MAY 18 ― There are two categories of armed conflict under the law: international (or inter-state) armed conflict (IAC) and non-international armed conflict (NIAC), which takes place within a state.
But because of the changing nature of warfare, more contemporary jurists like Meredith Reid Sarkees and Frank Whelon Wayman (2010) expand the categories into Inter-State, Extra-State, Intra-State and Non-State. Valerie Epps (2013) too identifies more than two, namely: Inter-State Armed Conflict, Armed Conflict by States Against Overseas Non-State Entities (which is of two types) and Internal Armed Conflict.
Epps’ categorisation is useful as one can identify the armed conflict in Gaza as of the second type, where a state is engaged in combat against a non-state entity. (Sarkees and Wyman categorise this as extra-state armed conflict.) As such, the rules of armed conflict apply ― certainly in Gaza.
It may not go well with some that Israel is identified as a state while Hamas as the non-state entity. But Malaysia has reiterated that it is firm on its stand on a two-state solution to the Palestinian-Israeli conflict.
Be that as it may, the conflict in Gaza shows, yet again, that civilians are the major victims of armed conflict. As far back as 1996, Ruth Leger Sivard duly observed that armed conflicts “are now more life-threatening for non-combatants (civilians) than for those fighting them. In the 1960s civilians counted for 63 per cent of the recorded war deaths; in the 1980s for 74 per cent; and in the 1990s the rate seems to be going higher still.”
Many writers have similarly observed that “civilian deaths have outnumbered military deaths.” (Clemens and Singer, 2000) But it’s not just the numbers; it’s how disproportionate the number of civilian deaths to military deaths and the civilian displacement, disease, deprivation and famine in armed conflicts.
If a picture tells a thousand stories, pictures of civilian casualty, displacement, disease, deprivation and famine tell us thousands of stories of disproportionality in Gaza. This despite a central rule of armed conflict that regulates the conduct of hostilities essentially permitting civilian casualties only when they are incidental to an attack on a legitimate military target.
The rule is called the collateral damage rule, also known as the proportionality rule. It is meant to offer protection to civilians in wartime (Epps, 2013). Ten years earlier, Judith Gardam (1993) explained the rule as a fundamental component of the law on the use of force and the law of armed conflict. It is “a balance to be struck between the achievement of a military goal and the cost in terms of lives.” According to Gardam, “in the law of armed conflict, the notion of proportionality is based on the fundamental principle that belligerents do not enjoy an unlimited choice of means to inflict damage on the enemy.”
The fundamental principle is otherwise put as one that distinguishes military personnel (combatants) and military objects, on the one hand, and civilians and civilian objects, on the other hand. Epps explains as follow:
“Civilians and civilian objects may not be attacked. Combatants and military objects can be attacked. When a combatant kills or injures an opposing combatant or destroys a military object it is not a crime under the laws of armed combat. Although civilians or civilian objects may end up being killed, injured, or destroyed in warfare, such casualties are only tolerated when the civilian destruction is incidental to an attack on a legitimate military target, and then only when the civilian casualties are not considered likely to be excessive in relation to the concrete and direct military advantage anticipated.”
In simpler words, an attack must be directed against a military object with means which are not excessive in relation to the military objective.
Thus, when a missile is fired it must target the opposing combatants or a military target. It cannot be fired to target civilians and civilian objects, like the building housing Al Jazeera and AP news agency which was flattened to ground zero by Israeli missiles. Or the Palestinian enclave that was the target of Israeli strikes which killed Palestinian civilians in the Gaza Strip on Sunday, resulting in the worst daily toll in almost a week of deadly clashes.
According to AFP journalists, dozens of air strikes were carried across the densely populated territory in just a few minutes.
To be sure, Hamas is also subject to the same rules of conflict.
Cries of war crimes and crimes against humanity are valid. UN Secretary-General Antonio Guterres cannot just be “gravely concerned” and “deeply saddened to learn of increasingly large numbers of casualties, including children, from Israeli airstrikes in Gaza, and of Israeli fatalities from rockets launched from Gaza.”
He must act.
