Gaza – During almost every military attack on the Gaza Strip, Israel maintains that its strikes on residential buildings and neighbourhoods are precise and unambiguously necessary to achieve an operation’s goal of targeting members of Palestinian armed factions. Given its highly sophisticated technology, this might sound credible—Israel claims to possess the most advanced weapon system in the world, after all. Yet, the high percentage of civilians killed in such attacks raises questions about the actual goals of these military operations.
Israel’s latest military operation on the Gaza Strip, which started in the early morning on Tuesday, 9 May 2023, is aimed at targeting members and commanders of the Palestinian Islamic Jihad (PIJ) movement. As of Saturday evening on 13 May, 33 Palestinians had been killed as a result of the ongoing air strikes, including six children and three women. While Israel justifies its pattern of killing civilians as an unfortunate inevitability, claiming that members of armed groups live or hide in residential buildings housing dozens of individuals, it has—in many cases—targeted buildings and neighbourhoods that investigations proved contained no militants. But even if a targeted building contains members of armed groups, is the killing of non-member civilians justified under international law?
The International Humanitarian Law (IHL) is clear about the targeting of civilians. Civilians must be protected in all cases and under any circumstances, says the IHL, and the killing of civilians is considered to be a war crime in both international and non-international armed conflicts. This includes willful killings in international armed conflicts and murder in non-international armed conflicts. If the killing of civilians is conducted as part of a large-scale or systematic attack, it may amount to a crime against humanity.
Although a military attack resulting in civilian deaths may not violate the IHL if it is considered necessary and proportional to a military objective, such circumstances are very limited. The attack must be carried out to prevent an imminent threat, and the harm caused to civilians must not be excessive in relation to the anticipated military advantage. In all cases, states have an obligation to investigate allegations of intentional killings of civilians that involve their armed forces, nationals, or occur on their territory, and prosecute those responsible if there is sufficient evidence. If a state is found responsible for such violations, it must provide complete reparation for the harm caused, including compensation for victims. However, in the vast majority of air strikes carried out on Gaza that inflicted damage on civilians, this accountability process has not taken place.
Israel has breached several principles and rules of international law and international humanitarian law, including the principle of necessity, which allows for measures that are essential to achieve a legitimate military objective and which do not violate the ILH. In the case of PIJ military commander Tareq Ibrahim Ezz el-Din, for instance, an Israeli air strike targeted the family’s apartment at around 2 am on early Tuesday, while Ezz el-Din and his family were sleeping. This indicates that no imminent threat needed to be neutralised at the moment of targeting, as all members of the targeted family, including the member of the armed faction, were unarmed and not planning any attacks.
By conducting the attack, Israel violated Article 3 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War (1949), which stipulates the following:
“In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.”
Therefore, in this case, the concept of “military necessity” is being used to justify the use of excessive and unforeseen violence.
Israel has also repeatedly violated the principle of distinction, which stipulates that the parties to a conflict must at all times distinguish between civilians and combatants in order to spare the civilian population and civilian property, and that neither the civilian population as a whole nor individual civilians can be attacked. Another core principle of international humanitarian law is the proportionality principle, which stipulates that any military attack must be determined depending on the respect of the balance between the objective and the means and methods used as well as the consequences of the action.
The Israeli military is making it a practice to bomb entire floors of residential buildings that are located in densely populated areas, despite knowing that these structures are each home to dozens of civilians, including children and women, only to eliminate one member of an armed faction. This practice certainly does not fall within the principles of necessity, proportionality, or distinction of international humanitarian law.