For the safety of the author, this article is being published anonymously.
November 14, 2023
Abstract:
This article includes data on the casualties of Palestinian civilians and provides an analysis on Israeli military methods and use of weapons, as well as the systematic lack of accountability, suggesting that the harm inflicted upon Palestinians is intentional. There is clear indication that war crimes are being committed by Israeli forces.
Introduction
The Palestinian-Israeli conflict is an ethnic one, in which both groups strive for gaining a demographic majority and control of the land between the Jordan river and the Mediterranean Sea [1]. In the context of this conflict, the world witnessed grave violations of the International Humanitarian Law (IHL) and the extended targeting of civilians. Intentional and indiscriminate attacks towards non-combatants of both ethnic groups have occurred for almost a century, with recurrent peaks in the cycle of violence.
In the contemporary context of the conflict, the asymmetry of political, economic and military power between Israelis and Palestinians has created a situation in which Palestinians are killed and injured in strikingly higher numbers than Israelis.
Furthermore, the Israeli armed forces are responsible for most cases of civilian and combatant fatalities by far [2]. In Graph 1 [3] we see the astonishing gap in the number of fatalities of Palestinian and Israelis. Graph 2 shows that the Israeli armed forces have committed 94% of the total killings of the whole conflict in the data sample between 2008 and 2023 (not including the war that started on the October 7, 2023, and is still raging at the time of the writing of this report).
Consequently, any analysis that intends to establish the reasons and responsible people and institutions behind the killing of civilians in the context of the Middle East today must begin by looking at the behavior and policies of the Israeli official armed forces. This doesn’t mean that there aren’t other actors that are responsible for the killing of civilians. Israeli armed settlers, Palestinian armed groups and Palestinian unaffiliated attackers are also accountable for this crime and deserve a thorough and serious examination. But the sheer disproportionality in the cases associated with the Israeli forces elicits the necessity for further examination.
From the analysis presented in this report, the Israeli military consciously and willfully uses indiscriminate weapons in densely populated areas with the knowledge that civilians will be killed. The Israeli military and judicial conduct indicate that the decisions to apply and enforce these policies comes from the highest political and military echelon. Additionally, we indicate that the moral justifications given by belligerents from both sides, reprisal and supreme emergency aren't enough to violate the principle of non-combatant immunity.
Data and Sources
Data for this research was primarily retrieved from the Office for the Coordination of Humanitarian Affairs (OCHA) in the Occupied Palestinian Territories (OPT) [4]. This data specifically focuses on Palestinian and Israeli fatalities and injuries in the West Bank, the Gaza Strip and the 1948 boundaries [5] in the period between 2008 until 2023 [6], which were a result of “conflict related incidents”. The data includes “only casualties that are the result of confrontations between Palestinians and Israelis in the context of the occupation and conflict.” Casualties in conflict related incidents that happened inside the 1948 boundaries and do not involve residents of the OPT are excluded. An incident enters the database after OCHA field staff have reviewed and verified it, and it is “validated by at least two independent and reliable sources”. This data gives us information not only of the total of fatalities and injuries, but also details about the age, gender, type of ammunition used, perpetrator and location. The category of injured “refers to people who were physically hurt in a relevant incident and received medical treatment at a clinic or hospital, or by paramedic personnel on site of the incident. This includes people who received treatment due to suffocation by tear gas. People treated due to psychological shock are not included”.
The data also specifies if the victim was a civilian, combatant or status unknown. OCHA’s definition of civilian is: “Whoever is neither a member of security forces (including police) nor fulfills a combat function within an armed group is considered a civilian. The determination about the affiliation of Palestinians killed during hostilities in Gaza was done by the Office of the High Commissioner of Human Rights, in its capacity as Protection Cluster coordinator”. OCHA’s donors are UN member states, mainly European, such as Germany, France and the UK, but also include the US, Russia, Australia and South Africa. Apart from gathering and sharing data, OCHA coordinates humanitarian action in the OPT and different spots in the world, among other functions. When comparing this data with the one of the Palestinian Health Ministry [7], the Israeli government [8], and human rights organizations [9], we found that the differences are minimal. The only noticeable discrepancies are in the proportion of civilians, but this can be explained by the varying number of cases defined as “disputed”. This fact, and the status of OCHA as an international and human rights focused organization, lead us to conclude that the data presented is highly reliable and represents a very precise estimation of the actual numbers.
Other data and information used in this analysis were retrieved from international NGOs such as the International Committee of the Red Cross (ICRC) and Amnesty International; Israeli NGOs like B'tzelem and Yesh Din; international and Israeli press reports from Vice, Aljazeera, Ynet and Haaretz; and information from Palestinian and Israeli historians and academics like Rashid Khalidi and Michael Gross. Official local and International Humanitarian Law documents such as the Geneva Conventions and its Additional Protocols are widely cited as well.
International Humanitarian Law and the Intentional Targeting of Civilians
The international humanitarian law (IHL) is a set of rules designed to limit the negative effects of war, specifically against actors that are not taking part in the hostilities, such as civilians, wounded combatants or medical and religious personnel. What is regarded today as the pillar of IHL are the four Geneva conventions of 1864, 1906, 1929, and 1949, the last of which the previous agreements were updated. Also fundamental are its three supplementary protocols added in 1977 and 2005, and the 1998 Rome Statute which saw the foundation of the International Criminal Court.
