Thursday, November 02, 2023

A 2009 event in Afghanistan proves that Israel is following international law today

We've discussed the principle of proportionality before, and shown how Israel adheres to this principle entirely in its wartime activities. 

Here's another example of what would be considered proportional, from a German court. The background:

On the night of September 3, 2009, Taliban fighters hijacked two tankers carrying NATO fuel and then got stuck on a sandbank in the Kunduz River, about four miles from the NATO base in the northern city of Kunduz.

Col. Georg Klein, a German who at the time was commander of the NATO base in Kunduz, called in U.S. military planes to bomb the tankers, saying that he believed that only insurgents were in the area and that he feared the Taliban could use the tankers to carry out attacks. But dozens of local Afghans had swarmed the tankers, invited by the Taliban to siphon off fuel.

A German Army investigation later determined that as many as 90 civilians had been killed. 

The commander did not know any civilians were there, and he based his decision on his best available intelligence at the time. But the German court that ruled on the case said that even if he had known the civilians were there, he would have been justified in ordering the airstrike:

In the present case the bombing pursued to military goals, namely the destruction of the fuel tankers robbed by the Taliban and of the fuel as well as the killing of the Taliban, including not least the high-level regional commander of the insurgents. The anticipated military advantage, namely on the one hand the final prevention of using the fuel and the fuel tankers as “driving bombs” or to fuel the insurgents’ militarily used vehicles and on the other hand the at least temporary disruption of the Taliban’s regional command structure fall within the usual, recognized tactical military advantages … The fact that the goal mentioned in second place was not fully achieved is irrelevant for the legal assessment because the expectations at the time of the military action based on the facts are decisive.

...Even if the killing of several dozen civilians would have had to be anticipated (which is assumed here for the sake of the argument), from a tactical-military perspective this would not have been out of proportion to the anticipated military advantages. The literature consistently points out that general criteria are not available for the assessment of specific proportionality because unlike legal goods, values and interests are juxtaposed which cannot be “balanced” … Therefore, considering the particular pressure at the moment when the decision had to be taken, an infringement is only to be assumed in cases of obvious excess where the commander ignored any considerations of proportionality and refrained from acting “honestly”, “reasonably” and “competently” … This would apply to the destruction of an entire village with hundreds of civilian inhabitants in order to hit a single enemy fighter, but not if the objective was to destroy artillery positions in the village … There is no such obvious disproportionality in the present case. Both the destruction of the fuel tankers and the destruction of high-level Taliban had a military importance which is not to be underestimated, not least because of the thereby considerably reduced risk of attacks by the Taliban against own troops and civilians. There is thus no excess.   

The German Federal Court of Justice here makes two rulings:

1. Killing several dozen civilians in order to stop two tanker trucks from possibly being used either as truck bombs or even to fuel enemy equipment would not be disproportionate.

2. Destroying an entire village with hundreds of civilian inhabitants would not be disproportionate if the objective is to destroy artillery positions. (There is a separate issue of the obligation to give warning to civilians if it would not impact the targeting of the military objective.) 

Israel's objective in Jabaliya was not only a top Hamas commander - whose death would already be enough to provide a definite military advantage - but also dozens of other terrorists and all the military matériel they had hidden beneath the ground. 

Once again, specific legal rulings show what Israelis all know: the IDF follows international law scrupulously. It usually goes beyond it, even putting soldiers at risk to avoid killing civilians, which is not a requirement under international law and indeed is arguably foolhardy. 

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