naraburns nihil supernum
1yr ago
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Israel-Gaza Megathread #1
This is a megathread for any posts on the conflict between (so far, and so far as I know) Hamas and the Israeli government, as well as related geopolitics. Culture War thread rules apply.
At the same time, the attacking party is not relieved from its obligation to take into account the risk to civilians, including the duty to avoid causing disproportionate harm to civilians, simply because it considers the defending party responsible for having located legitimate military targets within or near populated areas. That is, the presence of a Hamas commander or rocket launcher, or other military facility in a populated area would not justify attacking the area without regard to the threatened civilian population, including the duty to distinguish combatants from civilians and the rule of proportionality.
That may be the conclusion HRW wants you to have, but it's not the conclusion born from HRW itself, which expounds on some of the key points in what you quoted.
To start, taking into account the risk to civilians does not mean not letting harm befall civilians as a direct result of your actions. To quote-
The laws of war also protect civilian objects, which are defined as anything not considered a legitimate military objective. Prohibited are direct attacks against civilian objects, such as homes and apartments, places of worship, hospitals and other medical facilities, schools, and cultural monuments. Civilian objects become subject to legitimate attack when they become military objectives; that is, when they are making an effective contribution to military action and their destruction, capture, or neutralization offers a definite military advantage, subject to the rules of proportionality. This would include the presence of members of armed groups or military forces in what are normally civilian objects. Where there is doubt about the nature of an object, it must be presumed to be civilian.
This is what more or less damns Gaza from a Geneva convention laws-of-war prospect. Because Hamas has extremely well established practices of conducting military activities out of civilian objects, and has been running them as the civil authority, the dual-use nature of many Hamas locations doesn't preclude them from being valid military objectives, because dual-use infrastructure that provides an effective contribution to the military action, such that their destruction, capture, or neutralization offers a definite military objective, are categorically legitimate military objectives no matter how many civilians are there. The Geneva convention rules of wars are categorical, not metric- there is no 'if you affect this many civilians, you automatically are illegal' standard.
Further, of the three categories- destruction, capture, and neutralization- you aren't obliged to pursue one over the other, especially if it's beyond your capacity. In the Gaza Strip in particular, where direct capture would be immensly difficult or even impossible, destruction (bombing) or neutralization (power networks) are valid means to target military objectives... which goes back to if they are military objectives, which goes to the presence of providing an effective contribution to the opposing party's miltiary actions. It's a qualify-in system based on threat activities, not a qualify-out system based on civilian proximity.
Which brings in the point of proportionality, which does limit attacks against valid military objectives. Despite how it's often used, proportionality doesn't relate to a 'fair' fight, or by being proportional to the other side's capabilities, or even the size of the weapon itself. To quote again-
An attack on an otherwise legitimate military target is prohibited if it would violate the principle of proportionality. Disproportionate attacks are those that may be expected to cause incidental loss of civilian life or damage to civilian objects that would be excessive in relation to the concrete and direct military advantage anticipated from the attack.
Which comes down to the person who judges what 'excessive in relation to the concrete and direct military advantage anticipated from the attack' is. Since most military attacks in this context have previous obvious military utility- or else the human shield users wouldn't be bothering to put human shields around them- proportionality has far more to do with 'what tool you use,' in a 'don't go bigger than you need to sense,' than 'would you have an advantage,' which was already addressed at the 'are they making an effective contribution to military action' premise and can be as easy to justify as 'the advantage is the increased survival of our forces.' Proportionality in practice is about what effect you actually need to do that, i.e. how much damage do you need to do along the way.
If you can reliably kill a target with a smaller measure, excessive would be using a needlessly bigger option. However, this depends on you actually having the means to do so. Using dumb artillery instead of precision munitions would be excessive if you have the precision munitions to use, since the dumb munitions can be expected to cause incidental loss of life/damage that would be avoidable from the same advantage by a different means. However, using artillery instead of, say, a squad of snipers would not necessarily be excessive, since the advantage anticipated from the artillery could be considerably more than the advantage anticipated from the snipers when things like survival of the force are considered.
This comes to questioning the advantage incurred... but the conventions consistently leave this to the parties involved, based on what they (think they) know at the time. The more legalistic followers will tend to have things like ROE checklists for engaging certain targets, which they use to point at after the fact, but there's no actual prescribed process.
To bring this back to the question of 'if someone is using human shields,' it would depend on what they are using human shields for, and if you had a reliable means for getting the same advantage by a means less likely to kill them, but the answer by the caveats and exceptions conceeded by HRW is a easily-justifiable 'yes.'
If the human-shield user is making an effective contribution to the military action, to the point that their destruction would offer a definite military advantage, then they cease to be civilian objects and become military objectives.
Attacking military objectives is limited by the principle of proportionality.
Proportionality is scoped by the military advantage incurred by engaging the target.