These four Geneva conventions are considered universally binding because they have been ratified by all 196 UN member states and the two UN observers, including the State of Palestine. On the other hand, the three additional protocols are not legally universally binding because numerous countries have decided not to sign and ratify them, including some states that have been especially active in military confrontations since the second world war, such as the United States, India, Israel, Myanmar and Türkiye. Palestine has ratified all of them.
In a letter from US Secretary of State George Schultz to then-President Reagan, he explained his recommendation for not ratifying protocols I and II, arguing that, “Certain provisions such as Article 1(4), which gives special status to ‘armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination’, would inject subjective and politically controversial standards into the issue of the applicability of humanitarian law. Protocol I also elevates the international legal status of self-described ‘national liberation’ groups that make a practice of terrorism.” Schultz also insisted that the protocol, “unreasonably restricts attacks against certain objects that traditionally have been considered legitimate military targets” [10].
Schultz’ opinions reflect the standpoint of other nations, which might explain why these protocols haven’t been universally adopted. For instance, France voted against article 51, paragraph 4 of Additional Protocol I, which prohibits indiscriminate attacks on civilians, as it “would seriously hamper the conduct of defensive military operations against an invader and prejudice the inherent right of legitimate defense” [11]. France, nonetheless, would later ratify these protocols.
The 1998 Rome Statute saw the establishment of the International Criminal Court that has jurisdiction over four main crimes: genocide, crimes against humanity, war crimes and the crime of aggression. As with the Additional Protocols, the ICC jurisdiction is also limited and it applies in cases where it involves nationals or the territory of a State Party, or if the case was referred by the UN Security Council when the crime of aggression has been committed, regardless as to whether it involves State Parties or not [12].
The critical component of the IHL is that it makes a distinction between combatants and civilians, both in international and non-international conflicts. According to the Additional Protocol I, article 50, civilians are persons who aren't taking an active part in hostilities and who do not belong to armed forces, including militias, volunteer corps and members of resistance groups. These armed forces are defined as groups that operate under the orders of a central command that is party to the conflict and operate according to the laws and customs of war, carrying their weapons openly while engaged in military deployment but not necessarily being uniformed always. The violation of these rules doesn’t strip combatants from their rights as such. In the Palestinian-Israeli conflict there are several situations in which these definitions are hard to recognize: For example, with reserve soldiers and armed settlers on the Israeli side, or uniformed militias and grassroots volunteer groups on the Palestinian side.
The IHL unequivocally states that the intentional targeting of civilians and civilian infrastructure and property is completely forbidden. The Additional Protocol I, article 51(2) reads: "The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited." Additionally, the Rome Statute, article 8(2)(b)(i) states that: “Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities" is a war crime.
Furthermore, we can find in Additional protocol I, article 52 (2), a definition of a military objective: "military objectives are limited to those objects which by their nature, location, purpose, or use make an effective contribution to military action and whose total or partial destruction, capture, or neutralization, in the circumstances ruling at the time, offers a definite military advantage." Any attack to an object or person who does not enter this definition is considered a war crime. Despite all of this, in conflicts around the world warring parties often give moral justifications to condone the breaching of non-combatant immunity, namely supreme emergency and reprisals.
The Moral Case for Reprisals and Supreme Emergency
Palestinian militants that support the targeting of civilians argue that this is a legitimate retaliation to similar Israeli attacks, and that they are aimed at deterring future attacks and thus protecting Palestinian civilians. Also, they intend to influence Israeli society and political leaders to change their policies in order to protect Palestinians from military occupation and the crime of Apartheid. Further, they argue that the targeting of civilians is a means of last resort derived from the asymmetry of military power and an existential threat.
In a 2021 interview, Yahiya Sinwar, the Hamas leader in the Gaza Strip, when asked about the indiscriminate launching of missiles against Israeli civilians answered: “Israel - which possesses a complete arsenal of weaponry, state of the art equipment, and aircrafts - intentionally bombs and kills our children and women… you can't compare that to those who resist and defend themselves with weapons that look primitive in comparison. If we had the capabilities to launch precision missiles that targeted military targets, we wouldn’t have used the rockets that we did” [13].
Sinwar’s argument is tied to the concept of supreme emergency. He justifies the intentional targeting of civilians as a measure of last resort to prevent future Palestinian casualties and pressure the Israeli government to yield to their demands. This argument has been brought up in other contexts such as in the Allied “area bombing” in Germany or the use of the nuclear bombs in Hiroshima and Nagasaki, where American leadership tried to justify the intentional killing of civilians due to dire necessity or supreme emergency.
Hamas’ leader also justifies the use of indiscriminate missile attacks as a measure of last resort due to the asymmetry of weapons, a complementary argument of supreme emergency, attempting to override non-combatant immunity with the principle of self-defense. Graphs 3 and 4 show the disparity between Palestinian and Israeli fatalities and injuries between 2008 and 2023. Sinwar also insinuates that these attacks come as a reprisal for similar Israeli actions, basically stating that a breach of IHL from the other side legitimizes his own.
