A few days ago, an Israeli military spokesman sat in front of a CNN camera and the American interviewer asked him about the numerous civilian victims in the Gaza Strip, including thousands of minors. And military spokesman Jonathan Conricus expressed regret, but also added: A ratio of two civilians killed to one Hamas fighter killed is actually not bad, but “extremely positive”.
In any case, “compared to any other conflict in an urban area between a military and a terrorist organization that has used civilians as its human shields and has embedded itself in the civilian population.”
Two to one: This ratio, which could represent around 5,000 Hamas fighters killed and around 10,000 civilians killed, quickly sparked outrage elsewhere. More precisely, the seemingly casual complacency with which this Israeli military spokesman commented on this balance sheet provoked, among others, the Secretary General of the United Nations to object. Making such numerical ratios a rule would be “tasteless, to say the least,” said its spokesman, Stéphane Dujarric, in New York. And in fact: This magnitude of civilian casualties is certainly not suitable as a rule.
Actually, zero civilians should be killed. If only “proportionate”
“The rules of international humanitarian law do not contain any mathematical formulas,” says law professor Kai Ambos, who teaches in Göttingen and is also a judge at the Kosovo Tribunal in The Hague. He explains: Actually, zero civilians should be killed. Only if it is truly unavoidable that a strike against a military target will also endanger civilians can this be accepted – as long as it remains “proportionate” compared to the “military advantage.”
This requirement is contained in the 1st Additional Protocol to the Geneva Conventions, a text from 1977, in Article 51. And that means that it must be weighed up in every case: How important is a bomb dropped on a certain Hamas position, for example, and how many civilians will suffer on the other hand?
Karim Khan, chief prosecutor of the International Criminal Court, announces investigations based on “hard evidence”. Here in Ramallah with Palestinian President Mahmoud Abbas (right).
(Photo: THAER GHANAIM/AFP/PPO)
Last week, the chief prosecutor of the International Criminal Court, the Briton Karim Khan, visited the Palestinian West Bank. From Ramallah, he stressed that investigations against Israel were also a “priority” – “and we are moving forward quickly,” he added, “with determination and with the claim that we do not act on the basis of emotions, but only on hard evidence”. Israel rejects this criminal court. But the court has still seen itself as having jurisdiction since the Palestinian leadership declared its accession in 2015. This is how the lawyers from The Hague are now investigating.
“From a legal point of view, it is not the overall outcome of a conflict that must be considered, but rather each individual military strike on its own,” explains Aziz Epik, professor of international criminal law at the University of Hamburg. An extremely important goal – a Hamas command center, for example – can sometimes justify a particularly high number of victims in the logic of international law. On the other hand, even a case with very few civilian victims can be “disproportionate”. “If these are unnecessary civilian casualties because the expected immediate military advantage is small, then that too is a war crime.”
The history of the wars of the 20th and 21st centuries is full of examples in which the proportion of civilian casualties, so-called collateral damage, was certainly higher than it is now in Gaza. There is no need to go back to Vietnam, for example, says Göttingen international law expert Kai Ambos. “Vietnam was crystal clear, back then the USA dropped napalm, it killed indiscriminately. Those were war crimes.” During the conquest of Iraq by a US-led coalition in 2003, many more civilians are said to have been killed than combatants. The exact numbers are controversial.
Although drone warfare is particularly controversial, comparatively few civilian casualties are recorded there, for example in Pakistan, Yemen or Somalia. The USA itself put the proportion of “non-combatant deaths” here at less than five percentunder the stricter scrutiny of organizations like the According to the Bureau of Investigative Journalism, civilians account for between seven and 15 percent of those killed.
“We will have to look at each military strike individually”
So what percentage of “collateral damage” is still permissible under international law? When does violence start to become excessive? “In the case of Gaza, that can only be answered by looking at the particular difficulties there,” says lawyer Christoph Flügge, who was a judge at the UN war crimes tribunal in The Hague until 2017. Only once have the judges in The Hague settled on a quasi-mathematical formula.
That was in 2003 and the case involved a Serbian general, Stanislav Galić. He had a football game with 200 spectators bombed, with only a third of the spectators being soldiers and two thirds being civilians. The tribunal in The Hague ruled that such high levels of “collateral damage” were criminal. The action was a war crime. However, it was also about a goal that was not particularly important militarily. “In the Gaza case,” reminds former UN judge Flügge, “each military strike will have to be looked at individually.” In any case, efforts must be made to avoid civilian casualties as much as possible.