Vulnerability and International Humantarian Law

The Geneva Conventions of 1949 and their optional protocols contain many elements that clearly derive from considerations of relative or special vulnerability. The VCP states that:

Moral agents acquire special responsibilities to protect the interests of moral patients to the extent that those moral patients are especially vulnerable or in some way depending on the actions and choices of those moral agents. (for more on the VCP see Ethics of Global Responsibility)

The core value of protecting human dignity found in international humanitarian law (IHL) parallels international human rights law (IHRL) but its principles are designed to apply in situations of warfare or armed conflict. The key principle is that of distinction or civilian immunity which requires that,

Parties to a conflict shall at all times distinguish between the civilian population and combatants in order to spare civilian population and property. Neither the civilian population as such nor civilian persons shall be the object of attack. Attacks shall be directed solely against military objectives. (Crimes of War - An Educator's guide. ).

This principle, and the other core principles of IHL, such as concerning the treatment of wounded combatants or those who have surrendered, deal with what in just war theory is called jus in bello, that is, the law dealing with the moral and lawful means of war-fighting, not with the justification parties to the conflict have (or believe they have) for engaging in armed conflict, which is called jus ad bellum. Both parties to armed conflicts are equally bound by the principles IHL, whether or not they have a "just cause" for going to war. Moreover, the fact that one party to a conflict may have breached IHL and have committed war crimes does not give license to the other party to do likewise. All parties are bound by IHL at all times.

The VCP provides an ethical basis for the principles of IHL in that in situations of war and armed conflict civilians are clearly relatively vulnerable to harm as compared to armed, trained, and equipped soldiers. Civilians, whether they be women, children, or men who are unarmed and are not presenting a threat to military forces, must be protected because of their relative vulnerability. Similarly, soldiers who are wounded are vulnerable and must be protected, and so are soldiers who have surrendered and laid down their arms. It is a war crime and a violation of IHL to kill former combatants who have surrendered.

It is also quite counterproductive since if the opposing forces do not trust that if they are captured or forced to surrender they will be treated humanely, they have a greater incentive to fight to the death. In the closing days the WWII German soldiers more willingly surrendered to Allied forces than they did to the Soviet Army because the latter was under orders to "give no quarter" and take no prisoners.

The Geneva Conventions establish four general principles that are designed to regulate armed conflict so as to balance the attainment of legitimate military objectives with the protection of noncombatants:

1. Military Necessity: IHL seeks to ensure that there is a considered balance between civilian cost and military gain. The concept of military necessity acknowledges that armed forces have a legitimate interest in winning a battle or war, and that they can take military actions required to defeat their opponent. However, military necessity is always constrained by the humanitarian rules of IHL. Military necessity can never be a justification for violating the other rules of international humanitarian law, since it is already allowed for within the law.

2. Humanity: A principle that forbids the inflicting of suffering, injury or destruction not necessary for military purposes. This principle sets the framework for much of international humanitarian law, including restrictions on attacking civilian targets, use of unnecessarily cruel weapons, and humane treatment of prisoners.

3. Distinction (civilian immunity): A principle that attacks should be directed only against military targets. Some potential objectives are granted immunity, namely the general civilian population, places, localities, or objects used solely for humanitarian, cultural, or religious purposes (hospitals, churches, mosques, schools, museums, etc). Such immunity is lost if these localities are used for enemy military purpose. Yet, there is always a presumption in favor of the immunity.

4. Proportionality: A principle relating means to ends, used to determine the lawfulness of any armed attack which causes civilian casualties. "Collateral or incidental damage occurs when attacks targeted at military objectives cause civilian casualties and damage to civilian objects." "As formulated in Additional Protocol I of 1977, attacks are prohibited if they cause incidental loss of civilian life, injury to civilians, or damage to civilian objects that is excessive in relation to the anticipated concrete and direct military advantage of the attack."(Ibid).

It is important to think clearly about these principles in order to understand the criticisms that international human rights organizations raise about the behavior of parties involved in armed conflict, since they base their judgments on these principles IHL.

So, for examples, Human Rights Watch and Amnesty International, and indeed every responsible human rights organization, has condemned the firing to Qassam rockets by Hamas militants into Israeli towns and cities as a war crime. The reason is that these weapons are inherently indiscriminate and they are not being used against military targets; they are being used against the civilian population of Israel. No one would for a minute take seriously a claim by Hamas fighters that they are, in fact, not intending to target civilians, but only Israeli military targets, but that, unfortunately, the only weapons that they have available are inaccurate and sometimes miss their intended targets and cause collateral damage to civilians.

If a weapon is inherently indiscriminate and is likely to cause civilian causalities that are disproportionate to any conceivable military advantage that might be gain from their use, they should not be used. It is not sufficient, in other words, for parties to a conflict to merely claim that they are not intending that their weapons kill or injure civilians; they must act so as to insure that civilians are protected from harm unless "military necessity" requires otherwise. The act of firing rockets into cities is clearly not required by military necessity, so this case is an easy call for the human rights NGOs.