And even though Israeli leaders are usually (although not always) careful not to admit the intentional lethal targeting of civilians, they justify the huge scale of civilian harm inflicted by Israeli attacks using similar arguments to those of the Palestinians. Israeli political and military leaders often cite existential threats to Israel’s existence and so called “ticking bombs” or imminent attacks and claim that Israeli aggressions are necessary to prevent serious harm to Israeli civilians. They, too, aim at influencing Palestinian society and leaders to change their behavior and policies. And they also argue that these attacks are a legitimate retaliation to Palestinian offensive action, even in cases where there is no clear military advantage resulting from the attack. They can’t argue as the Palestinian side that there is a military disadvantage that justifies indiscriminate retaliation, but they do indicate that Palestinian military targets are deeply ingrained in civilian populated areas, making it difficult not to harm non-combatants.
Both Israelis and Palestinians usually rely on supreme emergency or necessity and also the concept of “legitimate reprisals”. Reprisals are a form of warfare based on the principles of punishment and prevention, that comes “as an enforcement measure in reaction to unlawful acts of an adversary” [14]. But for it to remain morally defensible it must be forward looking, proportionate and effective. Reprisal directed at civilians as a response to a similar act must be intended at restoring compliance with international law according to the standards of modern limited war, which aims at disabling the enemy as opposed to a total war of annihilation. Thus, any action taken that would prolongate or expand the confrontation is morally refutable.
As witnessed in action, retaliation is rarely an effective strategy. In principle, proponents of retaliation hope to demoralize the enemy, by provoking fear in the population and the leadership, and turn the society against combatants. But the case seems to be exactly the opposite. Attacks on the civilian population seem to strengthen their spirit and incite hatred against the enemy. Furthermore, if we look at the Palestinian-Israeli case, retaliation against civilians or in the form of assassinations of combatants and political leaders, is consistently accompanied by a violent reaction from the opposite site, further endangering the civilians that the reprisal was supposed to protect. The ineffectiveness of reprisals is so evident that this is the reason cited for its prohibition in military manuals of behavior around the world [15].
Moreover, reprisals that aim at the killing of civilians violate the principle of proportionality and the prohibition of indiscriminate attacks [16]. According to some observers, the only morally legitimate and legal way of reprisal directed at civilians is that which limits its civil rights. But this can only occur when it is done to safeguard human rights, and it is done according to the principles of proportionality and effectiveness (Gross, 2005, p. 571). Reprisals that use lethal force should only be directed at military objectives, and for them to remain lawful they must answer to these 5 conditions: 1. Reprisals may only be taken in reaction to a prior serious violation of international humanitarian law, and only for the purpose of inducing the adversary to comply with the law; 2. they must be a measure of last resort; 3. reprisal action must be proportionate to the violation it aims to stop; 4. the decision must be taken at the highest level of government; and 5. the reprisal action must cease as soon as the adversary complies with the law. [17]
Secondly, the concept of supreme emergency can be considered an extension of necessity defense, a notion in municipal law that can exempt from legal responsibility somebody that violates the law to protect himself from imminent harm. According to Israel’s penal law, this applies when someone acts: “in order to avoid consequences which could not otherwise be avoided and which would have inflicted grievous harm or injury [and] provided that he or she did no more harm than was reasonably necessary [nor] disproportionate to the harm avoided" [18].
But when talking about IHL, this approach is not recognized, and any kind of threat does not justify the infringement of the law and the violation of non-combatant immunity. The argument of supreme emergency is thus a moral argument more than a legal one. In the context of the Middle East conflict, this argument makes three independent claims: “First, belligerents may target civilians when their nation faces an existential threat; second, the Palestinians and/or the Israelis face an existential threat; and third, killing civilians effectively forestalls that threat” (Gross, 2005, p. 574).
The estimation of the utility of the action includes the magnitude of the harm that will be produced and the probabilities of success. But these types of calculations are often impossible to make in the context of war, this is why some observers argue that there must be an overwhelming utility, where the action clearly prevents a significantly more harmful outcome. (Gross, 2005, p. 575)
The only instance that could justify an action that violates the fundamental principle of non-combatant immunity would be the ultimate existential threat that an ethnic group or political community could face: a genocide. Because if any threat that derives from war could be used to legitimize the intentional killing of civilians whose prohibition is the most inviolable principle of IHL, then the whole war conventions would be rendered meaningless. Using the supreme emergency argument to justify the nuclear bombing of Hiroshima and Nagasaki, for instance, is extremely problematic. US leaders would argue that the bombings were a military necessity, but by 1945 the United States didn’t face an existential threat from Japan (Gross, 2005, p. 576), and stating that killing hundreds of thousands of civilians in order to save the lives of American soldiers was necessary, completely contradicts the essence of non-combatant immunity.
In Palestine-Israel, an existential threat to any one of the warring parties is never far-fetched. There are strong political and social forces on both sides striving for establishing a demographic majority of Palestinians or Israelis, while nowadays between the Jordan river and the Mediterranean Sea roughly 49% (7.45 million) — are Jews and 50% percent (7.5 million) — are Palestinians [19]. The use of violence to “ethnically cleanse” large areas has existed for at least decades, certainly as a premeditated policy [20].
This was the case in 1948-49 when Zionist militias and governmental institutions, which would soon become the army and institutions of the Israeli state, engaged in a large and organized campaign of genocide of Palestinians. During this campaign roughly half of Palestinian cities and towns were destroyed, and more than half of the native Palestinian population was expelled from their homes [21]. The objective of this campaign was to destroy and erase the Palestinian political and demographic entity in Palestine [22], thus constituting an actual existential threat for this ethnic group. Since then and up until the present, the Israeli government has applied Apartheid policies [23] whose objective is also establishing a Jewish majority in certain areas. A clear example of this is the current genocide campaign in Masafer Yatta in the south of Hebron [24].
