@ProvincialLady1 🙄
A lethal misconception, in Gaza and beyond: disguising indiscriminate attacks as potentially proportionate in discourses on the laws of war
Blog of the European Journal of International Law
https://www.ejiltalk.org/a-lethal-misconception-in-gaza-and-beyond-disguising-indiscriminate-attacks-as-potentially-proportionate-in-discourses-on-the-laws-of-war/
Some exerpts:
"In recent years and, despite the reality, in the last weeks, a trend among laws of armed conflict scholars has consolidated. This trend is in antithesis to the choral denunciation of mass civilian victimization as unlawful and criminal in other conflict theatres (such as, agreeably, in relation to the war against Ukraine). In contrast, bombing campaigns in Gaza have attracted and continue to attract the highest volume of academic commentaries emphasizing the limits of and derogations to civilian immunity from attacks. The ‘unfortunate/tragic but probably proportionate civilian loss of life’ formula has been repeated by countless analyses.
Notwithstanding the structural illegalities of this conflict, it is not new to read abundance of legal commentaries embracing the prism of the potential lawfulness of the killing of crowds of Palestinian civilians. However, what is new is that the embracement of this same prism of validations continues unabated while the killing of besieged, displaced, healthcare-denied and increasingly starving civilians in Gaza assumes shocking proportions by the minute. This trend continues despite top Israeli officials announced this offensive denying the existence itself of innocent civilians, and despite IDF spokespersons made clear this campaign had no accuracy priority.
This post (synthetizing some arguments of a longer article) submits that the described legitimizing prism reproduces some serious misconceptions, particularly on how we should construe the relationship between distinction and proportionality under customary IHL.
Many analyses seem to have so far unduly overexpanded proportionality into the realm of distinction, contributing to the current failure of most IHL and international criminal restraints. Even recent analyses debating in bello proportionality of IDF attacks, each killing and injuring several hundreds of civilians, such as the bombing of the Jabalia refugee camp in Northern Gaza (see e.g., inter alia, Manea), do not mention once the prohibition of indiscriminate attacks, and seem to imply that violations of distinction do not occur unless “direct and deliberate attacks” against civilians or civilian objects are launched.
I do not disagree with the facts indicated by Andrea. However, assuming Hamas members omitted to take passive precautions (determining this must include feasibility considerations, see Schmitt), and assuming tunnels are lawful targets (which can be neutralized or captured via less devastating methods), this does in no way render Palestinian civilians less civilian, less protected, or admissible targets of proximity. It is aerial attacks we are discussing. There is no way, I think, to bomb underground tunnels with GBU-31 warheads without knowingly flattening densely populated neighbourhoods with hundreds of civilians that will certainly be killed.
The customary prohibition of indiscriminate attacks, as a consequence, becomes crucial, and reminds lawyers and armed actors that distinction does not only prohibit direct and deliberate attacks on civilians and civilian objects, it also prohibits attacks renouncing to discern between them and lawful targets. "