Sunday, December 10, 2023

  • Sunday, December 10, 2023
  • Elder of Ziyon
Yagil Levy in Haaretz writes that Israel is no longer adhering to the principles of distinction and proportionality in international law in Gaza.

He bases this conclusion on wrong assumptions, wrong data and a complete ignorance of history and international law. 

What follows is a comparison between Swords of Iron, as Israel has dubbed the current war, and previous Israeli operations. For the comparative basis to be valid, we will analyze only operations in which Israel attacked Gaza from the air without a land assault, and will compare them to the aerial attacks undertaken during the first three weeks of the 2023 war. Accordingly, we will examine the proportion of Gazan civilians ("noncombatants") killed to the total number of Gazan fatalities.
That ratio reflects the degree to which the attacking side adheres to the principle of "discrimination," which is a key tenet of international humanitarian law. The principle holds that the attacking force is obligated to distinguish and differentiate between enemy combatants and civilians, and that it must avoid harming civilians, certainly deliberately. The law recognizes situations in which an attack is permitted against a military target that is situated in a civilian environment, but for these the law introduces another principle: that of proportionality. It holds that such an attack is lawful if the incidental loss of civilian life ("collateral damage") it may incur is not excessive, in relation to the concrete and direct military advantage anticipated.
It follows that with a high proportion of noncombatants among the total number of those killed, we can conclude that the principle of discrimination was not adhered to, and an unusually high rate will reflect either a departure from the principle of proportionality or a highly flexible interpretation of it. 

Israel has gone beyond the requirements of distinction and proportionality in previous wars. It does not follow that a higher percentage means Israel is violating those principles when the percentage is higher.

Levy bases his statistics on the Gaza health ministry numbers when they issued a report of the names, ages and genders of those killed in the first few weeks of the war, saying that "That report has not been refuted to date." However, the ministry has been shown to lie about the number of women and children killed, so the report itself is highly suspect. 

Nevertheless, Israel admits a 2:1 civilian to combatant ratio in this war. So we can accept that ratio - but that does not mean that Israel has abandoned the key principles of the laws of armed conflict.

Because every war is different. 

The baseline should be other similar wars, not other Israeli wars. Levy seems to admit this, in this passage:

From an international comparative perspective, too, this is a high figure, considering that in wars fought during the 20th century, up until the 1990s, about half of those killed were civilians ...In light of such a high proportion of noncombatants among those killed in Swords of Iron, we may suspect that the principle of discrimination was not upheld or perhaps that the principle of proportionality was subject to a highly flexible interpretation. Thus, rather than this being a case of "collateral damage," it was the reverse: Because most of those harmed are civilians, what was produced is "collateral benefit," in the form of a low number of Gazan combatants killed.
I found the "half of casualties were civilians"statistic in this 1989 article. It is very misleading though. 

Historically, wars were between armies. Over 1.7 million were killed in the American Civil War, but only about 130,000 were civilian. Relatively few civilians were killed in the Six Day War and Yom Kippur War. 

Because, historically, civilians were neither the targets nor the major defensive weapons.

There is no comparison between traditional war and wars against terrorists or insurgents, and there is certainly no comparison between traditional wars and wars where a key defensive weapon used by the terrorists is their civilian population themselves. To Hamas, Gaza civilians only exist to deter attacks on Hamas itself: it is not defending its civilian population but using them as literal human shields. 

The UN estimates a 9:1 civilian to combatant death ratio in wars since World War II. 

If you want so compare Israel's wars in Gaza with anything, it must be against US and allied wars in the Gulf, against Al Qaeda and ISIS and the Taliban. On that score, even a 2:1 ratio of civilian to combatant is extremely low. According to Colonel Richard Kemp, that 2:1 ratio is significantly better than that of similar wars involving the US Army -  3:1 in Iraq, between 3-5:1 in Afghanistan.

But we still have the question: why is Israel's ratio this time so much higher than its previous Gaza wars?

Because this war is different. In the previous wars, Israel sought to deter Hamas for a few years. It didn't try to destroy Hamas. 

And Hamas has now embedded itself into the civilian population to a degree that is seemingly unprecedented.

As one soldier on the ground told Times of Israel:
“There isn’t a single house here without weapons, there isn’t a house without [tunnel] infrastructure. It’s unbelievable. In dozens of yards of homes we found dozens of rocket launchers,” he said. “We found Kalashnikovs under mattresses, inside clothes closets. It wasn’t thrown there suddenly, they were hidden in the homes.”

He said Hamas’s placement of weapons and infrastructure within civilian sites was an attempt to “take advantage of the sensitivity we once had.”

“Schools, a cemetery near us, in a clinic… these are the places where they concentrated most of their tunnel shafts. They thought we wouldn’t strike there, and that’s where we found the enemy’s significant infrastructure,” Yisrael said.
Gaza is more embedded with civilians than ever. They are more dependent on tunnels than ever. They are relying more on deception than ever, including civilian casualty rates. 

The goal to eradicate Hamas means the IDF has to be more aggressive than in previous wars - but it does not at all imply that the IDF is not adhering to the principles of distinction and proportionality. The bar for proportionate civilian deaths is significantly higher than what Israel is doing today.  Moreover, Hamas members hiding beneath civilian schools, mosques and hospitals or with their own families does not make them immune to attack. This is basic Geneva Conventions 101. 

Yigal Levy is basing his argument on false assumptions, faulty data, ignorance of international law, and a complete misunderstanding of the difference between different wars in history and different Israeli wars, even in Gaza. 

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Elder of Ziyon - حـكـيـم صـهـيـون

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