The genocidal methods used by the Israeli leadership have been of a lower intensity than those used in 1948 (perhaps with the exemption of some events in the 1967 war). But the asymmetry of power in this conflict means that the existential threat for Palestinians is a tangible and realistic perspective. At least during the lulls in the cycle of violence, there are no clear signs that the Israeli leadership is pursuing policies of total war with the intention of “ethnically cleansing” the country in its totality or on a scale comparable to 1948, but the outbreak of a large-scale conflict can make this scenario realistic especially for the Palestinians living in the Gaza Strip and the West Bank. But even if an immediate existential threat to the Palestinians arises, the action of killing innocent civilians to avert a genocide is morally controversial because it is using evil means to attain a good end. Further, the effectiveness of targeting Israeli civilians intentionally is questionable due to the predictable Israeli retaliation. Thus, invoking supreme emergency as a moral argument in this case is contentious.
As for the Israelis, the concept of an existential threat is very pervasive in Israeli public discourse and collective memory. This is at least partly a product of the genocide committed against Jews in Europe during WWII. Additionally, because of the geopolitical situation of Israel, it wouldn’t be implausible that in the future the right of self-determination of the Jewish settlers and their descendants in Palestine-Israel could be transgressed if a whole restructuring of the power structures in the Middle East occurred. In such a scenario, the existence of a Jewish population in Palestine-Israel could face a tangible threat. But to invoke supreme emergency to try to morally justify the intentional targeting of civilians requires an immediate existential threat, and currently there is no Palestinian political or military force in the whole country that poses such a threat. “Terror, however heinous, does not jeopardize the political integrity of Israel. As a result, there are no grounds for invoking supreme emergency to justify violating humanitarian law” (Gross, 577).
So, as for the moral discussion on reprisals and supreme emergency, we can conclude that the killing of civilians as a form of reprisal remains unjustified as it is an ineffective tactic because it increases the intensity of the conflict and thus violates the principle of limited warfare. Supreme emergency requires an extreme existential threat to be invoked, and even then it remains arguable and probably ineffective. Not to mention that, as we have seen before, the intentional targeting of civilians is completely forbidden under IHL in any circumstance. Nevertheless, the international legal framework does leave some space for unintentionally harming civilians in the most extreme of cases. But defining intentionality during war is not a straightforward task, and besides this, the moral “mitigation” of harming civilians “unintentionally” is not unequivocal.
Intentionality During War
A good way of illustrating the implications of intentionality in war is through the example of terror bombing (TB) vs strategic bombing (SB). As put by Michael Gross, “SBs destroy military targets in order to hasten the end of the war. In doing so, they often kill civilians, whose deaths are unintended but foreseen. TBs aim at population centers. Their purpose is to kill civilians, destroy their infrastructures, and weaken enemy morale in order to hasten the end of the war" [25]. An emblematic example of terror bombing is the allies’ bombing of Dresden and other German cities during WWII. Another example are Israeli policies of mass bombardment of densely populated areas such as the Dahiya doctrine, which has been applied in Lebanon and Palestine [26] also illustrates TB. The suicide bombing campaign of certain Palestinian militant groups during the second intifada, or the indiscriminate firing of missiles in civilian populated areas would also fall into this category, even though in this case the claim of targeting infrastructure wasn’t made as in the other examples. According to IHL, TB is completely forbidden while SB is allowed, and unintentional but foreseen harm to civilians is only admissible in extreme cases and only if it meets certain conditions: it must bring a clear military advantage and it must be proportionate and not indiscriminate [27].
However, establishing the real intentions of an attacker is almost impossible as we cannot access his state of mind before and during the incident. One possible solution to this problem is to use the test of failure: “Would the mission fail if the harmful effects to civilians were avoided?” (Gross, 9). In the case of the SB the answer is no, and for the TB the answer would be yes. Following this logic, intentionality would be better defined as whether evil means were used to attain a good end. This way our attention is focused on the means used and not on the subjective state of mind of the attacker. If we adopt this definition of intentionality, we can allege confidently that if a policymaker approves and executes an attack in which harming civilians or civilian objects is part of the means used to achieve his objectives, then this attack is illegitimate and illegal under IHL. All terror bombing is included in this demarcation. On the contrary, a SB would argue that the damage laid upon civilians plays no role in his plan, and every civilian casualty is in fact lamented. SB would also say that any side benefits resulting from the death of innocent civilians were unintended.
Yet, if the military commanders are aware of the harm that will be inflicted on civilians and acknowledge the benefits of it for their purposes, this violates the principle of intentionality, and this can be certainly the case with foreseen collateral damage: “One cannot acknowledge side benefits the first time and then claim the second time that they are unintended.” (Gross, 565). If we are to follow IHL, attacks must be strictly limited to military necessity. Any violation of the principle of non-combatant immunity, even under the guise of “unintended collateral damage” is a war crime.
Israel’s Indiscriminate Targeting of Civilians
In the Israeli case we can rarely find officials that would willingly admit that “unintended” deaths of civilians are beneficial to their purposes. Despite this, here are some examples of statements made by military personnel that express exactly that:
During the second intifada, in an Israeli military arrest operation in the Al Bureij refugee camp in the Gaza strip, there were heavy confrontations, and a missile was launched from a helicopter in this densely populated area. Ten Palestinians were killed and 20 injured. A senior officer was quoted, in response to the civilian deaths in Al-Bureij, as saying that "a large number of casualties has deterrent value" [28].
