Breaking Down the Recent Upheaval

The Israel-Hamas conflict, marked by uneven cycles of violence, ceasefires and international intervention has been at the fulcrum of a new wave of discourse in International Law. The most recent addition to this list is the Rafah bombings, a series of airstrikes by Israel on Rafah, which is a densely populated city in the southern Gaza Strip. This has resulted in civilian casualties, including women and children, and ensued massive destruction to essential infrastructures like hospitals, food and water shelters. The international community, highly alarmed by this development, has been pushing for the violence to stop and ensure strict adherence to international humanitarian principles, with their new trend saying, “All eyes on Rafah”. On May 30, 2024, the International Court of Justice (ICJ), the UN’s highest court, ordered Israel to immediately cease its military actions in the Rafah Governorate of Gaza that could potentially lead to the physical destruction of the Palestinian population there.

While the soldiers in an armed conflict are not under rigid moral obligations and are granted legal immunity from a near certainty of causing harm to civilians under the Laws on Armed Conflict, the flashpoint of this discussion is to dive into the legality of such a notion by analyzing the concept of collateral damage through the principles of IHL, especially when both sides of the conflict seem to disregard it (called the ‘spiral-down effect’).

The Legal Landscape

The issue presents a complex phenomenon as International Humanitarian Law (IHL) and recent alleged ‘war crimes’ are at crossroads as they collectively lay down the rules that parties in a conflict must follow, especially in relation to civilian casualties, commonly called ‘collateral damage’. While the term is not defined in IHL, international manuals define it according to contextual needs. In a non-partisan manner, let us figure out the principles at play.

In customary IHL, the International Committee of the Red Cross (ICRC) encapsulates the principles of distinction, proportionality and precaution, which are enshrined in Rule 1, Rule 14 and Rule 15 of IHL. (Article 48, 51 and 57 now, in Additional Protocols I). These principles assess the legality of wars – to the extent they would be labeled as ‘war crimes’ and were discussed in the case of Prosecutor v. Gotovina et al. before the International Criminal Tribunal for the former Yugoslavia (ICTY). In the next part, I analyze these principles in context of the Israel-Hamas war, particularly Rafah Bombings.

Principle of Distinction

The Principle of Distinction, outlined in Rule 3, differentiates between civilians and combatants, mandating that only combatants may be targeted. The Gotovina case underscored the obligation to distinguish between civilian objects and military objectives, finding evidence that the Croatian Army (HV) might have treated an entire town as a military target, thereby blurring these distinctions. This principle of ‘Civilian Protection’ is also explicitly discussed in Prosecutor v. Kupreškić, tried before ICTY, where the Court emphasized that there is an absolute prohibition of deliberate attacks on civilians (and civilian objects) during wartime which forms the bedrock of modern humanitarian law and the factors that determine the same are ‘mens rea’ and knowledge about the nature of population.

The court, however, recognized exceptions to this protection in extraordinary circumstances (para 522), such as civilians forfeiting their immunity, inevitable collateral damage, or reprisals against civilians. However, these exceptions must be narrowly interpreted. Additionally, the court invoked the ‘Martens Clause,’ which mandates that international humanitarian law (IHL) be interpreted to maximize civilian protection, guided by principles of humanity and public conscience.

This principle, in our case, seems to have been breached as soon as Israel attacked a civilian establishment, as argued by Palestinian presidency. Additionally, they claim that the attack was a deliberate attempt (having an element of mens rea, similar to Kupreškić), as laid down in Prosecutor v. Krstić, where, addressing the concept of command responsibility, the court found that Krstić was guilty of genocide and crimes against humanity as the killings of unarmed Bosnian men and boys constituted a ‘deliberate attack’ on a civilian population and the commander ‘knew’ or ‘should have known’ how to distinguish between the same.

