Israel is coming under increasing criticism for its actions in Gaza, where more than 11,000 people have been killed, according to Palestinian officials, the vast majority of them civilians. This follows Hamas attacks on Israel last month that killed around 1,200 people.
That’s about 200 fewer casualties than Israel had been citing for more than a month. In a text message to reporters on Friday, a spokesman for Israel’s foreign ministry said “around 1,200” is now what he called “the official number of people” killed by Hamas militants on October 7.
Targeting civilians is a war crime. But what if there are civilians in or near a legitimate military target? This is where something in the laws of war called “proportionality” comes into play. As in, the military advantage must be proportionate to the loss of civilian life.
In such a case, the U.S. military uses what’s called a “collateral damage estimate,” or CDE, which determines how many civilians would be killed or injured when a military target is hit, said Michel Paradis, a human rights lawyer who teaches Columbia Law School.
And then you realize how valuable the goal is. If it is a member of al-Qaeda planning the next attack, the calculation may include one or two possible civilian deaths, but if the target is, say, Osama bin Laden, a higher number of likely civilian deaths may be considered acceptable. The figures are generated by military and civilian officials and are classified. And a decision to hit that target could go up the chain of command, depending on the number of casualties.
“This is an oversimplification,” Paradis said, “but if the CDE is, for example, 1, then a lieutenant can order the strike. If it’s 10, it goes to a major, if it’s 100, it goes to a colonel, and if 1,000 it has to go to a general. Along the way, you also have military lawyers consulting in the process, hoping to keep you honest.”
WHO’s in charge?
“Who decides proportionality?” asks Aaron O’Connell, a retired Marine colonel who teaches at the University of Texas. He presented this scenario: “It’s a reasonable person standard, and the standard is this: As long as the violence is intended for a legitimate military target, like a Hamas command center under al-Shifa hospital, collateral damage is acceptable. Whether 20, 200 or 2,000 non-combatants are killed is the question that the hypothetical person must answer in order to determine whether war crimes occurred. A fairly loose standard.”
Israeli officials have said they will take steps to limit civilian casualties, but it fell to Pentagon official Dana Stroul to provide more details during a hearing Wednesday before the House Foreign Affairs Committee on the war between Israel and Gaza.
“They have put down 1.5 million leaflets in Gaza asking civilians to evacuate,” Stroul said. “They have sent over hundreds of thousands of text messages and made phone calls to cell phones… In our conversations with the Israel Defense Forces, they have made it clear that they assess collateral damage estimates before going on strikes.”
Israel is known to do much more in the way of preventive measures, says Paradis, the human rights lawyer; this has not always been consistent.
“The most famous of these is ‘roof knocking’ where they drop a small but high explosive on the roof of a building that will be the target of an attack,” he said. “They wait 15 minutes to an hour to let people evacuate and then they carry out the strike.”
But the attacks two weeks ago on a suspected Hamas leader inside a tunnel next to the Jabalia refugee camp in Gaza raised questions of proportionality and led to accusations of war crimes being committed by Israel. About 50 civilians were killed in the attack.
“Given the high number of civilian casualties [and] scale of destruction following Israeli airstrikes on the Jabalia refugee camp, we have serious concerns that these are disproportionately large-scale attacks that may amount to war crimes, the UN High Commissioner for Human Rights said in a statement.
In fact, Foreign Minister Anthony Blinken called on Israel to do more to protect civilians. Speaking to reporters in New Delhi, Blinken said: “Too many Palestinians have been killed. Too many have suffered in recent weeks. And we want to do everything to prevent harm to them and to maximize the help that gets them. ”
The question of proportionality “is quite subjective,” said a retired senior military officer who served in the Middle East, requesting anonymity given the sensitivity of the subject. “The attacker makes the decision, but ultimately public opinion will decide. Israel will likely do what it thinks it has to in order to win, while trying to mitigate the domestic and international consequences using as much precision as they find appropriate.”