During an operation in the densely populated city of Khan Yunis in the Gaza Strip during the second intifada, while trying to arrest two Hamas members, an army helicopter fired a missile at a crowd of Palestinians standing in a plaza outside a mosque. Sixteen civilians were killed, 100 injured, and the two Hamas operatives eluded arrest. In reference to this operation, then-commander of the Israeli armed forces in the Gaza Strip, Brigadier General Yisrael Ziv declared that it was "definitely successful ... We knew that an operation inside a Hamas bastion would entail fighting and casualties, and our assessment was that the crowded conditions were liable to lead to the possibility of innocents being hurt as well" [29].
In 2002, after Israeli forces assassinated nine Palestinian militants while killing six civilian bystanders, one Israeli official remarked: "The liquidation of wanted persons is proving itself useful. This activity paralyzes and frightens entire villages and as a result, there are areas where people are afraid to carry out hostile action." (Gross, 2005, 564).
Innocents being hurt is not an isolated case or a mistake but rather it is the aftermath of widely used policies and methods. One of its main components is the use of indiscriminate weapons in densely populated areas. During its repeating assaults in the Gaza Strip, Israel continuously uses heavy weaponry such as drones and American Apache helicopters firing U.S.-made Hellfire missiles, as well as American F-16's carrying two-thousand-pound bombs which create craters 15 meters wide by 11 meters deep and have a killing radius of 365 meters.
They also use artillery projectiles fired from the U.S.-made M109A5 155mm howitzer with a 50-meter radius kill zone and which inflict casualties within a radius of another 100 meters [30][31].
During the 2014 assault on Gaza, Israeli forces launched 6,000 air attacks and 50,000 artillery and tank shells, killing 2,251 Palestinians (75.2% of them civilians) including 551 children and 299 women [32]. According to UN figures, 142 Palestinian families were completely erased, 742 people in total [33][34]. Apart from this, the bombings also destroyed 16,000 homes, including entire neighborhoods in Shuja‘iya, Rafah, Bayt Lahiya, and Bayt Hanun. “32 medics were killed and 102 were injured in the offensive, in addition to 36 ambulances and civil defense cars that were destroyed or damaged.
Thirteen public hospitals were struck in addition to 17 private and non-governmental hospitals, one of which -- al-Wafa Hospital -- was destroyed. Twenty-three health centers belonging to the ministry were targeted, four of which were destroyed. Four private and non-governmental health centers were also targeted, one of which -- the Khalil al-Wazir Clinic -- was destroyed, according to the Palestinian health ministry [35].
The attacks also damaged 277 UN and government schools, 17 hospitals and clinics, all six of Gaza's universities, as well as over 40,000 other buildings. Around 450,000 Gazans, over a quarter of the population, were displaced during this war. (Khalidi) Maps 1 and 2 (Khuzza'a and Shujaia neighborhoods) show satellite evidence of the destruction of whole neighborhoods [36].
During one of the operations in this war, in a period of 24 hours between July 19-20, elite military units made an incursion into the Shuja‘iya district of Gaza City on the eastern side of the city center. According to American military sources, 11 Israeli artillery battalions fired over 7,000 shells into this single neighborhood. This included 4,800 shells for one 7-hour period: nearly 700 shells an hour, or over 11 per minute, in addition to air bombings. Senior American military and intelligence officials have described this attack as “massive” and “absolutely disproportionate” and have asserted that this amount of firepower would be normally used by the American military only in support of an army corps of several divisions (Khalidim book).
A former crew commander of the Israeli artillery corps stated that “artillery shells cannot be aimed precisely and are not meant to hit specific targets. A standard 40-kilogram shell is nothing but a large fragmentation grenade. When it explodes, it is meant to kill anyone within a 50-meter radius and to wound anyone within a further 100 meters. Furthermore, the humidity in the air, the heat of the barrel, and the direction of the wind can all cause unguided shells to land 30 or even 100 meters from where they were aimed. That is a huge margin of error in somewhere as densely packed as Gaza" [37].
Massive bombing campaigns in urban areas have been repeatedly used by the Israeli army in Gaza as well as in Lebanon during the 2006 war—for example, in the Dahiya neighborhood of Beirut which was flattened by Israeli bombardment. In reference to this, former Israeli chief of staff and current opposition member in the parliament, Gadi Eizenkot said, "What happened in the Dahiya quarter of Beirut in 2006 will happen in every village from which Israel is fired on, we will apply disproportionate force on it and cause great damage and destruction there. From our standpoint, these are not civilian villages, they are military bases. This is not a recommendation. This is a plan. And it has been approved" [38].