However, the translucence is uncanny here. In densely populated urban areas akin to Rafah, where Hamas militants operate among the civilian populations, the exercise of distinguishing between combatants and non-combatants can be challenging, potentially hampering military effectiveness and endangering Israeli troops from possible counter attacks. Thus, Israel argues that the collateral damage was inevitable and merely ‘incidental’. This is supported  by the statement of National Security spokesperson John Kirby, who comments that the US is keeping a track on Israel’s activities and that the civilian deaths were the result of a secondary explosion, after the (primary) full blown attack on two of Hamas camps.

Hence, while on the face of it, it seems that the principle of distinction is breached, however, it is argued that Israel’s counter is based on the second exception laid down in Kupreškić i.e. inevitable collateral damage during attacks with military objectives of reprisals against the organised militant camps in Rafah, and therefore, this gives wider scope for the court to decide whether the second exception can be a valid defense for Israel or not.

Principle of Proportionality

The Principle of Proportionality mandates that the incidental civilian loss and damage should not be excessive relative to the anticipated military advantage. In the Kupreškić case, the defense argued that the attack was a justified response to Bosnian military actions, claiming an unforeseen civilian presence. Nevertheless, the ICTY found that the shelling was indiscriminate or deliberately targeted civilians, violating the principle. This aligns with the Doctrine of double intent, stressed in Prosecutor v. Karadžić. Here, the Trial Chamber noted that firing artillery at a densely populated area posed a high risk to civilians, a risk deemed excessive and thus a violation of the principle of proportionality.

Doctrine of double intent extrapolates this stance by putting forward two notions – (i) General Intent, where the perpetrator must willfully target civilians with acts or threats of violence and not by acts that are accidental or reckless; (ii) Specific Intent, where the perpetrator must have the specific and primary aim of spreading terror among the civilian population which must be ‘principal among the aims’ behind the acts of violence.

It is argued, in the case at hand, that the blockade imposed by Israel on Gaza Strip has been in place for over a decade and the actions of Israel are not merely accidental or reckless, constituting the Double Intent and the recent intensification of military operations has led to severe shortages of many essential supplies and medical aid and the acts are highly disproportionate.

Precautions in Attack

Precautions in Attack signifies that the conflict and the parties may take all feasible measures to avoid any such incidental losses. The threshold of precaution is twofold – (i) Precaution in attack, whereby the attackers must take all feasible precautions in the choice of means/methods of attack to minimise collateral damage, and (ii) Precaution after attack, where steps must be taken to minimize the risks for civilians from explosive remnants of war and other allied dangers emanating from the attack.

Article 57 emphasizes ‘feasibility’ in taking precautions during attacks, considering factors such as the prevailing circumstances, available information, and technological capabilities. It also considers alternatives that might achieve similar military objectives with reduced civilian harm, discourages attacks in densely populated areas, advises against using indiscriminate weapons when precise options exist, and emphasizes the importance of warning civilians about dangerous areas. These factors collectively guide the assessment of whether the precautions taken were feasible at the time of the attack.

In Nicaragua v. United States, the ICJ ruled that the United States violated its obligations under customary international law by failing to take reasonable measures to prevent the Contras from laying mines in Nicaraguan harbors regardless of the fact that the state (or non-state actor) is acting indirectly through proxies. The ‘feasibility’ standard was also discussed where it was held that the defense of necessity doesn’t give attackers a free pass and the onus remains on them to demonstrate whether they have genuinely explored and exhausted all feasible options to minimize civilian harm or not.

Israeli PM Netanyahu emphasized the importance of Israel taking “every precaution possible” to protect civilians in Gaza. He stated that the IDF made their “best efforts not to harm” non-combatants. Netanyahu and other Israeli officials argue that their actions are aimed at combating terrorism, maintaining that their military operations are intended to safeguard humanity by neutralizing threats to peace. This clearly shows the intent to prove the feasibility of the attack and the fact that all precautions were duly taken, that is, the collateral damage was a repercussion of a domino effect, started with primary bombings (which were not potent enough to cause an explosion of this sort) and continued by already present explosives in the Hamas base.

