On October 31st, dozens were killed after an Israeli airstrike on the Jabaliya refugee camp destroyed a residential block. According to an international spokesman for the Israeli Defense Forces (IDF), Johnathan Conricus, the strike targeted a senior Hamas figure in tunnels under the camp. When asked by The Washington Post about the strike, and how Israel applies proportionality, he stated “Of course, it’s sad and regrettable that civilians are killed, but it is a legitimate military target,” referencing other Hamas operatives killed. Because the strike was planned, Israel was aware of the likely civilian death toll and deemed it proportional to their military advantage. By framing humanitarian international law principles through a security lens, they can be incorporated into military doctrine to justify actions that would otherwise be incompatible with humanitarian concerns. Israel’s decision to target the camp highlights how the principle of proportionality is operationalised to frame military attacks on civilian areas as legitimate.
The Delineation of Combatants and Civilians in the Proportionality Principle
As new technology, such as drones, allows states to plan and evaluate the consequences of strikes, pre-emptive proportionality calculations have been increasingly invoked in modern conflicts. Notable examples include the United States strikes on electrical infrastructure during the 1991 Persian Gulf War, 2015 Saudi-led coalition operations in Yemen, and the Israeli military’s current war in Gaza.
The 1949 Geneva Convention clearly distinguishes between legitimate military objectives and civilians, who must be protected. Importantly, the convention extends this protection to ‘civilian objects’, such as water facilities, power stations and hospitals.’ However, the concept of ‘dual-use objects,’–objects with both military and civilian functions, such as water and electrical facilities–has emerged but remains unrecognised by international law. As a result, dual-use objects often lose their civilian protection based on subjective evaluations of their possible military use.
In 1977, the adoption of two Additional Protocols (AP I & AP II) to the Geneva Conventions ratified the customary international law principle of proportionality. This principle, a cornerstone of international humanitarian law, regulates incidental civilian damage or death during military operations. Proportionality forbids attacks that cause excessive “incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof” relative to the anticipated military advantage. Importantly, as customary international law, the interpretation of what constitutes “excessive” civilian harm is up to states to define. This complicates international responses and accountability, as states may prioritise security objectives over humanitarian concerns.
Proportionality applies to both intrastate and interstate conflict. In interstate warfare, combatants are clearly defined by the state as part of the military. Since the Second World War, intrastate and asymmetric conflict – conflict between a state and a non-state actor with unequal capabilities – has become more common. In these cases, distinguishing between combatants and civilians is more difficult. The structure of a group is less clear, and individuals may participate in the conflict, but not be a “combatant” in the traditional sense of having a defined role in a military structure.
Not only is it up to individual states to define proportionality calculations and designate dual-use objects; but they can also change these definitions as they see fit. This operational flexibility has blurred the lines between civilians/combatants, changing the norms of war to legitimise the targeting of civilians as part of a larger security objective.
Dual-Use Objects and Proportionality in Practice – Civilian Impacts
During the Persian Gulf War, for instance, a U.S.-led coalition systematically struck power facilities in Iraq–deemed dual-use objects. The immediate civilian deaths were acknowledged but the long-term effects of crippling healthcare, water, and sewage systems that depend on electricity were excluded from proportionality assessments. While improved targeting technology may reduce immediate civilian impact, the broader repercussions remain ill-judged. Since then, an additional 70,000 civilian deaths can be attributed to the destruction of electrical infrastructure.
In March 2015, Yemeni President Abdrabbuh Mansur Hadi, fearing an overthrow by the Houthis, requested military support from the Gulf Cooperation Council (GCC). By April, the GCC, helmed by Saudi Arabia and UAE, had launched naval, air and ground operations under ‘Operation Decisive Storm’ and ‘Operation Restoring Hope.’ The coalition has been scrutinised for its proportionality assessments and massive civilian toll. On October 8, 2016, two coalition airstrikes struck a funeral in the capital of Sanaa. The strike killed more than 150 people and over 500 were injured, immediately receiving international condemnation. The US, which was supplying arms to Saudi Arabia, stated “We thought that [the strike] was particularly egregious… it pales next to anything else that had been done.”
The Saudi-led Joint Incidents Assessment Team (JIAT) concluded that the Sanaa funeral strike was based on faulty intelligence, which overstated the number of security personnel present. Despite public knowledge that the funeral was mostly civilian, no review was conducted before the strike, and officials stated they were not aware that a strike would result in massive civilian casualties. The coalition’s misapplication of proportionality, to facilitate an immediate strike, highlights how states can manipulate this principle to justify rapid military actions. This lack of transparency in determining proportionality undermines accountability and demonstrates how the principle can be manipulated to serve strategic interests.
The Misappropriation of International Law for Security Concerns
As Israeli PM Netanyahu considers sealing off all humanitarian aid into Northern Gaza, potentially trapping hundreds of thousands of Palestinians without food or water, it is necessary to understand how military action is justified through purportedly fact-based military principles. If the plan is implemented, the Northern Gaza Strip will be declared a closed military zone; those who remain will be considered combatants. The U.S. strikes in Iraq, the Saudi-led coalition in Yemen, and Israel’s conduct in Gaza all illustrate how proportionality calculations and the designation of dual-use objects, as state-defined categories, can legitimise norms of targeting civilians and civilian infrastructure. This shows how states reinterpret international law to align with their strategic goals and can blur the boundaries between civilians and combatants. This reshaping of the rules of war results in dire humanitarian consequences.
Edited by Malin Braendeland
The opinions expressed in this article are solely those of the author and they do not reflect the position of the McGill Journal of Political Science or the Political Science Students’ Association.
Featured image by The Guardian