Apart from the prohibition on indiscriminate and disproportionate attacks, the attacking army is obliged by IHL to take all feasible precautions to minimize harm to civilians such as warning civilians before an attack when the circumstances require it [39]. We know that in a large number of cases Palestinians are warned by Israeli forces to leave a certain area or building before an attack, although there is no reliable data on what the proportion of these cases in relation to the total number of attacks is. On the other hand, human rights organizations have documented dozens of bombing cases in residential buildings where there is no proof or indication that there was either a military target present or prior warning [40]. At the beginning of the October 2023 conflict, Chief of Staff of the Israeli Air Force, Brigadier General Omar Tishler admitted in relation to the practice known as “tap on the roof” of giving a warning strike with a smaller bomb before the principal bombing. “Tap on the roof” before attacks in the Gaza Strip is not relevant in the days of the current fighting… “tapping on the roof” is a concept relevant to smaller military campaigns, and we are at war. Where there is an enemy and we want to destroy him - there is no “tap on the roof… We are not in a surgical event" [41].
Graph 6 shows the elevated number of Palestinian women and children killed between 2008 and 2023. Graph 7 shows that 41% of the Palestinian fatalities in this period are confirmed civilians. Meanwhile, Graph 8 displays the elevated proportion of women and children within the disputed fatalities, suggesting that the real proportion of confirmed Palestinian civilians killed in the conflict during these years could be even higher.
The massive indiscriminate bombing of entire neighborhoods and villages with weapons is the epitome of Israel’s disproportionate and irregular definitions of what constitutes a legitimate military target. The army doesn’t disclose the reasons or publish any proof of the reasons behind their operations, whether they are bombardments or raids. And in the rare occasions in which they do address certain cases they give vague explanations, stating for example that a specific building constituted “terrorist infrastructure” or that an individual was involved in “terrorist activity” [42], even in cases when the target was a residential building with families inside.
Without any more details provided by the military, it is difficult to assert with certainty how much information decision-makers had when they chose to approve an attack, such as whether they knew that civilians were present. Still, there is plenty that can be learned from events on the ground. On May 9, 2023, at around 2 am, the Israeli army launched an airstrike on the homes of three Islamic Jihad operatives while they were sleeping with their families, in what Israel calls a “targeted killing”.
In the attack on the home of Tareq ‘Iz a-Din (48), he and his two children, ‘Ali (8) and Mayar (10), were killed. Neighbors living in the apartment above him were also killed: Dr. Jamal Khaswan (52), his wife Mirvat (44) and their son Yusef (19).
In the attack on the home of Khalil al-Bahtini (44), he, his wife Layla (43), and their daughter Hajar (4) were killed. Two neighbors, who were sisters, were also killed, Daniyah ‘Addas (19) and Iman ‘Addas (17).
In the attack on the home of Jihad Ghanam (62), he and his wife Wafa (61), were killed. [43]
In an action of this type there are two ways to look at it from a legal perspective, law enforcement or armed conflict. If the target of the assassination is a criminal, he must be dealt with by due process in the frame of law enforcement [44]. In this case. the use of lethal force is restricted to the cases in which an individual has been sentenced to death, engages in criminal activity that immediately endangers the lives of others or severely threatens public order. If lethal force is used outside of these cases, it constitutes an extrajudicial execution which is illegal under international and local law.
If the target of the assassination is considered to be a belligerent agent in the context of armed conflict, then the individual is covered by the obligations of the Geneva Conventions. Assassinations are explicitly prohibited in perfidy [45], which is defined as “acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence” [46]. This prohibition is designed to protect non-combatants and serve essential interests of belligerents by building a minimal level of trust to for example conduct negotiations.
When implemented, assassination must meet all the conditions of humanitarian law as any other type of warfare to remain legitimate. “Self-defensive warfare must meet the test of utility by providing a reasonable measure of defense, of legality by steering clear of perfidy, and of proportionality by protecting non-combatant welfare to the extent possible.” (Gross, 356, assassination) If assassination endangers civilians, one of the conditions it must meet is being interdicted, which means that it must be an action that prevents immediate lethal harm to civilians, a measure of last resort that if, and only if, would prevent otherwise unavoidable damage to civilians. This is the only way that it can justify a violation of non-combatant immunity.
An action that endangers civilians such an assassination also must adhere to the principle of proportionality, meaning that it won’t cause more harm than the benefit it brings [47]. This is a calculation that must also include the possible retaliation, which, as we have seen more often than not, brings more death upon civilians. Besides this, the calculation of utility is not specifically defined in IHL, there is no defined number or proportion of civilian deaths allowed. It depends on each case and might be open to subjective interpretations. But this fact cannot deter us from identifying cases and policies in which not even if we extend the definition of proportionality to its limits, the violation of the non-combatant immunity principle can be justified.
In the case cited above, Israeli military must have known that civilians would be killed and injured in the attack. They know the updated addresses and phone numbers of all inhabitants in Gaza, as Palestinian authorities are compelled to transfer that information to the Israeli interior ministry as part of the Oslo accords [48]. Additionally, Israel possesses extensive intelligence and means to supervise their targets. This is why it wouldn’t be reasonable to think that Israel didn’t know that at around 2am the families, which include a number of young children, would be sleeping at home. Attacking the Islamic Jihad operatives at that specific moment would mean that Israel had information that the operatives were involved in the planning and execution of an imminent attack on civilians, and only the action of killing them with the knowledge that numerous civilians including children would be killed, was going to stop it. This argument cannot stand because the targeted Palestinian operatives weren’t executing a violent attack at the time of their assassination, and the planning or coordination of any attack that they could have been involved in could have been done from another place, by another person, and at another time.
Also, taking into account that the bombing of these three houses constituted the beginning of a big operation initiated by Israel, it means that the higher military and government commands, including the chief of staff and prime minister, must have been aware of and updated about every detail of the situation. Additionally, every attack of this type must be approved by a military legal advisor [49]. This indicates that the decisions about strikes of this nature are being made by the highest officials in political, judicial, and military command.