It is argued that even though Israel’s counter seems persuasive, coupled with the fact that it is a non-signatory to Protocol I, it is still very well mandated to follow customary IHL. Adding to this, Israel ratified Geneva Convention in 1951 and also rulings of Israeli courts are in consonance with this dictum. Hence, Israel will be bound by the violation of these principles, and remedies can be sought by victims that I discuss in the next part.

WHAT LIES AHEAD – A bargain for ‘collateral damage’?

Despite Israel not being a member of the Rome Statute, ICC Prosecutor Karim A.A. Khan KC has taken steps to uphold international law by submitting applications for arrest warrants against Israeli leaders, including PM Netanyahu and Defense Minister Yoav Gallant. If the ICC pre-trial chamber approves these requests, it would mark a significant move toward accountability, relying on collaboration from ICC member states for enforcement.

The UN Security Council may consider establishing a Fact Finding Commission (FFC) to probe alleged violations of international humanitarian law in a conflict-ridden country, reporting its findings and recommendations back to the Council. The impact of such missions is illustrated by the Eritrea-Ethiopia Claims Commission (EECC), which both nations agreed to form. This neutral body investigated their conflict, assigned responsibility, and awarded reparations for loss of life, property damage, and displacement. The ad-hoc commissions are proposed to work on “truth-reparation-reconstruction” approach which aims for post-conflict healing through accountability, compensation, rebuilding, and addressing root causes and aftermath of such conflicts.

Similarly, Article 2(3) of the International Covenant on Civil and Political Rights mandates that states ensure victims of human rights violations receive effective remedies, including compensation. As both Israel and Palestine have ratified this treaty, they are legally bound by its provisions. This includes the ability of one state party to take legal action against another for violations (Article 4). The states are obligated to uphold the human rights specified in the treaty and are subject to scrutiny by the UN Committee on Civil and Political Rights (CCPR), which can issue recommendations and hold states accountable once a wrongful act is established. In the Israel-Hamas conflict, both parties interpret this definition to support their positions—Israel cites moral grounds for collateral damage, while Hamas claims a right to resist occupation, despite the resultant damage.

This is an asymmetric conflict, where non-state actor, Hamas, has deliberately exploited civilian areas for military purposes. Since Hamas militants use residential neighborhoods, schools, and hospitals as shields, this makes it difficult for the Israeli defense forces to target legitimate military objectives without risking civilian casualties. This tactical advantage with Hamas undermines the effectiveness of IHL principles and places Israel in a precarious position when conducting military operations. The reparations would be a way to ensure rehabilitation, which remains a meager possibility.

Despite attempts, the UN has proved to be defunct or an elite affair when it comes to enforcing its resolutions. The way of sanctions and worldwide condemnation falls deaf to the ears of nations.  The deployment of Peacekeeping forces, governed by Articles 33-38, UN Charter Chapter VI (Pacific Settlement of Disputes), is only an added remedy. This is kept in line with the basic principles of UN peacekeeping operations which revolves around consent of the parties, impartiality, and non-use of force except in case of self-defense.

CONCLUSION

IHL is non-reciprocal, and the protection of civilians is not (only) a deal with other reciprocating states or parties, it is a deal with humanity. The recent bombing of Rafah in the Israel-Hamas conflict brings to the forefront the importance of IHL in governing armed conflicts and protecting civilians, especially when the application of the same becomes too vague and pulled by the thread of the majority stakeholders. The application and enforcement of IHL is quintessential in mitigating the human cost of warfare and ensuring the collateral damage is minimized. As the conflict continues, the international community must remain vigilant and proactive in its efforts to uphold the rule of law and protect the most vulnerable populations.

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Poorva Sharma is a fourth-year law student at Dharmashastra National Law University, Jabalpur.

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Image: Majdi Fathi/NurPhoto via ZUMA Press