The advantage engaged by the party is determined by the perspective and judgement of the engaging party.
The party's judgement would be based on what the human-shield user is actually doing, and the expected result.
Excessive comes into play when the expected results are contrasted with the benefit and the alternative means to get it.
If there's no other way to neutralize the valid military objective, but doing so would garner a concrete advantage, the human shields are not a legal obstacle to taking out the group to get the military objective they're surrounding.
TL;DR - human shields don't get to automatically nullify any plans to strike a target, but the attacker must still take care to ensure they only strike within proportion.
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Notes -
If someone is using civilians as human shields (or they volunteered to be ones) is it okay to blow them up according to current conventions?
According to HRW, no:
https://www.hrw.org/news/2023/10/09/questions-and-answers-october-2023-hostilities-between-israel-and-palestinian-armed#Five
That may be the conclusion HRW wants you to have, but it's not the conclusion born from HRW itself, which expounds on some of the key points in what you quoted.
To start, taking into account the risk to civilians does not mean not letting harm befall civilians as a direct result of your actions. To quote-
This is what more or less damns Gaza from a Geneva convention laws-of-war prospect. Because Hamas has extremely well established practices of conducting military activities out of civilian objects, and has been running them as the civil authority, the dual-use nature of many Hamas locations doesn't preclude them from being valid military objectives, because dual-use infrastructure that provides an effective contribution to the military action, such that their destruction, capture, or neutralization offers a definite military objective, are categorically legitimate military objectives no matter how many civilians are there. The Geneva convention rules of wars are categorical, not metric- there is no 'if you affect this many civilians, you automatically are illegal' standard.
Further, of the three categories- destruction, capture, and neutralization- you aren't obliged to pursue one over the other, especially if it's beyond your capacity. In the Gaza Strip in particular, where direct capture would be immensly difficult or even impossible, destruction (bombing) or neutralization (power networks) are valid means to target military objectives... which goes back to if they are military objectives, which goes to the presence of providing an effective contribution to the opposing party's miltiary actions. It's a qualify-in system based on threat activities, not a qualify-out system based on civilian proximity.
Which brings in the point of proportionality, which does limit attacks against valid military objectives. Despite how it's often used, proportionality doesn't relate to a 'fair' fight, or by being proportional to the other side's capabilities, or even the size of the weapon itself. To quote again-
Which comes down to the person who judges what 'excessive in relation to the concrete and direct military advantage anticipated from the attack' is. Since most military attacks in this context have previous obvious military utility- or else the human shield users wouldn't be bothering to put human shields around them- proportionality has far more to do with 'what tool you use,' in a 'don't go bigger than you need to sense,' than 'would you have an advantage,' which was already addressed at the 'are they making an effective contribution to military action' premise and can be as easy to justify as 'the advantage is the increased survival of our forces.' Proportionality in practice is about what effect you actually need to do that, i.e. how much damage do you need to do along the way.
If you can reliably kill a target with a smaller measure, excessive would be using a needlessly bigger option. However, this depends on you actually having the means to do so. Using dumb artillery instead of precision munitions would be excessive if you have the precision munitions to use, since the dumb munitions can be expected to cause incidental loss of life/damage that would be avoidable from the same advantage by a different means. However, using artillery instead of, say, a squad of snipers would not necessarily be excessive, since the advantage anticipated from the artillery could be considerably more than the advantage anticipated from the snipers when things like survival of the force are considered.
This comes to questioning the advantage incurred... but the conventions consistently leave this to the parties involved, based on what they (think they) know at the time. The more legalistic followers will tend to have things like ROE checklists for engaging certain targets, which they use to point at after the fact, but there's no actual prescribed process.
To bring this back to the question of 'if someone is using human shields,' it would depend on what they are using human shields for, and if you had a reliable means for getting the same advantage by a means less likely to kill them, but the answer by the caveats and exceptions conceeded by HRW is a easily-justifiable 'yes.'
If the human-shield user is making an effective contribution to the military action, to the point that their destruction would offer a definite military advantage, then they cease to be civilian objects and become military objectives.
Attacking military objectives is limited by the principle of proportionality.
Proportionality is scoped by the military advantage incurred by engaging the target.
The advantage engaged by the party is determined by the perspective and judgement of the engaging party.
The party's judgement would be based on what the human-shield user is actually doing, and the expected result.
Excessive comes into play when the expected results are contrasted with the benefit and the alternative means to get it.
If there's no other way to neutralize the valid military objective, but doing so would garner a concrete advantage, the human shields are not a legal obstacle to taking out the group to get the military objective they're surrounding.
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Wiki link: https://en.wikipedia.org/wiki/Human_shield_(law)
TL;DR - human shields don't get to automatically nullify any plans to strike a target, but the attacker must still take care to ensure they only strike within proportion.
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