Friday, June 04, 2021

The UN's Office for the Coordination of Humanitarian Affairs published an infographic at the end of the May fighting in Gaza describing how many of the dead in Gaza were civilians. Here is a detail from the May 25 graphic:

The footnote to this graphic says:

Disclaimer: Those reported as civilians are individuals that are not members of armed forces and were not directly participating in hostilities at the time that they were killed. Whether an individual is qualified as civilian or not, has no bearing on the legality of the killing.
That last sentence is, to put it mildly, bizarre. The entire Fourth Geneva Conventions were written for the "Protection of Civilian Persons in Time of War," Distinction between civilians and military objects, including members of armed groups, is a fundamental principle of international law.

Now the UN is saying that international law is the same for both civilians and members of armed terror groups? Or even full soldiers?

To be sure, there have been questions about exactly what is allowed under international law during conflict with terror groups. In a 2006 court case before Israel's High Court of Justice, Israel tried to argue that there is a third category between civilians and combatants, namely "unlawful combatants" who do not fit the legal definition of combatants since they do not carry arms openly and do not wear military emblems but who nevertheless engage in hostilities. The HCJ rejected that argument, and said that existing international law does deal with such people, as described in the 1977 First Protocol Additional to the Geneva Conventions:
"3. Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities."
The HCJ said, that "terrorists participating in hostilities do not cease to be civilians, but by their acts they deny themselves the aspect of their civilian status which grants them protection from military attack. Nor do they enjoy the rights of combatants, e.g. the status of prisoners of war."

The remaining question is to define "for such time" and "hostilities" and "direct." The HCJ says that commanders who send out militants are taking direct part in hostilities, and that members of a terror organization who are taking a rest between fighting are only preparing for the next attack and are therefore subject to attack themselves. Meaning, that Israel can attack them in their homes, assuming that the military advantage gained by killing them is proportionate to the expected damage to civilians.

Israel’s Manual on the Rules of Warfare (2006) states:
The fundamental rule is that war should be conducted between armies and each army should only attack the army of the enemy. A military target is any target that, if attacked, would damage the military competence/fitness of the other side. ...Every soldier (including women soldiers!) in the enemy’s army is a legitimate military target to be attacked on and away from the battlefield.
So while the question of exactly what is allowed in a war against terror groups who do not adhere to the laws of war themselves is complex, the UN's assertion that there is no difference in the legality of attacking civilians and members of armed groups is clearly wrong - whether one considers them to be combatants or whether one considers them to be civilians engaging in hostilities. 


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