On the Issues of Proportionality

Background info:

 

On the Issues of Proportionality

International law

A military target remains a legitimate military target, even if it is located in a civilian area.

"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's 'International Law'

The use of civilians as shields to try to prevent attacks on military targets is prohibited.

"The presence of a protected person may not be used to render certain points or areas immune from military operations."

Fourth Geneva Convention, Article 28

 

The armed forces are not liable where injury to civilians results from unavoidable collateral damage, provided it is proportionate to the military gain expected of the attack.

 

"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… Members of the armed forces are not liable for such incidental damage, provided it is proportionate to the military gain expected of the attack"

Major General A.P.V. Rogers, a former Director of British Army Legal Services

Terrorist organizations that hide behind civilians bear the primary responsibility for civilian casualties.

"Should civilian casualties ensue from an attempt to shield combatants or a military objective, the ultimate responsibility lies with the belligerent placing innocent civilians at risk"

Dinstein,'Conduct of Hostilities under the Law of International Armed Conflict'

 

 

The correct party to assess the proportionality of a military action is the military commander in the field.

 

"It is unlikely that a human rights lawyer and an experienced combat commander would assign the same relative values to military advantage and to injury to noncombatants.… It is suggested that the determination of relative values must be that of the 'reasonable military commander' "

Committee Established to Review NATO Bombings in Yugoslavia

 

The security of one's own forces is a relevant consideration in gauging proportionality.

 

"The concept of military advantage involves a variety of considerations including the security of the attacking force."

 Bothe, Partsch and Solf, New Rules for Victims of Armed Conflict

 

International practice

The above principles of the law of armed conflict have been adopted as the basis of military guidelines by most states. The following examples of military manuals are typical:

Australian Defence Force Manual: 

 

The presence of non-combatants in or around a military objective does not change its nature as a military objective. Non-combatants in the vicinity of a military objective must share the danger to which the military objective is exposed.

 

Belgian Teaching Manual for Soldiers:

 

Objects occupied or used by enemy military forces are military objectives even if these objects were civilians at the outset (houses, schools or churches occupied by the enemy).

 

German Military Manual:

 

The term "military advantage" refers to the advantage which can be expected of an attack as a whole and not only of isolated or specific parts of the attack.

 

France's Law of Armed Conflict Manual:

 

The application of the principle of proportionality does not exclude that collateral damage may be suffered by the civilian population or civilian objects provided they are not excessive in relation to the concrete and direct military advantage anticipated.

 

Spain's Law of Armed Conflict Manual:

 

The principle of proportionality… is based on recognition of the fact that it is difficult to limit the effects of modern weapons and methods of warfare exclusively to military objectives and that it is likely that they will cause collateral damage to civilians and civilian objects.

 

Israel – IDF operational planning and orders:

 

In cases where there is doubt as to whether a civilian object has turned into a military objective… one is to assume that it is not a military objective unless proven otherwise.

 

Even when it is not possible to isolate the civilians from an assault and there is no other recourse than to attack, the commander is required to refrain from an attack that is expected to inflict harm on the civilian population that is disproportionate to the expected military gain.

 

 

 

 

International practice (contd.)

 

A survey of military actions directed against terrorist and other groups using concealment strategies within civilian population centers underlines the tragic cost that inevitably results to civilians in such cases. For example, the campaigns directed against Taliban and Al-Qaeda in Afghanistan and against Serbian militants in Kosovo, give an indication of the scale of civilian casualties that have been involved:

 

Yugoslavia – 'Operation Allied Force'

 

About 500 Yugoslav civilians were reported to have been killed in the 90 air strikes that took place during the Allied Force operation. Among the significant incidents that occurred during the campaign:

 

§  In April 1999, 16 civilian technicians and workers, mostly young people, were killed and 16 more civilians were injured in an attack on the Serbian Radio and Television headquarters in Belgrade.  The Committee Established to Review the NATO Bombings in Yugoslavia conducted a review of the incident, and concluded that "the civilian casualties were unfortunately high but do not appear to be clearly disproportionate".

