This is a refreshed 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.
The bar for blowing hospital and it not being a war crime is quite high.
The bar is extremely low, as low as 'is it being used as a military position.'
War crime law is not that legitimate military targets (military positions, command posts, munition stores) are made ineligible by the presence of protected classes (i.e. hospitals), but rather than protected classes are made eligible by the presence of legitimate military targets. There are no protected classes of military sites where someone can fire at you, but you can't fire back.
The proportionality principle, which is what limits collateral damage that could kill civilians, is proportionality relative to what is needed to destroy the legitimate military target compared to other means that would achieve the same military effect, not the proportion of military-to-civilian casualties. There are no convention requirements to take military casualties in the process of storming military objectives in order to minimize civilian casualties.
The proportionality principle, which is what limits collateral damage that could kill civilians, is proportionality relative to what is needed to destroy the legitimate military target compared to other means that would achieve the same military effect, not the proportion of military-to-civilian casualties.
Do you have a source for this? Because if this is true, then I've seen such misinformation repeated all the time:
Launching an attack which may be expected to cause incidental loss of civilian life... which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited.
What you cited covers the point in conjunction with the same conventions covering valid military objectives and the revocation of protected sites if they are turned into valid military objectives.
Destroying something so that it no longer contributes to casualties on your forces is a concrete and direct military advantage. This goes back to what a valid military target is, and the conventions are very clear that protected targets are NOT protected if they are converted into valid military targets, even if there are still civilian casualties. As such, there is not requirement for there to be no civilian casualties, or for the belligerant to accept casualties in order to avoid civilian casualities. The onus is on the other belligerent to not place military objectives amongst civilians / to move civilians away from military objectives, not on the 'attacking' beligerant to not engage valid military objectives.
As the collateral damage of any civilians is not a binary disqualifier, proportionality doesn't work as a 'prohibit any attack on a valid military objective that may cause casualties' either-or binary. The porportionality is in the excess to the miltiary advantage... but since the military advantage is judged by the attacker, not the defender, and the anticipated value is often trivial to justify in close-range engagements on force-protection grounds and limiting enemy ability to continue offering mearningful resistance, proportionality would be a functionally dead letter if it was solely a binary (which- by its own working- it isn't).
Rather, proportionality comes into play when something would have no concrete or direct miltiary objective- which is usually when a target is so far away / inconsequential it means nothing for your military force survivial if the target is hit or not- or if you have alternatives that have different effects on the civilians in the course of the legitimate strike. In the face of valid military objective where concrete and direct military is already anticipated, and thus engaging is not prohibited, the proportionality distinction will only apply if you have alternatives with smaller loss of incidental loss- which would then render the overkill-casualties excessive in relations to the military advantage anticipated, because you could get the military advantage anticipated by using a smaller effect and thus the 'extra' deaths are unnecessary.
Thanks! I’ve seen a lot of misinformation around how proportionality actually means that if the ratio of civilians to enemy combatants is high enough, then it’s automatically a war crime. I can see where they come from, as the wording is rather vague, but upon reading the article further:
Australia, Canada and New Zealand have stated that the term “military advantage” includes the security of the attacking forces.
the expression “concrete and direct” military advantage was used in order to indicate that the advantage must be “substantial and relatively close, and that advantages which are hardly perceptible and those which would only appear in the long term should be disregarded”.
Numerous States have pointed out that those responsible for planning, deciding upon or executing attacks necessarily have to reach their decisions on the basis of their assessment of the information from all sources which is available to them at the relevant time.
It’s not clear to me how much of a consensus this is outside of Australia, Canada, and NZ, but the air strikes by Israel most certainly 1) provide immediate and perceptible advantages to 2) the security of its attacking forces, at least 3) as far as the IDF is aware of, unless there’s any evidence that they have engaged in air strikes despite knowing full well that there were no Hamas military assets at the target location.
So there’s indeed a strong case to be made that regardless of civilian casualties, the IDF has not committed war crimes in this particular air strike campaign. Not that anyone already calling it “genocide” would care to change their minds, of course.
It’s not clear to me how much of a consensus this is outside of Australia, Canada, and NZ,
Basically every military that has fought an insurgency or an urban conflict in the last century, or otherwise had to fight a conflict where a house is a battle position, has adopted the force protection argument that some civilian casualties are acceptable. This goes from Russia to the Philippines to Sri Lanka and India to Iran and Saudi Arabia to Colombia and every NATO member.
This is usually the point where I remind an audience that war is hell, and that the laws of wars are about limiting, not preventing, civilian casualties. The conventions on how to wage war 'right' are as much about protecting every single life as a fire break is about stopping forest fires. The effects are good for the greater whole, but the part of the forest within the forest break is fully expected to burn.
So there’s indeed a strong case to be made that regardless of civilian casualties, the IDF has not committed war crimes in this particular air strike campaign. Not that anyone already calling it “genocide” would care to change their minds, of course.
