An expert on the laws of armed conflict evaluates the principles of distinction and proportionality, self-defense, and human shields in relation to the Israel–Hamas war.
“The principles of the law of armed conflict are very ancient. They go back at least to medieval times, if not earlier.”
So said Claire Finkelstein at the start of a late-October Perry World House virtual conversation on the Israel–Hamas war. Finkelstein—the Algernon Biddle Professor of Law and Professor of Philosophy at Penn Carey Law and the founder and faculty director of the University’s Center for Ethics and the Rule of Law—spoke primarily about the principles of distinction and proportionality, as informed by generally accepted principles of international humanitarian law.
Under the principle of distinction, civilians are never to be targeted in war—but that “does not mean that civilians will not sometimes die in war … as the unintended side effect of the pursuit of a legitimate military target,” she noted. Under the principle of proportionality, the collateral damage of civilian death must be in proportion to the legitimate military aims. “So, to take out a minor military target, or make a minor military advance, you cannot inflict massive civilian losses,” she said.
When Hamas killed roughly 1,200 Israeli civilians and took more than 200 hostages on October 7, it was a clear and barbaric war crime and, regardless of the untenable situation in Gaza, Finkelstein said she has been “profoundly disturbed to read the number of people writing about those attacks as legitimate resistance.”
“No intentional attacks on civilians in war can ever constitute a legitimate military action,” she declared. “We must be able to distinguish between collateral damage and intentional targeting of civilians.”
She also submitted that Israel’s ensuing military response is justified under Article 51 of the Charter of the United Nations, which authorizes the “inherent right of individual or collective self-defense if an armed attack occurs” against a UN member. Sometimes, that might appear murky since “punishment is never a legitimate aim in armed conflict” and “in general self-defense is executed after an attack occurs and that may make it look like punishment,” Finkelstein said, adding that if a country “knew for certain that the enemy was never going to attack again, that the enemy was neutralized, there would be no justification” for striking back militarily. But “Israel has no reason to believe that Hamas has been neutralized and the danger that Hamas manifested on October 7 won’t reoccur,” she continued, “and so I think that it is fully within Israel’s rights of self-defense to engage in military action to protect itself from Hamas.”
Yet Israel’s ground invasion of Gaza has presented a challenging ethical and legal landscape, since it has resulted in significant civilian casualties given how densely populated the region is and that Hamas is known to use Palestinian civilians as “human shields.” Emphasizing that Israel’s tactics need to remain within the boundaries set by international law, Finkelstein spoke about the moral quandaries presented by combatants hiding behind their civilian population in an armed conflict. Here are those remarks. (The entire conversation, moderated by Perry World House interim director Michael Weisberg, the University’s Bess W. Heyman President’s Distinguished Professor and Chair of Philosophy, can be viewed on Perry World House’s YouTube channel.) —DZ
“Israel does not lose its right of self-defense when the enemy is using human shields—which we know that Hamas does, Hezbollah does. Or under the circumstance in which they’re sending rockets from civilian infrastructure—from inside a school or inside a hospital—Israel does not lose its right to self-defense because Hamas chooses to send rockets from close proximity to its own civilians. That’s a very important point and it follows directly from general principles of self-defense that you know from everyday life; it’s not specific to war.
If you are attacked on the street and the only way you can defend yourself is to pick up a bottle and throw it at your assailant and the assailant is holding a child in their arms, you are entitled to throw that bottle to defend your life. It is extremely unfortunate that the assailant is holding a child, but that is on the assailant.
When the police respond to an attack, if the police engage in justifiable defensive lethal force in order to defend someone and they accidentally hit a bystander, the police are not guilty of murder under those circumstances. This is the way that collateral damage works, and this is the way that self-defense works.
So here’s the hard question: in circumstances in which one side is using human shields, does it matter how many civilians are stacked up as part of that shield? In other words, do proportionality calculations still take place when you are acting in self-defense? Are you obliged to assess how many civilians you’re going to harm as you’re fighting for your life? And the answer is yes—you are still obliged. But nobody knows exactly where the tipping point is. Is the calculation the same as ordinary collateral damage claims when there is not a human shield element? And I think the answer is probably no—because the cause of that civilian being in danger is not you, the one who is self-defending; it is the other side, who has put you in danger.
So, boiling that down to simpler terms: Hamas puts the civilians that it uses as human shields in danger and therefore, while you still are responsible for thinking about the level of civilian damage that you cause in exercising your right of self-defense, Israel doesn’t lose its right to self-defense.”
The question of proportionality is inherently fact-dependent. The issue is discussed here:
https://www.nytimes.com/…/israel-gaza-proportionality…
Moreover, proportionality must be addressed together with the principle of discrimination. From the article:
“The other key legal principle is “discrimination.” Has a military sought to be discriminating, hitting only military targets and combatants while trying to avoid harming civilians?”
One way to draw the line is this: suppose the Hamas targets had blended into the Jewish population of Israel, and there was no way to identify them other than to arrest and interview them one by one. Is it likely that Israel would engage, in Israel, in the kind of bombing campaign that it has employed in Gaza? This may seem like a far-fetched scenario, but consider this: no one contends that the entire population of Gaza, including children, consists of murderers. Are innocent residents of Gaza entitled to less careful treatment than innocent residents of Israel?
It will be argued that Israel is entitled to defend itself and that all wars entail the killing of a number of civilians. However, what is the threat to Israel at this point, and what might be a way to counter that threat while minimizing harm to innocent people? I am no military expert, but it appears to me that Israel is not in danger of being invaded and occupied by Hamas. Israel apparently has the means to prevent a recurrence of the October 7 breakout. That leaves the Hamas rockets, which seem to have claimed few lives. Presumably Israel could occupy Gaza and implement a building-to-building search that would turn up rockets and the means to build and launch them- all with a minimum of civilian casualties. Moreover, a responsibly implemented occupation would perhaps not engender as much generational hatred as the current strategy- indeed, the occupation of the Axis nations after World War II seems to have generated abundant good will.
In summary, it seems to me that the author has provided a greatly simplified view of the issues presented by the current situation in Gaza. The Gazette could make a great contribution to the ongoing dialogue by presenting a more comprehensive and nuanced discussion of the issues.