Monday, March 10, 2008

Legitimacy and Proportionality

So much is talked about concerning questions of legitimacy and proportionality in the media when Israel is involved. Yet a survey of international practice suggests that the steps taken by Israel, and its approach to proportionality, correspond to, or are more stringent than, those taken by most western countries confronting similar threats.

Military operations and civilian casualties
International law recognizes that it is a tragic fact of armed conflict that civilian deaths and injuries may occur in lawful military operations. As the legal authority Oppenheim notes:

Civilians do not enjoy absolute immunity. Their presence will not render military objects immune from attack for the mere reason that it is impossible to bombard them without causing injury to the non-combatants. (Oppenheim, International Law 1952, Vol. II p.415)

In practice, two key questions arise in relation to the legitimacy of the planning and execution of an operation: 1) Is the target itself a legitimate military objective? and 2) Even if the target is in itself legitimate, is there likely to be disproportionate injury and damage to the civilian population and civilian property.

Legitimate military objectives
The generally accepted definition of "military objective" is that set out in Article 52(2) Additional Protocol I of the Geneva Conventions, which provides:

In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.

The second legal requirement is that any attack be proportionate to the military advantage anticipated.

Major General A.P.V. Rogers, a former Director of British Army Legal Services, explains the rationale behind this principle:

Although they are not military objectives, civilians and civilian objects are subject to the general dangers of war in the sense that attacks on military personnel and military objectives may cause incidental damage. It may not be possible to limit the radius of effect entirely to the objective to be attacked… Members of the armed forces are not liable for such incidental damage, provided it is proportionate to the military gain expected of the attack.

Accordingly, Israel takes pains to ensure that it directs its attacks against legitimate military targets, and that in conducting its operations incidental injury to civilians is kept to a minimum.

The suffering of civilians on both sides of this conflict is tragic. Contrary to the media reports, Israel is making strenuous efforts to reduce this toll, both by protecting Israeli civilians and seeking to minimize injury to civilians within the Gaza Strip. Israel's efforts in this regard should not, however, diminish the ultimate responsibility of those who callously and deliberately use the civilian population as a shield for the injury that inevitably results from their actions.

Two such glaring examples of the use of human shields were:-

a) Hamas’s Al-Aqsa TV called upon children to form a human shield at the home of Abu al-Hatal of the a-Shouqaf quarter of Sajaiyeh in order to protect the building from an anticipated IDF airstrike

b) Al-Aqsa TV News broadcast a story about how a crowd of civilians gathered on the roof of Abu Bilal al-Ja’abeer in the Northern Gaza strip, in order cause the IDF to abort a threatened airstrike against the structure

This just emphasises the asymmetrical war being fought and as has so often been pointed out by the Palestinians "You, the Israelis, love life, we love death".

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