 

• In May 1999 at least 100 civilians were killed in an attack on the village of Korisa. NATO emphasized that the bombing was directed at "legitimate military targets" and that the loss of life was regrettable, but a legitimate outcome of a necessary operation.

 

 

§  Later that month (May 1999), a bombing attack led to the deaths of at least three patients in the Dragiša Mišović hospital in Belgrade. The attack was directed at a military barracks in the Dedinje district adjacent to the hospital.

 

Afghanistan – 'Operation Enduring Freedom'

 

• On October 21, 2001, twenty-three civilians were killed in an attack on the village of Thori, located near a Taliban military base in Oruzgan province

 

• As many as thirty-five Afghan civilians were reported killed on October 22, 2001 in an attack directed at Taliban and al-Qaeda positions believed to be in the village of Chowkar-Karez.

 

• In July 2002, an air strike killed dozens of guests at a wedding party in the Uruzgan province. Noting that gunfire had originated from the area, a Coalition spokesman explained that "the responsibility for the loss rests with those that knowingly directed hostile fire at coalition forces".

 

• In July 2005, 17 Afghan civilians, including women and children, were killed in an attack on a terrorist base in the province of Kunar. A coalition statement noted that "when enemy forces move their families into the locations where they conduct terrorist operations, they put these innocent civilians at risk".

 

Hamas' behavior

Hamas' modus operandi is characterized not only by deliberate attacks on Israeli civilians, but also its disregard for the lives of Palestinian civilians. Making no attempt to comply with the humanitarian obligation to distinguish combatants from civilians, Hamas terrorists wear civilian clothes and hide weapons and fire missiles from the heart of populated civilian areas.

In recent months, the Hamas controlled media in Gaza has publicly called for civilians to act as human shields in attempt to prevent terrorist leaders and infrastructure from being targeted. The following are but a few of the documented examples of calls in the Hamas controlled Gaza media for Palestinians civilians to serve as human shields:

§  Hamas’ Al-Aqsa TV called upon children to form a human shield at the home of a terrorist in the a-Shouqaf quarter of Sajaiyeh in order to protect the building from an anticipated IDF air strike (March 1).

§  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, used for launching terrorist attacks, in order to cause the IDF to abort a threatened air strike against the structure.

• Al-Aqsa TV called upon the Palestinians in the northern Gaza Strip to go to the house of terrorist Othman al-Ruziana in order to protect it against an anticipated air strike (February 29,2008).

§  Al-Aqsa TV called upon the residents of Khan Yunis to gather at the house of Ma’amoun Abu ‘Amer due to an anticipated air strike. (February 28,2008). An hour later dozens of Palestinians from Khan Yunis were reported to have gathered on the roof of Abu ‘Amer’s house to serve as human shields to prevent the house from being hit (Pal-today Website, February 29,2008)

 

Israeli conduct

Israel makes significant efforts to avoid or minimize civilian casualties, by ensuring that its attacks are directed against legitimate military targets, and that in conducting its operations incidental injury to civilians is kept to a minimum. Every potential military operation is considered on an individual basis in order to ensure that it meets the test of proportionality.

 

In practice this means many proposed military operations are rejected when it appears that the likelihood of collateral damage to civilians and their property is too high. As Israel's High Court of Justice has held, in reviewing Israeli security actions:

 

This is the destiny of democracy, as not all means are acceptable to it and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand.

 

Israel Ministry of Foreign Affairs

30 December 2008

Sderot, December 28, 2008

 

Briefing to the Diplomatic Corps by Vice Prime Minister and Minister of Foreign Affairs Tzipi Livni

Sderot, December 28, 2008

 

Opening remarks

 

The mayor of Sderot has expressed to you his thoughts from the bottom of his heart about the situation here. He expressed the way of life that the people of Sderot have been facing during the last years.

 

I would like to add only a few things, because this is not the first time that we are meeting in Sderot. I think that some of you were here when Sderot was targeted by missiles from the Gaza Strip and I know that the days when Israel is under attack are the days we got some sympathy from the international community.

 

But speaking for the government, I would like to be in a position in which I can give an answer to our citizens and not only to share their suffering with the international community. This is our responsibility as a government and this is what we are doing now, according to the military operation that has started.

