factories and command and control centers, do not effectively contribute to military action.
There is a caveat, however. If enemy forces take up positions in these civilian structures, then they become military objectives and can be lawfully bombed if the raid would yield the attacking party a definite military advantage.
That said, the stipulation does not allow unlimited license to attack such structures. The civilians located in those buildings are not lawful targets. As such, they retain the benefits of what is known as “the rule of proportionality” as it relates to collateral civilian casualties – that is, deaths that are not intended by the attacking party but nonetheless result from their actions.
What exactly is the rule of proportionality?
The rule of proportionality applies to all armed conflicts as part of customary IHL.
The proportionality rule operates as a general restraint on the conduct of parties engaged in hostilities and applies to attacks against lawful military targets located in the vicinity of civilians and civilian structures. It prohibits an attack that may be expected to cause incidental death or injury to civilians or the destruction of civilian objects that would be excessive – or disproportionate – in relation to the concrete and direct military advantage anticipated.
As such, the rule does not apply to enemy combatants or civilians who are directly participating in hostilities.
More than a month after Hamas fighters killed 1,400 Israelis in a shock assault, bombs continue to fall on the Gaza Strip in reprisal Israeli attacks.
The aerial campaign has left a heavy death toll – the health authority in the Hamas-run enclave has put the total number of Palestinians killed in excess of 10,000 – leading to questions over whether the response by Israel has been proportionate.
“Proportionality” has a place in what is described as the “laws of war.” The Conversation turned to Robert Goldman, an expert on international humanitarian law at American University Washington College of Law, for guidance on some of the issues.
What are the ‘laws of war’?
The laws of war, also known as international humanitarian law (IHL), consist of the four 1949 Geneva Conventions, their two Additional Protocols of 1977, the Hague Conventions of 1899 and 1907, as well as certain weapons conventions. It also includes what is known as “customary law” – rules that are accepted by states are legally binding, but are not necessarily part of any formal treaty.
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