This is generally correct. There will be some specific cases that people will focus on, but these can depend on having insight into the belligerent perspectives, as well as other 'the law isn't what you thought the law was' contexts. For perspectives, nothing in the conventions requires a belligerent to reveal their Intelligence- and thus sources and methods- for why they chose a target, so there are often targets that are legitimate but which may not appear to be when prioritized... and this in turn doesn't even include cases of flawed/wrong intelligence, where the a belligerent can legitimately believe there is a valid target somewhere one isn't. It doesn't become a war crime retroactively if one is duped by a denial/deception campaign. Meanwhile, some things that may seem obviously off-limits are actually covered in other areas of the convention. We had a good example in the first thread, when someone did an actuall review of the convention requirements for delivering aid to civilians- in short, while delivering aid to civilians must be allowed, it doesn't have to be allowed by any given organization to any given organization. Rather, a belligerent must allow a mutually acceptable intermediary to deliver it, so that the there can be some sort of guarantee that the aid goes to civilians and not the beseiged belligerent. As a consequence of that, for example, bombing the border crossings early on is not, from a rules-of-law perspective, 'preventing aid from getting to civilians,' which is forbidden, it is 'preventing resupply to a belligerent,' which is permitted.
Rather than quibbling on legal dynamics few know and fewer actually care about, the better argument against genocide-claimers is the point that, just by the numbers, if the Israelis are trying to genocide the Gaza Strip population... they are doing a really, really poor job at it by even the most pro-Palestinian numbers.
If the goal of the Israeli government and military was to genocide the Palestinian population, we would expect to see massively higher Palestinian casualty rates so far. Like, orders-of-magnitude higher. We'd also have seen considerably different targeting decisions of types of targets- with far more about irrevocably destroying essential infrastructure beyond repair or leveling apartment blocks without organizing evacuations- if they were in a 'just kill them all before anyone can stop us' dynamic.
The proportionality principle, which is what limits collateral damage that could kill civilians, is proportionality relative to what is needed to destroy the legitimate military target compared to other means that would achieve the same military effect, not the proportion of military-to-civilian casualties
And that is actually a high bar in my book. If there are no civilians you are free to overkill.
And no one particularly cares about overkill, because overkill is wasteful and takes away relevant resources for the next engagment. Outside of a few propaganda contexts- which are extremely rare in civilian casualty contexts- civilian-overkill is a military-waste issue as much as anything else.
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Notes -
The bar is extremely low, as low as 'is it being used as a military position.'
War crime law is not that legitimate military targets (military positions, command posts, munition stores) are made ineligible by the presence of protected classes (i.e. hospitals), but rather than protected classes are made eligible by the presence of legitimate military targets. There are no protected classes of military sites where someone can fire at you, but you can't fire back.
The proportionality principle, which is what limits collateral damage that could kill civilians, is proportionality relative to what is needed to destroy the legitimate military target compared to other means that would achieve the same military effect, not the proportion of military-to-civilian casualties. There are no convention requirements to take military casualties in the process of storming military objectives in order to minimize civilian casualties.
Do you have a source for this? Because if this is true, then I've seen such misinformation repeated all the time:
What you cited covers the point in conjunction with the same conventions covering valid military objectives and the revocation of protected sites if they are turned into valid military objectives.
Destroying something so that it no longer contributes to casualties on your forces is a concrete and direct military advantage. This goes back to what a valid military target is, and the conventions are very clear that protected targets are NOT protected if they are converted into valid military targets, even if there are still civilian casualties. As such, there is not requirement for there to be no civilian casualties, or for the belligerant to accept casualties in order to avoid civilian casualities. The onus is on the other belligerent to not place military objectives amongst civilians / to move civilians away from military objectives, not on the 'attacking' beligerant to not engage valid military objectives.
As the collateral damage of any civilians is not a binary disqualifier, proportionality doesn't work as a 'prohibit any attack on a valid military objective that may cause casualties' either-or binary. The porportionality is in the excess to the miltiary advantage... but since the military advantage is judged by the attacker, not the defender, and the anticipated value is often trivial to justify in close-range engagements on force-protection grounds and limiting enemy ability to continue offering mearningful resistance, proportionality would be a functionally dead letter if it was solely a binary (which- by its own working- it isn't).
Rather, proportionality comes into play when something would have no concrete or direct miltiary objective- which is usually when a target is so far away / inconsequential it means nothing for your military force survivial if the target is hit or not- or if you have alternatives that have different effects on the civilians in the course of the legitimate strike. In the face of valid military objective where concrete and direct military is already anticipated, and thus engaging is not prohibited, the proportionality distinction will only apply if you have alternatives with smaller loss of incidental loss- which would then render the overkill-casualties excessive in relations to the military advantage anticipated, because you could get the military advantage anticipated by using a smaller effect and thus the 'extra' deaths are unnecessary.
