n the wake of the latest round of fighting between Israel and Hamas, Israel remains in the spotlight for the civilian casualties and widescale destruction of civilian areas caused by its attacks on Gaza. Like most democracies whose air wars kill large numbers of civilians, Israel claims the moral high ground. Though acknowledging that the harm caused to civilians was regrettable, Israel argues that its armed forces took all feasible precautions to avoid it, while taking care to aim their strikes at Hamas military targets. By contrast, according to Israel, Hamas was targeting Israeli civilians directly and intentionally.
But this kind of thinking misses an important point in the laws of war. The requirement to avoid indiscriminate attacks is more than just an injunction against targeting civilians directly. It also prohibits attacks using weapons systems that would be incapable of being directed at a specific military objective in the particular context of their use, because their effects cannot be limited or are of a nature to strike military and civilian objects without distinction.
The rule prohibiting indiscriminate attacks, found in Article 51 of the 1977 Additional Protocol to the Geneva Conventions, was the basis for banning anti-personnel landmines, biological weapons and chemical weapons, among others. But it is also a general principle meant to guide targeting practices even where specific weapons systems have not themselves been explicitly banned. And it is a rule worth considering as the international community assesses the actions of Israel in Gaza and the wider question of how to apply humanitarian law in urban spaces, in particular.
This conversation is already taking place in high-level forums. By coincidence, the Israel-Hamas conflict occurred just ahead of this week’s previously scheduled discussions at the United Nations on the organization’s Protection of Civilians mandate. And as highlighted in a briefing to Security Council ambassadors on the issue by the U.N.’s emergency relief coordinator, Mark Lowcock, the choices of weapons systems and target contexts by belligerents have significant implications for protecting civilian lives during conflict.
What observers are rightly beginning to ask is whether it can ever be reasonably claimed that it is possible to use explosives discriminately in urban areas. That is because explosive weapons in densely populated urban areas simply cannot be used in a precision manner or be limited in the ways envisioned by the Geneva Conventions. As Lowcock pointed out Tuesday, 90 percent of the people killed when explosive devices are used in urban settings are civilians, compared to 20 percent when they are used in rural areas. Even the most carefully conducted attacks using explosives have wide area effects. Civilians are harmed by shrapnel, shock waves and fire. They are buried in rubble. Even if they survive, the destruction of civilian property and infrastructure claims lives.
Explosive weapons in densely populated urban areas simply cannot be used in a precision manner or be limited in the ways envisioned by the Geneva Conventions.Israel and Hamas are hardly alone among states and nonstate actors in using or implicitly condoning the use of aerially delivered explosives as a weapon of war in ways that cause disproportionate civilian harm. Russia’s BM-21 Grad is the most widely deployed multiple-rocket launch system in the world, capable of firing 40 rockets in 20 seconds over a wide area and designed to deliver fragmentation effects. The United States continues to reserve the right to use—and arm countries, like Saudi Arabia, that do use—cluster munitions, a form of weapon that releases bomblets over wide areas, causing numerous explosions in a way that cannot be aimed precisely at military targets. On the other side, even among armed groups whose goal is to engage security forces rather than civilians, nonstate actors often use mortars and improvised explosive devices, or IEDs, in ways and under weather conditions that render them more inaccurate.
But even explosive weapons that are designed to be as precise as possible and are deployed with attention to minimizing casualties often harm nearby civilians or destroy infrastructure needed for civilian health and survival. In Gaza, for example, hundreds of civilians were killed and over 1,000 injured by “precision” weapons Israel claimed were aimed solely at Hamas. Moreover, over 100,000 civilians were displaced, with massive damage to essential infrastructure including power-generating plants, water treatment facilities and hospitals. As the Costs of War Project at Brown University documents, when one accounts for the civilian casualties from preventable disease, hunger, violence, displacement and loss of livelihoods, the toll becomes much higher than that reported during the initial conflict.
The inherently indiscriminate effects of explosive violence in urban areas, which is generally used by both sides of a conflict, has drawn attention in recent years from humanitarian disarmament NGOs. According to the International Network on Explosive Weapons, a coalition of nearly 50 NGOs, the use of explosives in populated areas “causes broad, substantial and ongoing harm.” They base this observation on a decade of documentation of civilian war casualties in conflicts worldwide. This week, Action on Armed Violence launched a new report that found, among other things, that 90 percent of the civilian casualties of explosive violence documented by the group were caused by airstrikes.
The International Committee of the Red Cross, or ICRC, is also seized of the dangers to civilians of explosives used in populated areas. In a recent blog symposium on urban warfare, the ICRC echoed these concerns and committed to “stepping up its engagement” in this area—a sign that the issue is becoming a more urgent priority on the international agenda. With the U.N. Protection of Civilians discussions in New York coming to a close today, humanitarian advocates hope that diplomats will continue to discuss measures to address this matter, including a Political Declaration committing to avoid using explosives in urban spaces.
These conversations are not happening because of Gaza. They are the result of normative currents that have been percolating in global civil society for a long time. But ironically, the timing of the Gaza conflict—coming just before the U.N. discussions began—may have become an illustrative impetus raising the salience of this issue on the global scene.