Intentionally harming civilians in war is a legal and moral crime (Anadolu Agency)
No state or entity can explicitly recognize in wars the permissibility of killing civilians or non-combatants, including children and women, for various reasons, the first of which is legal, for fear of accountability, especially in democratic countries where the law has authority. Therefore, politicians and military personnel need to provide moral and legal justifications for what is happening on the ground, especially in official statements, and in answering journalists' embarrassing questions with agreed facts and moral principles.
In the context of the Israeli war on Gaza, which has left thousands of civilian martyrs, especially children and women, U.S. officials and others have frequently used moral justifications to legitimize their position on such a large number of civilian casualties.
Intentionally harming civilians in war is a legal and moral crime, and its absence exempts politicians and military personnel from legal accountability for war crimes.
Among the most prominent of these justifications - in expression - collateral damage and human shields, that is, the claim that Hamas covers up civilians and uses them as human shields, and I may devote a later article to the idea of "human shields", but I would like to stand here carefully at the saying: "collateral damage."
The term "collateral damage" – in the military context – was given to friendly fire or the unintentional killing of civilians, (or non-combatants), and the destruction of their property and facilities, and this expression was invented after the development of precision-guided weapons in the seventies of the last century.
Since intentionally injuring civilians in war is forbidden in war, politicians and military usually resort to using different expressions to negate the idea of intentionality, such as saying that wars necessarily involve victims because this is part of their nature, but these victims are merely "collateral damage" in war, or as military forces claim that they are making great efforts to "minimize" collateral damage.
U.S. officials have recently used these tactics in the Gaza war, including urging Israel to "minimize civilian casualties." The term "collateral damage" has been used many times in wars, including the Vietnam War in the beginning, the Gulf War in 1991, when it was used by coalition forces, the Kosovo War, where NATO forces used it, and now in the war on Gaza to justify the massacres that have been taking place in Gaza for two months, and are still at the time of this writing.
The term "collateral damage" is, in fact, a "technical" term that was formulated, in my opinion, to achieve three objectives:
Deliberately harming civilians in war is a legal and moral crime, and its absence exempts politicians and military personnel from legal accountability for war crimes, because war itself is an uncriminal act, and it involves - by its nature - harm and casualties, and therefore dealing with its course and effects becomes a matter of "technical" nature, centered on - only - the denial of intentionality and mitigation as much as possible of the so-called "side effects" that include lives and property.
In this context, we understand the repeated statements issued by American officials, sometimes praising the Israeli army as one of the most professional armies in the world, and sometimes by saying - with excessive confidence -: Hamas intends to kill civilians deliberately, while Israel does not mean that, but they are killed accidentally, and that the responsible for killing them is Hamas as well, which means claiming the moral superiority of the State of Israel, and attaching the accusation of terrorism to Hamas and holding it responsible for killing civilians who were killed by American and Israeli weapons!
The moral claim was explicitly expressed by Israeli Prime Minister Benjamin Netanyahu, when he claimed that the Israeli army is the most moral army in the world, at a time when this army is still committing massacres every day in Gaza, until the number of martyrs reached more than 17,<> martyrs, as well as thousands of wounded, and the mass destruction left by the continuous Israeli bombardment.
The technical nature of the "collateral damage" argument is twofold:
- First, the killing of civilians during a so-called "armed conflict" is not, in itself, a war crime because international humanitarian law allows warring parties to carry out "proportionate attacks" against military objectives, even if they knew in advance that they would result in civilian casualties.
- Second, this expression dehumanizes the victims and makes human beings mere objects or tools in order to achieve military and political goals. Collateral damage is – by definition – what affects individuals, property or facilities, and it is a secondary issue in the decision of war and military action, and for this reason US officials are content to claim sadness for the casualties in Gaza, while continuing to support the war and send weapons that cause the death of these civilians, and even hold Hamas responsible for this!
But the use of the term "collateral damage" in the context of the war on Gaza is in fact misleading for several reasons:
- First, we are facing an occupying power and an occupied people, and this would completely change the course of the discussion.
- Second, we are not facing a war in the conventional sense, i.e., a war between states in which warring parties and military installations are targeted, even if they cause civilian damage that may be described as "collateral damage."
There are no warring parties in Gaza, but a unilateral war by a state against a people under the pretext of eliminating Hamas, and all facilities in Gaza are civilian facilities, and this is what made this war - for politicians and military - a very complex issue, because it does not meet the traditional standards that countries are familiar with in wars, and this same thing is the reason for the turmoil of politicians and military in facing the effects of war, and the enormous human cost of it, which they do not continue to maneuver in justifying and evading bearing Its ethical and legal implications.
- Third, war, in the terminological sense, is subject to the controls of international humanitarian law to avoid war crimes, and these controls are closely related to the term "collateral damage" here. According to international humanitarian law, civilian casualties are not a war crime, but must be met by three things: imposed by military necessity, difficult to distinguish between civilian and military, and proportionate military objective and "collateral damage."
These are three important principles that govern the legal use of force in armed conflict (it should be recalled that what is happening in Gaza is not an armed conflict). Therefore, causing excessive or serious collateral damage compared to the expected and direct military objective inevitably leads to war crimes, especially if these damage is widespread and long-term, in lives, property, and facilities, and this brings us back – once again – to the fact that we are – in Gaza – facing an occupying power, not a war subject to the legislation of international law.
Fourth: The denial of intentionality is a central issue in the expression "collateral damage" in both legal and moral terms, but intentionality is actually achieved in the ongoing war on Gaza, due to the nature of the weapons used, whose manufacturers, suppliers and users know their impact accurately in terms of their extent and destructive potential, and due to the nature of the land in which the war is fought, Gaza has the highest population density in the world, as well as the targeting of residential and health facilities, which are definitely known to cause victims without achieving military objectives commensurate with those damages.
These three considerations make Israeli military action in Gaza intentional in jurisprudential, moral, and legal terms. Since intentionality is hidden and unmeasurable, intentionality is measured based on data related to: (1) the nature of the weapons, (2) the nature of the ground and targets, and (3) the actual results, all three of which are sufficient to make Israeli military action in Gaza at least intentional. If we assume – in good faith – that the IDF does not actually deliberately kill civilians.
It is useful here that Muslim jurists have relegated the machine used in killing as the intention of the killer, as the machine that kills often takes the place of the intention of the killer, making his act premeditated murder, and the machine that does not kill often, also acts as the intention, making the act unintentional killing, even if the act leads to murder in fact. That is, when it was not possible to control the intention to distinguish between intentional and unintentional murder by individuals, they set up the instrument used in the attack in place of the intention of the perpetrator.
This law is strictly in force in the ongoing war on Gaza for the three previous considerations: weapons, land and targets, and the actual effects, namely the killing of about twenty thousand martyrs, most of them children and women.
This debate about politicians and military seeking moral and legal justifications for war crimes makes it clear that the crux of the problem is not misunderstanding or lack of knowledge; they are verbal techniques to express – with diplomatic elegance – actual politics that do not dare to express themselves in honest and direct terms, while fearing potential legal accountability.
In this context, it seems understandable that some US officials claimed that there is no "evidence" that Israel "deliberately" killed civilians; there is no room here to delve into the type of evidence they are looking for, and ways to prove it, and compare their investigation of evidence here with their neglect of evidence in many judgments such as the allegation of Hamas beheadings in the October 7 event, sexual violence against prisoners, questioning civilian casualty figures, and others.
Denial, skepticism, claiming that there is no evidence or failure to know the details of the incident are all diplomatic techniques to evade the answer, and "collateral damage" is a technical expression of repudiation of responsibility for the killing.