 

A few words, not only in terms of history but to share with you how we see the situation and where we are going.

 

There is no need - although maybe there is – to remind everybody that Israel left the Gaza Strip a few years ago. We dismantled all of the settlements in the Gaza Strip and we took our forces out, in order to create a vision of peace. The idea was that the Gaza Strip could have been the beginning of the creation of a Palestinian state, which would have included the Gaza Strip and the West Bank as well.

 

This never happened because Hamas took control and now the Gaza Strip is controlled by Hamas.

 

Another fact is that Hamas is a terrorist organization which expresses an extreme Islamic ideology. They are not willing to accept the requirements of the international community - to accept the right of Israel to exist, to renounce violence and terrorism and to accept previous agreements between Israel and the Palestinians. This is the nature of Hamas; this is the nature of the enemy that we all face. And this is not only the problem of the State of Israel – this is the problem of the Palestinians, this is the problem of the entire region and the problem of those who share with us the same values and the aspiration to live in peace in this region.

 

Israel decided to act in accordance with a dual strategy. We decided to initiate the Annapolis process according to a strategy that was agreed with the international community and with the pragmatic part of the Palestinian Authority. The idea was to work with the moderates, to work with the pragmatic leadership of the Palestinian Authority in order to reach a peace treaty.

 

The only way to achieve peace in this region is not only to work with the moderates but also to confront terrorism, to confront those who are working against any kind of peace process and put obstacles in the way of peace. This is the obstacle in the way of the Palestinians, on the way to creating a state of their own. Because the situation in Gaza is unbearable. This is a threat to the State of Israel and undermines the legitimate government of the Palestinian Authority. They undermine any kind of attempt to reach a peace in this region.

 

This is something that we all share. The requirements of the Quartet, which are now a part of United Nations Security Council resolution 1850, state very clearly that in order to gain legitimacy in this region, any Palestinian or any Palestinian leadership must accept the requirements of the international community – to accept  the right of Israel to exist and to renounce violence and  terrorism.

 

So Hamas is not legitimate and Hamas control of the Gaza Strip is not legitimate. And those who suffer from this are the Israelis and those who want to live in peace in this region.

This is a zero sum game and you need to understand it. This is a zero sum game not between Israel and Hamas, this is a zero sum game between the extremists and the moderates, between Hamas and Fatah, between Abu Mazen and Haniyeh.

 

Everybody knows this in this region but, unfortunately, things that we all understand in this region are not the words that you are going to hear publicly - because of the pictures that the radical elements spread, because of the pictures that some parts of Arab society see on television and maybe the international community as well. But the role of the leadership is to speak up and to say yes, maybe these are the pictures. But Hamas is to blame. This is their own responsibility and these are the ones who control the Gaza Strip and these are the ones who place their own civilians in the risk of a military operation. These are the words that we expect the international community to say. I would like to hear it in English, in French, in Arabic. Not only in Hebrew.

 

I know that most of the international leaders know this. But sometimes it is not easy to stand up, sometimes It is difficult to speak up when these kinds of radical elements are abusing television, and abusing the situation in order to continue to spread hatred.

Where are we going with this?

 

As I said before, Israel did not leave the Gaza Strip in order to come back. We have no intention of controlling the lives of the Palestinians. That is not a part of our values and it is not our aspiration. But sometimes a state or a government reaches the point at which there is no other alternative.

 

And we tried everything.

 

We pulled our forces out of the Gaza Strip, we dismantled the settlements, we showed restraint. Just to remind you, the calm that was achieved through the initiative of the Egyptians six months ago worked for a few weeks, and then Hamas deliberately violated this truce by targeting Israel on a daily basis, by smuggling weapons into the Gaza Strip, by continuing to keep Gilad Shalit in captivity and refusing to accelerate the negotiations to release him, by not coming to Cairo in order to do so - because they had this feeling that the Israelis are going to do nothing, and that the Arab world is going to do nothing and, at the end of the day the international community will put pressure on Israel. I hope that they are mistaken.

 

This is something that we need to prove to them during these days.  And Israel has paid the price for its restraint.