Lack of Accountability
From the analysis of data and reports regarding Israel's own mechanisms to investigate and prosecute possible infringements of law, we have gathered samples of information about four major incidents in Gaza – the wars of 2008-2009, 2014 and 2018, and the March of Return of 2018 – as well as the West Bank between 2011-2023. The summary of this information is relevant to the day of the reports cited and includes the number of investigations opened in Israel as well as number of indictments and convictions. The data was retrieved from original Israeli government sources and human rights organizations.
2008-2009 Gaza War
Fifty-two criminal investigations were opened by the Military Police Criminal Investigations division (MPCID), with 0 indictments or convictions. Additionally, 100 Command Investigations were made. The army provided information of the outcome of only 10 cases in which everyone was acquitted. Further, the Palestinian Center for Human Rights sent 490 complaints to the military, with only 21 cases where the army responded, acknowledging that they had received the complaint. There were 0 investigations, including cases where entire families were killed. In the Sammouni case, 21 people in one family were killed. Military personnel admitted warning their commander that the approved the airstrike would be in an area where civilians were present in the targeted home [50]. No indictments or convictions were made in a war in which 1,385 Palestinians were killed, including 339 children [51].
2014 Gaza War
After receiving more than 500 complaints, the Military Advocate General (MAG) opened only 19 criminal investigations. The MAG decided to file criminal charges against three soldiers regarding allegations of looting. Two of these soldiers were also charged with obstruction of a criminal investigation [52]. In this war 2,251 Palestinians killed, 75% of them civilians, including 551 children [53].
2018 Gaza March of Return
The army received 234 cases in which Palestinians were killed. The MAG ordered the Military Police Investigation Unit (MPIU) to investigate 36 of the cases. Only one case, where a 14-year-old was killed, resulted in an indictment. Othman Hiles, a soldier was charged with abuse of authority to the point of endangering life or health and sentenced to one month’s military community service. During these protests, which were overwhelmingly peaceful, 223 Palestinians, 46 of them under the age of 18, were killed. More than 13,000 Palestinians were injured in the protests, roughly 8,000 by live fire, 2,400 by rubber-coated metal bullets, and almost 3,000 by tear gas canisters that hit them directly. Of the persons wounded, 156 lost limbs. None of these cases were investigated [54].
2021 Gaza War
Eighty-four incidents were transferred for review by the Fact-Finding Assessment mechanism [55]. Only one of these cases led to an investigation, with no indictments. A total of 261 civilians were killed by Israeli bombings in this war, 130 of them civilians, 67 were children. Most were killed at home or in the vicinity of their homes. Approximately 2,000 people were wounded [56].
Data on West Bank regarding investigations of fatality cases (2011-2023)
From a total of 243 cases reviewed by the army, tallying 270 fatalities and excluding cases the army defines as having a “genuinely combative nature”, there were only four indictments and three convictions. To put this into perspective, from 2008 until 2023 in the West Bank there were 1,007 Palestinian fatalities, including 229 children [57].
The five cases presented above do not constitute an estimation of the total investigations performed by Israeli authorities, rather they are only five instances regarding some of the most important events in which IHL was breached during the last 15 years between Israel-Palestine. Although the data is not complete, it helps identify some tendencies in the Israeli legal system with an exceptionally high level of certainty. An effective justice system not only brings closure to the victims, but also creates deterrence and prevents future crimes. Further, due to the severe discrepancy between the number of convictions and fatalities, it is possible to confidently assert that Israel is choosing not to investigate and prosecute infringements of IHL. It is not reasonable to think that after hundreds of civilians were killed during these conflicts, the prosecution for these crimes was virtually nonexistent. The legal system in place is the result of decisions made by the government. If the government was truly interested in investigating and prosecuting infringements of IHL, there have been numerous opportunities to improve a system that is so evidently flawed. The obvious lack of accountability is another sign that indicates the killing of Palestinian civilians is a product of Israeli policy and not a mistake at all.
Concluding Remarks
Killing civilians intentionally is prohibited by International Humanitarian Law, no matter what. Moral arguments that intend to justify the breaching of this prohibition such as “supreme emergency” and “reprisal” are not enough. Reprisals are ineffective because they escalate the conflict and result in more death from every warring party. The argument of supreme emergency can only be relevant if there is an immediate existential threat such as genocide, and even then it is morally questionable and ineffective. In addition, from the Israeli perspective, it is not relevant because there is no existential threat for Israelis as a political entity or ethnic group [58].
The unintentional killing of civilians is only allowed in the most extreme of cases and under very specific circumstances. As discussed, enjoying side benefits from the unintentional but foreseen killing of civilians for an extended period constitutes evidence of breaching the principle of intentionality. In summary, this report has included a fairly comprehensive analysis of the behavior of the Israeli army, including the examination of data on fatalities; the use of indiscriminate weapons in densely populated areas; the policy of obliterating entire towns and cities through extensive bombardment; the premeditated absence of warning to civilians before carrying out an attack; the deliberate broadening of the definition of what a legitimate military target is and what is acceptable collateral damage; and the calculated lack of accountability for committing war crimes. From this analysis, it can be declared with absolute confidence that the Israeli forces are killing masses of Palestinian civilians intentionally, and that the high numbers of Palestinian fatalities are not a product of mistakes or legitimate collateral damage during warfare. Further, if the Israeli army, under the direction of the Israeli government, were to change its policies and rules of behavior, countless civilians would not be injured or killed. The decision not to address these critical issues is a willful determination made by Israeli leaders, who, if were ever to be tried under a just court, would most certainly be found guilty of having committed war crimes and crimes against humanity.
