By Eitan Diamond*
Due to the expansion of urban spaces as well as changes in methods and means of warfare, the focus of combat in contemporary armed conflicts is continually shifting from the field to the city. The armed conflicts in Gaza and Lebanon in which Israel was involved are illustrative of this trend.
Combat in densely populated areas gives rise to a series of operational, moral and legal challenges. Such challenges arise not only for the belligerent parties, but also for other entities operating in the war zone, including the International Committee of the Red Cross (ICRC), which is tasked with protecting and assisting the victims of war and which endeavors to ensure that the law applicable in armed conflict, international humanitarian law, is respected.
Two charged questions arise in this context: to what extent, if at all, is an army required to risk its own personnel in order to spare the lives of civilians in enemy-controlled territory? What methods and means of warfare may be used in populated areas?
These questions are inter-related. The concern for soldiers’ wellbeing creates an incentive to strike the enemy from afar using means such as artillery fire or aerial bombardment. When the armed forces are nevertheless required to approach the enemy, they will have an interest to employ methods and means of warfare that reduce the risks to which they are exposed as much as possible. This can result in practices such as the use of preventative fire against all persons suspected of being hostile and the screening of soldiers with means like white phosphorous. However, the use of such methods and means of warfare in densely populated areas heightens the risk that civilians will come to harm.
Moreover, when many civilians are caught in the conflict zone there is often an inverse relation in the distribution of risks – the more risk the soldiers assume, the less the threat for civilians, and vice-versa.
Since every human life has inherent value, an army operating in populated areas may not give absolute preference to its soldiers over the civilians on the other side. For the same reason, it is also clear that an army must care for the lives of its soldiers and may not treat them as cannon fodder. The difficult question that must be decided is how to balance between the competing values – to what extent must an army risk its soldiers to spare civilians on the opposing side?
Answering this question necessarily requires the exercise of discretion, taking into account the concrete circumstances of each individual case. However, the scope of this discretion is delimited by the norms of international humanitarian law. Under this law, each party to an armed conflict must at all times distinguish between civilians and civilian objects on the one hand and combatants and military objectives on the other, and may only direct its operations at the latter. Even an operation directed at a legitimate target is prohibited if expected to cause incidental damage to civilians which is excessive in relation to the concrete and direct military advantage anticipated. Furthermore, the parties are required to take all feasible precautions in order to minimize the risks to which civilians are exposed as a consequence of their actions.
Some important operational conclusions can be deduced from these principles.
First, notwithstanding the legitimate interest of preserving the lives of soldiers, as a general rule, means of warfare with an expansive impact area – such as white phosphorous and explosive weapons – must not be used in densely populated areas. While it is true that such means of warfare are not generally unlawful in themselves, there is a high probability that their use in densely populated areas will cause harm to civilians in violation of core principles of international humanitarian law.
Second, considerations of force protection cannot justify indiscriminate fire and do not permit deviation from the rule whereby in situations of doubt whether a person is a civilian or combatant he must be presumed to be a civilian and must not be targeted.
It is undeniable that observing these rules may come at a very high price; however refusal to pay this price betrays irreverence towards the values of human dignity and purity of arms without which military force is void of any moral validity or legal authority.
[The article was published on March 1, 2012 in the Jerusalem Post]
*Adv. Eitan Diamond is an expert on international humanitarian law and serves as legal adviser for the Delegation of the International Committee of the Red Cross in Israel and the Occupied Territories.
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