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Gaza conflict: Who is a civilian? 
 By Heather Sharp 
BBC News, Jerusalem  

The bloodied children are clearly civilians; men killed as they launch
rockets are undisputedly not. But what about the 40 or so young Hamas
police recruits on parade who died in the first wave of Israel's
bombing campaign in Gaza?  
And weapons caches are
clearly military sites  but what about the interior ministry, hit in a
strike that killed two medical workers; or the money changer's office,
destroyed last week injuring a boy living on the floor above? 
As the death toll mounts in Gaza, the thorny question
is arising of who and what can be considered a legitimate military
target in a territory effectively governed by a group that many in the
international community consider a terrorist organisation. 
This is also the group that won the Palestinian
legislative elections in January 2006 and a year later consolidated its
control by force. 
So while it was behind a campaign of suicide attacks in
Israel and fires rockets indiscriminately over the border, it is also
in charge of schools, hospitals, sewage works and power plants in Gaza. 
International law  
Israel says it is operating totally within humanitarian law, but human rights 
groups fear it is stretching the boundaries. 
And as ground forces clash in the heavily-populated Gaza Strip, the questions 
will become more pressing. 
International laws rules on keeping civilian casualties to a minimum
are based on the distinction between "combatants" and "non-combatants". 
As Israel launched the first air strikes, outgoing Prime Minister Ehud
Olmert said: "You - the citizens of Gaza - are not our enemies. Hamas,
Jihad and the other terrorist organisations are your enemies, as they
are our enemies." 
But when an Israeli military spokesman also says things
like "anything affiliated with Hamas is a legitimate target," things
get complicated. 
The International Committee of the Red Cross - guardian
of the Geneva Conventions on which international humanitarian law is
based - defines a combatant as a person "directly engaged in
But Israeli Defence Forces spokesman Captain Benjamin
Rutland told the BBC: "Our definition is that anyone who is involved
with terrorism within Hamas is a valid target. This ranges from the
strictly military institutions and includes the political institutions
that provide the logistical funding and human resources for the
terrorist arm." 
Philippe Sands, Professor of International Law at
University College London, says he is not aware of any Western
democracy having taken so broad a definition. 
"Once you extend the definition of combatant in the way
that IDF is apparently doing, you begin to associate individuals who
are only indirectly or peripherally involved… it becomes an open-ended
definition, which undermines the very object and purpose of the rules
that are intended to be applied." 
Indeed, Hamas itself has been quoted as saying the fact
that most Israelis serve in the military justifies attacks on civilian
Hamas policemen  
The first wave of bombings, which targeted police stations across Gaza,
is a key case in question - particularly the strike that killed at
least 40 trainees on parade. 
Analysts say Hamas policemen are responsible for
quashing dissent and rooting out spies, as well as tackling crime and
directing traffic. 
But the Israeli human rights group B'Tselem, which has
raised the issue in a letter to Israels attorney general, says it
appears those killed were being trained in first aid, human rights and
maintaining public order. 
The IDF says it has intelligence that members of the
police force often "moonlight" with rocket squads, but has given no
details about the specific sites or individuals targeted. 
However, campaign group Human Rights Watch (HRW) argues that even if
police members do double as Hamas fighters, they can only be legally
attacked when actually participating in military activities. 
Both BTselem and HRW are also concerned about the
targeting of ostensibly civilian sites such as a university, mosques
and government buildings. 
Protocol 1 of the Geneva Conventions - quoted by
Israel, although not signed by it - says that for a site to be a
legitimate military target it must "make an effective contribution to
military action" and its destruction or neutralisation must also offer
"a definite military advantage". 
Israel says it has bombed mosques because they are used
to store weapons, releasing video of the air strikes which it says
shows secondary explosions as its proof. 
But it gives no evidence for its claims that
laboratories at the Islamic University, which it bombed heavily, were
used for weapons research, or for its claims that at least three money
changers targeted were involved in the transfer of funds for terrorist
This is because Israel rarely releases intelligence
material for fear of endangering the lives of its sources, Capt.
Rutland says. 
However, on its targeting of the education, interior
and foreign ministries and the parliament building, Israel simply
argues they are part of the Hamas infrastructure  and there is no
difference between its political and military wings. 
"To claim that all of those offices are legitimate
targets, just because they are affiliated with Hamas, is legally flawed
and extremely problematic," says BTselem director Jessica Montell. 
Questions of proportionality  
Other incidents have raised concerns for these reasons, together with a second 
legal concept - proportionality. 
This demands that the military gain of a particular operation be
proportional to the likely or actual civilian losses incurred in
carrying it out. 
As Fred Abrahams, a senior researcher at Human Rights
Watch puts it: "Even if you have a legitimate target you cant just
drop 10-tonne bombs on it." 
Five sisters in the Balousha family were killed as they slept together
as, apparently, a nearby Hamas-linked mosque was bombed in Jabaliya
refugee camp on the second day of Operation Cast Lead. 
HRW is calling for an investigation. "Was the mosque a
legitimate target? We have our doubts… Did they use weaponry that would
limit damage to civilians? We have our serious doubts," says Mr
In this case, Capt. Rutland said the IDF had no record
of a target in that specific area at that time, and gave no further
explanation for the girls deaths. 
A further case is the bombing of a truck that Israel initially said was loaded 
with missiles. 
BTselem and the truck's owner  who said his son died along with seven
other people  later said it was carrying oxygen canisters for welding.
Israel maintains the warehouse the canisters were loaded from had been
known to house weapons in the past. 
How good was Israel's intelligence? How likely was it,
for example, that at the moment of decision, the information might turn
out to be wrong? And did the potential gains outweigh the possible
Professor Sands says proportionality is "very, very difficult." 
"What's proportionate in the eyes of one person may be disproportionate in the 
eyes of another," he says. 
The difference in numbers in the Gaza war is stark - Palestinians say
more than 500 Gazans have died in eight days, compared with 18 Israelis
from rocket fire since 2001. 
But experts say issues ranging from the parties'
intentions, the reasons for going to war, the actions taken to protect
- or indeed expose - civilians, and the conditions on the ground, all
feed into a much more complicated legal equation. 
Israel says lawyers are constantly consulted in its
operations. It says it takes all possible steps to minimise civilian
Guided weapons are used; telephone warnings are often
given before buildings are bombed; the IDF says missions have been
aborted because civilians were seen at the target. 
And it says its enemy is far from a standard army:
"We're talking about an entire government whose entire raison detre is
the defeat of Israel … and all of whose energies are directed at
attacking Israeli civilians," says Capt. Rutland. 
Witnesses and analysts confirm that Hamas fires rockets
from within populated civilian areas, and all sides agree that the
movement flagrantly violates international law by targeting civilians
with its rockets. 
But while BTselem's Ms Montell describes the rocket
fire as a "blatant war crime", she adds: "I certainly would not expect
my government to act according to the standard Hamas has set for itself
- we demand a higher standard." 
Story from BBC NEWS:

Published: 2009/01/05 12:29:15 GMT


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