Sources
[1] In this report, the name Palestine-Israel will be used to describe the territory comprising the West Bank, Gaza and the rest of the 1948 ceasefire boundaries between them which is usually recognized by the international.
[3] The source for all the graphs that appear throughout the report is the OCHA data basis: https://www.ochaopt.org/data/casualties
[6] Palestinian fatalities 01/01/2008-19/09/2023, Israeli fatalities 24/01/2008-31/08/2023, Palestinian injuries 01/01/2008-21/09/2023, Israeli injuries 06/01/2008-19/09/2023
[7] https://web.archive.org/web/20150111023729/http://www.maannews.net/eng/ViewDetails.aspx?ID=751290
[13] Vice News: How Hamas' Leader in Gaza Reacted to the Ceasefire: https://www.youtube.com/watch?v=1Px6AyVjw2A
[16] Additional Protocol I Articles 51(4)- 51(5)(b), Additional Protocol II Articles 13-14
[18] 4 Israel's Penal Law, section 22, cited in Landau Commission (3,11 "Commission of Inquiry into the Methods of Investigation of the General Security Service Regarding Hostile Terrorist Activity," Israel Law Review 2, 3 (Spring, Summer 1989): 146-188
[20] Ilan Pappe, The Ethnic Cleansing of Palestine 86-123
[21] Ilan Pappe, the Ethnic Cleansing of Palestine, XIII
[22] Pappe, Ilan. The Ethnic Cleansing of Palestine, 2006, pp. 39-52
[25] M. L. Gross, Killing Civilians Intentionally: Double Effect, Reprisal, and Necessity in the Middle East: Political Science Quarterly, Vol. 120, No. 4 (Oxford: Oxford University Press, 2006), 558-559
[26] R. Khalidi, The hundred years war on Palestine, (London: Profile Books, 2020), 225. See also “Israel warns Hizbullah war would invite destruction” Yediod Ahronot (https://www.ynetnews.com/articles/0,7340,L-3604893,00.html)
[27] Geneva Convention IV (1949) - Article 51(5), Additional Protocol I (1977) - Article 57(2)(a)(iii), Rome Statute of the International Criminal Court (1998) - Article 8(2)(b)(iv))
[30] The Dahiya Doctrine, Proportionality, and War Crimes - Rashid Khalidi
[31] OCHA Infographics of killing radius and weapons: https://www.ohchr.org/sites/default/files/Documents/HRBodies/HRCouncil/CoIGaza/Kill_Radius_Compared.pdf and https://www.ohchr.org/sites/default/files/Documents/HRBodies/HRCouncil/CoIGaza/Explosive_Weapons.pdf
[32] OCHA: https://www.ochaopt.org/data/casualties
[34] OCHA Infographic on families killed in Gaza https://www.ohchr.org/sites/default/files/Documents/HRBodies/HRCouncil/CoIGaza/IDF_attacks_on_homes.pdf
[35] https://web.archive.org/web/20150111023729/http://www.maannews.net/eng/ViewDetails.aspx?ID=751290
[36] Maps provided by OCHA: red dots are buildings, orange severe damaged, yellow moderate damage and blue and green impact crater
[39] Article 57(2)(c) of Additional Protocol I
[40] BLACK FLAG: The Legal and Moral Implications of the Policy of Attacking Residential Buildings in the Gaza Strip, Summer 2014, B’TSELEM. https://www.btselem.org/download/201501_black_flag_eng.pdf
[41] Ynet, 10/11/2023 Air force senior: “Tap in the roof? Not relevant in a war against an enemy” https://www.ynet.co.il/news/article/bkyjo2mwa
[42] BLACK FLAG: The Legal and Moral Implications of the Policy of Attacking Residential Buildings in the Gaza Strip, Summer 2014, B’TSELEM. https://www.btselem.org/download/201501_black_flag_eng.pdf
[44] Article 2, The European Convention on Human Rights (1950) which does not bind Israel, but the underlying norms carry considerable moral force that cannot be ignored in any democratic nation.
[45] Protocol I, 1977, Article 37
[46] Fighting by Other Means in the Mideast: a Critical Analysis of Israel’s Assassination Policy Michael L. Gross
[47] Article 51(5)(b) of Additional Protocol I, and repeated in Article 57
[52] https://mfa.gov.il/ProtectiveEdge/Documents/IsraelInvestigations.pdf and https://www.timesofisrael.com/idf-clears-troops-in-massive-deadly-bombardment-during-2014-gaza-war/
[55] According to the army’s investigation policy, suspected breaches of the laws of war were transferred to the “General Staff Mechanism for Fact Finding Assessments” (FFA), a body whose sole function is to perform a swift factual review before deciding whether to order an investigation.
[58] Killing Civilians Intentionally: Double Effect, Reprisal, and Necessity in the Middle East Author(s): Michael L. Gross Source: Political Science Quarterly, Vol. 120, No. 4 (Winter, 2005/2006), pp. 577