The latest Israeli raids in Gaza are said to have killed over 300 people (injuring over 1000 others) with most of the dead being Haman policemen and security officials. Israel has launched the raids in response to the repeated rocket fire into Israel from Gaza. Given the very high Palestinian casualties resulting from Israel’s raids and (as far as I can tell) the very low numbers killed or injured in Israel as a result of rocket fire there will be a debate about whether Israel’s actions are proportionate [I have found it difficult to find precise numbers of Israelis killed or injured by the rockets prior to the Israeli air raids]. Indeed, the UN Secretary General has been quoted as condemning Israel’s “excessive use of force leading to the killing and injuring of civilians” (see here). No doubt, human rights groups and others will accuse Israel of acting disproprotionately under international humanitarian law (IHL). The relevant rule of IHL that will be invoked is the rule that forbids attacks which may be expected to cause incidental loss of civilian life or civilian damage which is excessive when compared with the concrete and direct military advantage to be gained (Art. 51, Additional Protocol I 1977 to the Geneva Conventions of 1949). It is well known that the proportionality calculation is one which is not easy to make in practice nor is it easy to explain in theory. Afterall, one is not comparing two things that are necessarily commensurate, unless one makes a straight forward comparison between life lost and life expected to be saved by the military operation. Using that crude comparision, some will suggest that the taking of over 300 lives in order to save just a handful would be disproportionate (if the operation could be expected to cause such loss of life). I do not intend to disagree with that analysis.
However, I suggest that in this case, starting from the proportionality analysis is to start in the wrong place. The recent Israeli raids raises other more basic legal issues under IHL. The answers to those issues might suggest that one never gets to making a proportionality calculation. The proportionality rule requires a comparision between civilian loss (or life or of property) and the military advantage to be gained. Since we are told that most of the deaths caused by those raids are to Hamas policemen or security officials one has to ask whether these are civilians. If they are not civilians, then they are combatants or fighters who may legitimately be targetted. Furthermore, if they are civilians one will still need to ask whether they are taking a “direct” or “active” part in hostilities so that they lose the immunity from targetting that IHL confers on civilians (Art. 51 (3), API and Art. 13(3), APII). Only if one concludes that they are civilians and that they are not taking a direct or active part in hostilities does one get to the proportionality analysis.
In determining whether Hamas policemen and security officials are civilians or not, one is forced to answer an even more basic question: what sort of conflict is the conflict between Israel and Hamas? Is it an international armed conflict or not? The reason for asking this question is that arguably there are different rules in international and non-international armed conflicts for determining who a civilian is. In an international armed conflict, anyone who is not a priviliged combatant (as defined by IHL) is a civilian. The Israel Supreme Court accepted this in the Targetted Killings case (para. 28). Privileged combatants are restricted to members of the armed forces of parties to the conflict who fulfil certain criteria. There is no treaty definition of civilians in a non-international armed conflict. However, it has been suggested in the San Remo Manual of the Law on Non-International Armed Conflicts that (rule 1.1.2, see here) that fighters in non-international armed conflicts include all members of dissident forces or of organised armed groups.
Without engaging in extended analysis, policemen would, ordinarily be civilians in international armed conflict since they are not members of the armed forces of the State. However, policemen and internal security officials may be fighters in a non-international armed conflict where the police are engaged in the fight. Certainly, members of the “police” force of a dissident group who are used to fight the State authorities will be considered fighters. Alternatively, they will be civilians taking a direct part in hostilities. However, such a determination may require an analysis of the role of each individual policeman as opposed to making a general determination. Unless one takes the view (which some do) that membership in particular organizations is itself taking a direct part in hostilities.
So, to start from the beginning, the first question is what sort of armed conflict is going on in Gaza. Prior to the Israeli withdrawal from Gaza this was clearly an international armed conflict. The Israeli Supreme Court in the Targetted Killings case accepted that fighting in occupied territories between the occupying and resistance forces is part of an international armed conflict. Has the position changed since Israel withdrew from Gaza? This requires one to answer the question whether there is still an occupation in Gaza. If Israel is still the occupying power then the conflict is still international law. Comments are welcome on whether, as a legal matter, the occupation is still continuing.
If the occupation could be said to be at an end, is there any basis for saying that the conflict is now a non-international conflict? If one accepts the argument of the US government that it is in a transnational conflict with Al-Qaeda and that this is a non-international armed conflict then one could argue that Israel’s conflict with Hamas is also non-international . The US govt says that its position is supported by the US Supreme Court’s decision in Hamdan v Rumsfeld , where the Supreme Court applied Common Art. 3 of the Geneva Conventions. However, that is not the only interpretation of the Supreme Court’s decision. There is a good argument to be made that the Supreme Court was only applying Common Art. 3 as a minimum and was not intending to say that transnational conflicts with non-State groups are non-international. Indeed there is a strong argument that whenever a State uses force on the territory of another State – without the consent of the government of that State- even if it is to confront a non-state group, that brings into being an international armed conflict. But there is the rub. If one assumes that Gaza is not occupied territory, it is certainly not a State. So the position is not the same as when Israel used force against Hezbollah in Lebanon in the summer of 2006.
So, analysis of the proportionality of Israeli action will require making a determination of whether Hamas policemen and security officials are civilians or not. If the conflict is international then they would be civilians. But one could argue they are taking a direct part in hostilities based on their membership of the fighting wing of Hamas (if indeed the police forces in Gaza are part of that fighting wing). If the conflict is non-international then, they are more likely to be classified as fighters. Determining the nature of the conflict will require analysis of whether Gaza is still occupied territory.