Thanks! I’ve seen a lot of misinformation around how proportionality actually means that if the ratio of civilians to enemy combatants is high enough, then it’s automatically a war crime. I can see where they come from, as the wording is rather vague, but upon reading the article further:
It’s not clear to me how much of a consensus this is outside of Australia, Canada, and NZ, but the air strikes by Israel most certainly 1) provide immediate and perceptible advantages to 2) the security of its attacking forces, at least 3) as far as the IDF is aware of, unless there’s any evidence that they have engaged in air strikes despite knowing full well that there were no Hamas military assets at the target location.
So there’s indeed a strong case to be made that regardless of civilian casualties, the IDF has not committed war crimes in this particular air strike campaign. Not that anyone already calling it “genocide” would care to change their minds, of course.
Basically every military that has fought an insurgency or an urban conflict in the last century, or otherwise had to fight a conflict where a house is a battle position, has adopted the force protection argument that some civilian casualties are acceptable. This goes from Russia to the Philippines to Sri Lanka and India to Iran and Saudi Arabia to Colombia and every NATO member.
This is usually the point where I remind an audience that war is hell, and that the laws of wars are about limiting, not preventing, civilian casualties. The conventions on how to wage war 'right' are as much about protecting every single life as a fire break is about stopping forest fires. The effects are good for the greater whole, but the part of the forest within the forest break is fully expected to burn.
This is generally correct. There will be some specific cases that people will focus on, but these can depend on having insight into the belligerent perspectives, as well as other 'the law isn't what you thought the law was' contexts. For perspectives, nothing in the conventions requires a belligerent to reveal their Intelligence- and thus sources and methods- for why they chose a target, so there are often targets that are legitimate but which may not appear to be when prioritized... and this in turn doesn't even include cases of flawed/wrong intelligence, where the a belligerent can legitimately believe there is a valid target somewhere one isn't. It doesn't become a war crime retroactively if one is duped by a denial/deception campaign. Meanwhile, some things that may seem obviously off-limits are actually covered in other areas of the convention. We had a good example in the first thread, when someone did an actuall review of the convention requirements for delivering aid to civilians- in short, while delivering aid to civilians must be allowed, it doesn't have to be allowed by any given organization to any given organization. Rather, a belligerent must allow a mutually acceptable intermediary to deliver it, so that the there can be some sort of guarantee that the aid goes to civilians and not the beseiged belligerent. As a consequence of that, for example, bombing the border crossings early on is not, from a rules-of-law perspective, 'preventing aid from getting to civilians,' which is forbidden, it is 'preventing resupply to a belligerent,' which is permitted.
Rather than quibbling on legal dynamics few know and fewer actually care about, the better argument against genocide-claimers is the point that, just by the numbers, if the Israelis are trying to genocide the Gaza Strip population... they are doing a really, really poor job at it by even the most pro-Palestinian numbers.
To take just two stores from Al Jazeera, which has a definite anti-Israeli slant in the conflict to date- on 13 November, Al Jazeera reported on the (Hamas-controlled) Gaza Public Health Ministry's claim that 11,000 Palestinians have been killed in the conflict so far. This is, of course, what the Americans know as a McBigNumber. 11,000 in a month an a half- that's a lot, right?
But nearly a week early, Al Jazeera reported on an Israeli government claim to have conducted more than 12,000 strikes... as of 1 November, nearly 2 weeks before the Hamas death claim. If we accept both claims as true- and both Hamas and Al Jazeera have an even greater incentives to greatly inflate the death claims than the Israeli government does- this is less than a 1-death-per-bomb ratio... in one of the most densly populated urbanized war zones in modern history, when Israeli ability to level entire apartment blocks is incredibly well established.
If the goal of the Israeli government and military was to genocide the Palestinian population, we would expect to see massively higher Palestinian casualty rates so far. Like, orders-of-magnitude higher. We'd also have seen considerably different targeting decisions of types of targets- with far more about irrevocably destroying essential infrastructure beyond repair or leveling apartment blocks without organizing evacuations- if they were in a 'just kill them all before anyone can stop us' dynamic.
Instead, this is where we also remind you that Hamas's militant wing has had an estimated strength in the 30,000 to 40,000 range even before the conflict. Total Palestinian death could triple or even quadruple from the first month, and it would be mathematically possible- though incredibly implausible- for nearly every single one of those casualties to not only be a Hamas member, but a part of Hamas's military component. (And it's not like the military component members are the only legitimate target under the conventions either.)
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And that is actually a high bar in my book. If there are no civilians you are free to overkill.
And no one particularly cares about overkill, because overkill is wasteful and takes away relevant resources for the next engagment. Outside of a few propaganda contexts- which are extremely rare in civilian casualty contexts- civilian-overkill is a military-waste issue as much as anything else.
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