 

Six months passed and now we have longer range missiles that threaten other parts of Israel that were not under threat before. And when we needed to choose whether to launch a military operation six months ago, or to have a truce, we decided on the truce in order to give some hope of peace and quiet in this region.

 

But now I need to give explanations to them, and not only to the people of Sderot. A few months ago it was only the people of Sderot and some parts of this region.

 

We have here a member of parliament, Shai Hermesh, who is living in a kibbutz very close to the Gaza Strip, and he unfortunately has had to almost live in a shelter for weeks now. This is unbearable - a situation in which a member of the Israeli parliament needs to live in a shelter and other citizens as well. And I need to give an answer to all of these citizens.

 

We have tried everything – if there was any need to prove to the international community that Israel is looking for peace and quiet, we have shown it. It was proven.

 

And now our expectation from the international community is to support something that I knows is not easy to support. Military actions are not easy to support. You have your own public opinion, you have the pictures, and this is something that you have to give an answer to, I know that. But this is the only way that we can change the realities on the ground and that is the goal of this operation. We need to change the realities on the ground and we need to change the equation that Hamas thinks is the right equation for this region.

 

And in order to do so, we need to use some power. The mayor said before, that maybe Israel is stronger and it looks like the Palestinians are weaker. In a way we feel in Israel, that this is the reverse story of David and Goliath. Because the appearance is that Israel is stronger - and thank God that Israel is stronger. But we are not using our power and our forces as we could - unlike Hamas, which uses everything in order to target civilians. During this operation, we are making every effort to prevent civilian casualties.

 

There is a rocket now heading towards Kissufim.

 

So, we have the military power but we cannot use it because of our own values and not because the international community has asked us not to use it.

 

But the there is a point in time at which we needed to do what we are doing now. Enough is enough and we are going to use all of our forces. We are trying to avoid civilian casualties, that is true. The targets are only Hamas targets. We are talking about their headquarters; the places in which they are situated.

 

You can see on television that most of those who died during the attack were wearing Hamas uniforms, either black or other uniforms of Hamas, and before this military operation, we called on the civilians to leave those places that they know are Hamas headquarters or places where Hamas people live or have gathered, in order to attack Israel. We know that they abuse the civilian population centers. I think that the last time we had this gathering we showed you a film in which they used a school yard from which to target Israel. And maybe Israel is the only state in which warnings are given in advance to the civilian population to leave a place that we know we need to target a few minutes later, a few hours later or a few days later.

 

So, in order to change reality, the military operation is one thing. But in order to make a quick change in reality, we need you. We need the international community. We need you to put pressure on Hamas. We need you to make the distinction between Hamas and between Israel. And, excuse me, I cannot accept statements like “We call on both sides to halt the violence or to stop their military actions.” There are no “both sides” in this. There is one designated terrorist organization which controls the Gaza Strip, which spreads its agenda of hatred, and which cannot accept our right to live in peace in this region; and there is a state, Israel, a member of the United Nations.

 

You cannot make this comparison between Israel and a terrorist organization. And the only way in which maybe we can shorten the time of the military operation is by making it clear that Israel has the right to defend itself, that Israel can take all the necessary steps to change reality, that the international community supports Israel as it continues to work against Hamas, and is not going to legitimize Hamas.

 

I know that you are talking and your foreign ministers are talking with other leaders in the region. And I hope that you hear from other leaders in this region - those who understand the nature of the Middle East - about the nature of the extremists in the region. I hope that they are telling you the truth. They do not want Hamas to succeed. They have their own radical elements back home. They do not want Hamas to have any kind of victory, because a Hamas victory threatens them back at home.

 

Maybe they cannot say this publicly, I can imagine that. But this is the reality that I want your states to understand. We are not only working against Hamas, but we are representing the need and the desire and the hope of every pragmatic leader and all of the moderates in this region to change the reality; and to send a message that the Middle East is not a neighborhood which the bully of the neighborhood can control, a neighborhood in which violence can work or succeed.

 

And just a part of this effort is the military operation. The other is your attitude and the way you act against terrorism and your attitude towards this operation in the next few days and weeks.