You can hear Professor Wolfendale discuss proportionality and the ethics of civilian casualties with Waleed Aly and Scott Stephens this week on The Minefield.
The killing of seven aid workers from the humanitarian organisation World Central Kitchen (WCK) on 1 April 2024, by the Israeli Defence Forces (IDF) prompted international outrage, drawing strong criticism from President Joe Biden and other world leaders — many of whom, prior to this event, had expressed concern over civilian deaths in Gaza but continued to support Israel’s actions and provide weapons.
Israeli President Benjamin Netanyahu responded to this international outrage by describing the killings as “tragic” but “unintentional”, going on to state that the killing of noncombatants “happens in war” and that Israel “will do everything to prevent a recurrence”. Israel’s own investigation into the attack blamed the killings on “mistaken identification” and resulted in the dismissal of two officers.
Israel’s response to this attack and the international community’s swift condemnation stands in sharp contrast to the attitude Israel has thus far expressed toward the devastatingly high rates of civilian casualties resulting from the Gaza offensive since the atrocities Hamas committed on Israeli civilians on 7 October 2023. As I write this, 33,700 Palestinians have been killed and over 1.7 million (or 70 per cent of the population) have been displaced.
For example, President Netanyahu expressed no regret about an Israeli strike on 31 October 2023 that killed 106 civilians (including 54 children). Similarly, neither he nor other Israeli military or political leaders have expressed remorse about the destruction of homes, schools, and hospitals that has occurred over the last six months. Instead, Israel has insisted that their campaign in Gaza is justified by the imperative of destroying Hamas.
This discrepancy between Israel’s response to the killing of the seven WCK workers and its ongoing and devastating attacks on Palestinian civilians suggests that Israel regards Palestinian deaths (and the destruction of Palestinian homes) as morally less important than the deaths of the WCK workers, six of whom were foreign citizens. The language used by President Netanyahu in his response also reflects two common narratives about civilian deaths in war that have arguably contributed to the normalisation of high rates of Palestinian civilian casualties. These narratives are that such casualties are unintentional (“mistakes”) and that the killing of noncombatants just “happens in war”.
The normalisation of civilian deaths in war
Civilian deaths are inevitable in any conflict. In international humanitarian law, civilian deaths caused by attacks on military targets are legal if those deaths are proportionate to the military advantage gained from the attack and if military forces took feasible steps to minimise foreseeable harm to non-combatants (even at some increased risk to combatants). In practice, however, the law is lenient on military forces that cause disproportionate civilian harm.
In the Rome Statute of the International Criminal Court, collateral civilian deaths are war crimes only if the perpetrator intentionally launched an attack knowing that it “will cause incidental loss of life or injury to civilians or damage to civilian objects … which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated”. This means that military attacks that cause excessive and disproportionate civilian deaths are not war crimes under international law even if caused by recklessness or negligence.
The assumption that civilian deaths are the inevitable “tragic outcome of war,” along with the leniency in international law toward disproportionate civilian casualties, creates little incentive for military forces to question, let alone investigate, whether any particular incident of collateral civilian deaths could have been avoided. As we have seen in the war in Gaza and in other conflicts — like the US drone warfare campaign in Pakistan and elsewhere — such an attitude can lead to a tolerance of disproportionate and excessive civilian deaths.
Interrogating the claim of “honest mistakes”
Combined with the assumption that civilian deaths are inevitable in any war, describing accidental or disproportionate civilian deaths as “unintentional” and the result of individual mistakes tends to divert attention away from intentional institutional policies and procedures that shape choices of targets, methods of target selection, and methods of engagement with targets. This means that the IDF’s targeting policies and practices demonstrate the degree of care they are willing to take to prevent civilian harm, and hence tell us a great deal about their moral evaluation of the civilians who are at risk from IDF attacks.
Consider a recent report which revealed that the IDF uses an AI targeting system known as “Lavender” to select targets for attack. According to this report, this system produced “kill lists” of potential Hamas operatives. These lists were often approved with little oversight, despite a known 10 per cent error rate. One IDF source claimed:
normally, they would personally devote only about “20 seconds” to each target before authorizing a bombing — just to make sure the Lavender-marked target is male.
Once a target was approved, the IDF would often choose to attack the target when they were in their private home at nights, often with their families, effectively guaranteeing a high rate of civilian casualties. The reason for this choice was, according to the sources quoted in the report, that “it was easier to locate the individuals in their private houses”.
The choice to develop and use this AI targeting system, the choice to rely on that system’s outputs (despite a known high error rate), and the choice to attack targets in their homes at night are all intentional choices. This means that it is not only false but morally misleading to describe the resulting civilian deaths as “unintentional” or as what “happens in war”. Such deaths are the foreseeable and predictable result of these policies and procedures. The choice to use these procedures points not only to a blameworthy indifference to Palestinian lives, but to a willingness put innocent people in harm’s way.
That these procedures suggest indifference to Palestinian lives is evident from the fact that it is almost certain that the IDF would not adopt such tactics if it were Israeli civilians who were at risk from their military actions.
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It is perhaps ironic that the killings that have prompted the greatest outrage from the international community are not the thousands of Palestinian deaths resulting from the tactics I’ve described, but the deaths of the seven WCK workers who — at least according to Israel’s investigation — were killed due to unintentional error. If Israel’s claim is true (and some observers are sceptical), then these deaths are an example of the tragic but unintentional civilian deaths that occur in any war. Such deaths warrant remorse and regret, but to publicly declare oneself “outraged and heartbroken” — as President Biden did — by these deaths and not by the killings of innocent Palestinian civilians, tacitly devalues Palestinian lives.
To respect the moral value of all civilian lives, as law and morality require, demands not only that military forces treat all civilians with the same degree of moral respect and care, no matter which “side” they are on, but also that all civilian deaths in war are mourned.
Jessica Wolfendale is Professor of Philosophy at Case Western Reserve University, and the co-author (with Matthew Talbert) of War Crimes: Causes, Excuses, and Blame.
