Why Israel’s Approach to Civilian Casualties May Not Affect U.S. Support

Last Friday, the Israeli government dismissed two I.D.F. officers and reprimanded three other members of its military after conducting an inquiry into a strike in Gaza that killed seven aid workers with World Central Kitchen, a food-relief group, earlier in the week. Israeli leaders have expressed regret for the incident, but it is only one

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Last Friday, the Israeli government dismissed two I.D.F. officers and reprimanded three other members of its military after conducting an inquiry into a strike in Gaza that killed seven aid workers with World Central Kitchen, a food-relief group, earlier in the week. Israeli leaders have expressed regret for the incident, but it is only one of many strikes that have resulted in the deaths of large numbers of noncombatants during the war, in which more than thirty-three thousand Palestinians have already been killed. During a reportedly tense phone call, on Thursday, between President Joe Biden and Benjamin Netanyahu, Israel’s Prime Minister, Biden made clear that “U.S. policy with respect to Gaza will be determined by our assessment of Israel’s immediate action” on the humanitarian situation there, according to the White House. Over all, however, the U.S. has refused to condition its alliance with Israel on the latter’s accordance with international law, and has repeatedly defended Israel publicly from claims that it is violating international law.

To better understand how countries operate both within and outside the bounds of international law during military operations, I recently spoke by phone with Sarah Elaine Harrison, a senior analyst in the U.S. program at the International Crisis Group. She was previously an associate general counsel in the international-affairs division at the Department of Defense. During our conversation, which has been edited for length and clarity, we discussed how the idea of “proportionality” is being abused in Gaza, how judgments about international law are determined, and whether the Biden Administration is ignoring American laws in its push to aid Israel.

How does one determine if strikes, such as the one that killed the World Central Kitchen workers, are violations of international law?

When you look at violations of international law, you need to have all the information that the party to the conflict had when they conducted the operation or the targeting. What we look at are very fundamental principles of what’s called “international humanitarian law,” or I.H.L., which is the law of war. The four main ones are military necessity, distinction, proportionality, and humanity.

Military necessity is what justifies measures that combatants take to defeat the enemy. Then there’s the principle of distinction, which people might be most familiar with when they’re thinking about strikes, because you have to distinguish between a military objective and civilians. That is an obligation on all parties to a conflict, whether it’s a state or a non-state group. And, if there’s a non-state group involved, you have to distinguish between the militant wing of that non-state group and the political or humanitarian wing of that non-state group, and look at whether the members of the militant wing have a continuous combat function that allows them to be targeted as combatants in the conflict. Sometimes, civilians will take up arms in conflict, and they lose their protection.

Proportionality means that the action cannot be unreasonable or excessive. So, if a party to a conflict is conducting a strike, like if Israel is conducting a strike against a building where they think there are Hamas leaders or members, the assessment they have to make is whether the anticipated loss is going to be excessive when compared with the anticipated direct military advantage. They have to weigh the harm to civilians against that anticipated military objective. What flows from proportionality is an assessment on precautions. Parties to a conflict have to take all feasible precautions to protect civilians and other protected persons and objects when they’re conducting strikes—and they have to take constant care to do so. For example, if you are a military force and you want to conduct a strike against a convoy of cars, and you think that there is an individual in one of those cars who has a weapon, and you have other identifiable information that that individual is a member of the enemy—if there are ways you can strike at that individual and minimize civilian harm to those around the individual, then the law of war requires you to take those precautions.

The last principle, which complements military necessity, is humanity. You can’t take actions that are unnecessary. For instance, if you detain individuals, there is no military necessity to torture those individuals. It also prohibits the use of weapons and methods that inflict superfluous injury or unnecessary suffering. For example, this is why exploding bullets are prohibited in an attack. There’s no legal justification for conducting these actions.

I want to talk more about proportionality. Broadly, it seems that Israel—in its policies or in the directives it has sent to its commanders—has determined that many civilians are allowed to be killed when they are targeting Hamas members.

Right. Setting or preassigning numbers of acceptable proportionality or acceptable civilian casualties does not allow individuals who are then later conducting targeting operations to comply with all of their obligations under international law. Some reporting indicates, at least early on in the war, that targeting was happening via this kind of preset rubric of acceptable civilian casualties. It seemed as though that rubric was being followed, and further action wasn’t being taken. If that reporting is correct, it reflects why there were so many civilian casualties in the immediate weeks following October 7th.

Just using a preset rubric takes away from the proportionality assessment you have to make in the moment. Does the military advantage in this particular strike outweigh the harm to civilians? Is the harm to civilians excessive in this moment? It also takes away from the requirement to take all feasible precautions. If you’ve already been told by senior leaders that it’s acceptable for twenty individuals to die if one Hamas member dies, then what is the incentive to take more precautions and wait, or use different types of equipment?

Yes, you were quoted in the Guardian: “While there may be certain occasions where 15 collateral civilian deaths could be proportionate, there are other times where it definitely wouldn’t be. You can’t just set a tolerable number for a category of targets and say that it’ll be lawfully proportionate in each case.”

That’s right. It’s possible to imagine a scenario where thousands of civilians could die, and it would not be considered excessive, and I.H.L. allows for that, right? And so you have to look at every instance. You have to look at the facts in every single instance to make the determination and apply the law in each scenario.

Recent reporting from Haaretz indicated that commanders on the ground are ordering strikes and acting on their own. You could see how overly broad targeting policies, plus initiative being given to commanders on the ground, could lead to a situation where not much care is being taken to preserve civilian life.

Coupled with certain rhetoric from leadership in the political class in Israel, it further fuels incidents where there might be more civilian casualties. It is a perfect storm for excessive numbers of civilian deaths, which is what we’ve seen.

How should decisions be made about proportionality? What goes into that decision if it’s made properly?

This is not a perfect science. Parties to the conflict get to interpret what this means, and they are allowed to within the standard, which is reasonableness. If you’re ever in a court of law later being prosecuted for indiscriminate bombing, [you would be judged against] what a reasonable commander would have done. And this is why it is quite strange to set up a rubric prior to targeting, because you can’t just put a number—a number above zero—on civilian casualties that are allowed per level of militants in the hierarchy without making specific determinations, such as identifying the military advantage to be gained and asking whether the civilian casualties are excessive. The way that works is that targeting authorities consult lawyers as they’re conducting operations. With very advanced militaries, such as those of Israel and the U.S., there are typically lawyers embedded in targeting cells who help advise on the proportionality assessment and the distinction principle. And so there are a lot of discussions.

In the U.S. government, a lot of times the only tolerable number for low-level fighters was zero. There was a strategic interest in insuring that civilians were protected and not angry or joining the fight because there were many, or any, civilian casualties.

But, at other times, the U.S. government has deemed civilian casualties obviously acceptable.

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