Other cases present greater challenges in applying IHL to concrete events. In recent days both Amnesty International and Human Rights Watch have issued reports criticizing the Israeli Defense Forces for using artillery shells containing white phosphorus in densely populated civilian areas of Gaza. (http://www.amnestyusa.org/document.php?id=ENGNAU200901199045&lang=e&rss=recentnews.)

White phosphorus is a highly incendiary substance that ignites on contact with oxygen. According to the Amnesty researchers who collected the evidence of its being used,

"Yesterday, we saw streets and alleyways littered with evidence of the use of white phosphorus, including still burning wedges and the remnants of the shells and canisters fired by the Israeli army," said Christopher Cobb-Smith, a weapons expert who is in Gaza as part of the four-person Amnesty International team.

"White phosphorus is a weapon intended to provide a smokescreen for troop movements on the battlefield," said Cobb-Smith. "It is highly incendiary, air burst and its spread effect is such that it that should never be used on civilian areas.”

"Donatella Rovera, Amnesty’s researcher on Israel and the Occupied Palestinian Territories said that such extensive use of this weapon in Gaza's densely populated residential neighbourhoods is inherently indiscriminate. "Its repeated use in this manner, despite evidence of its indiscriminate effects and its toll on civilians, is a war crime," she said."

In recent days, before the cease fire, white phosphorus artillery shells landed near an UNRWA compound and al Quds hospital causing fires and civilian causalties.

We warned the Israelis hour by hour through the night of the vulnerabilities here as the shells came closer and closer, and shrapnel was coming into the compound on a regular occasion," John Ging, UNWRA's Gaza director of operations, told the media. "Nonetheless, we have now been subjected to these direct hits."

Israeli Prime Minister Ehud Olmert apologized for the attack, but said Israeli forces had come under fire from the UN compound. "It is absolutely true that we were attacked from that place, but the consequences are very sad and we apologize for it," he said. (http://www.hrw.org/en/news/2009/01/16/israel-stop-shelling-crowded-gaza-city)

The doctrine of "military necessity" is sufficiently vague as to make it a difficult call as to whether the behavior of the IDF in this case was in fact a war crime. If indeed it is true that there were Hamas fighters attacking IDF soldier from or near the UNWRA site, then it is possible that military necessity required the use of these weapons in order to protect IDF soldiers on the battlefield.

Nevertheless, both AI and HRW have called for the cessation of the use of white phosphorus shells in Gaza, based largely on the pattern of evidence that the use of white phosphorus shells in crowded civilians areas is likely violate the principle of discrimination:

Human Rights Watch believes that the use of white phosphorus in densely populated areas of Gaza violates the requirement under international humanitarian law to take all feasible precautions to avoid civilian injury and loss of life. This concern is amplified given the technique evidenced in media photographs of air-bursting white phosphorus projectiles. Air bursting of white phosphorus artillery spreads 116 burning wafers over an area between 125 and 250 meters in diameter, depending on the altitude of the burst, thereby exposing more civilians and civilian infrastructure to potential harm than a localized ground burst.(http://www.hrw.org/en/news/2009/01/10/israel-stop-unlawful-use-white-phosphorus-gaza).

On January 7, 2009 an IDF spokesman told CNN, "I can tell you with certainty that white phosphorus is absolutely not being used." But on January 17th AI's researchers found indisputable evidence that it has been used in Gaza. The BBC reported on January 15th that white phosphorus shells had been used against the UN compound, and that doctors in hospitals had been treating many civilians with serious and unusually painful burns that are consistent with exposure to white phosphorus. (http://news.bbc.co.uk/2/hi/middle_east/7831424.stm)

It appears that the IDF may not have been wholly truthful when it denied its use of this weapon, but of course, control of information about battlefield methods and tactics is standard operating procedure. But, given the evidence, it is hardly credible that the IDF took every reasonable precaution to prevent civilian casualties in the Gaza conflict. It is not sufficient to claim that civilian casualties in Gaza were not intended and that they are regrettable: international humanitarian law requires that the strong take every reasonable precaution to protect the weak, defenseless, and vulnerable from unnecessary harm and injury. Given the high number of civilian casualties produced the the Gaza war, it is evident that the IDF did not do this.

The fact that Hamas is also guilty of war crimes, and that it may have employed civilians as human shields, a practice that is also a war crime and a violation of IHL, cannot be used to condone or excuse Israeli violations of international humanitarian law. Israel is responsible for its own behavior. As the smoke clears and reveals the damage produced by this conflict, I expect it will become increasing clear to unbiased observers that the Israeli military action produced an unacceptably disproportionate number of civilian casualties relative to the military objectives it achieved.