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 can’t just drop 10-tonne bombs on it."

Gaza medic rushes injured child into hospital
Questions of proportionality rest on intention as much as the numbers of people killed and injured

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 Abrahams.

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.

B’Tselem 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 losses?

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 casualties.

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 d’etre 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 B’Tselem'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."

Gaza conflict: Who is a civilian?

Gaza conflict: Who is a civilian?

Hamas-run Interior Ministry
The Interior Ministry was hit in the first strike targeting a government building

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 law’s rules on keeping civilian casualties to a minimum are based on the distinction between "combatants" and "non-combatants".


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
Benjamin Rutland
IDF spokesman

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 hostilities".

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 areas.

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 Israel’s 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.


To claim that all of those offices are legitimate targets, just because they are affiliated with Hamas, is legally flawed and extremely problematic
B’Tselem director Jessica Montell

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 B’Tselem 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 activities”.

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 B’Tselem director Jessica Montell.

Q&A: Gaza conflict

Three weeks after it began its offensive in the Gaza Strip, Israel announced a unilateral ceasefire, followed hours later by Hamas announcing a one-week ceasefire. The BBC News website looks at the background to the conflict and what the ceasefire means.

Why has Israel declared a ceasefire and what are its terms?

The ceasefire was unilaterally declared by Israel, 22 days after its offensive began. Israeli Prime Minister Ehud Olmert told the nation Hamas had been "badly beaten" and that Israel's goals "have been more than fully achieved". The goals had been to stop rocket fire into southern Israel and, in the words of Foreign Minister Tzipi Livni, "to change realities on the ground".

Israel has been under intense diplomatic pressure to end its action and a day before the ceasefire received assurances from the United States that it would take concrete steps to halt the flow of arms and explosives into the Gaza Strip.

Israel said its soldiers would remain inside Gaza for the time being and reserve the right to strike back if militants continued to launch attacks.

How did Hamas react?

Hamas rejected Israel's ceasefire in advance, saying it would fight on. Hamas spokesman Fawzi Barhoum said Israel must withdraw its troops and end its 19-month blockade of the strip.

Hours after the ceasefire began, at 0200 (0000 GMT) on 18 January, Hamas militants shot at Israeli troops in northern Gaza, drawing return fire, and fired rockets into southern Israel, triggering an Israeli air strike in response, the Israeli military said.

But then the group announced its own immediate one-week ceasefire, demanding that Israel withdraw its forces from the Gaza Strip.

Hamas' deputy chief in Syria, Moussa Abou Marzouk, also reiterated long-standing demands for all the crossings to be re-opened for the entry of humanitarian aid, food and other necessities.

Why did the Israelis launch their 27 December offensive?

The Israelis say they attacked in order to stop the firing of rockets into Israel. Israel wants all firing to stop and measures to be taken to prevent Hamas from re-arming. It is trying to destroy or reduce Hamas as a fighting force and to capture its stocks of weapons to help achieve this.

The Israeli attack began on 27 December 2008, not long after Hamas had announced that it would not renew a ceasefire that had started in June 2008.

Why did Hamas not renew the ceasefire?

The six-month ceasefire, brokered by the Egyptians, was often broken in practice. Its terms were never written, but were widely understood to include Hamas ending all rocket fire from Gaza and weapons smuggling from Egypt, while Israel stopped military activity against militants in the strip and carried out a phased lifting of its blockade of Gaza. Negotiations on the captured Israeli soldier Gilad Shalit were also supposed to begin.

Rocket fire was greatly reduced, though not completely stopped, for the first few months of the truce. The volume of goods allowed into Gaza also increased for some of the time, but remained well below pre-embargo levels.

Events began to come to a climax after the Israelis carried out their first incursion into southern Gaza during the truce, killing six militants, on 4 November 2008. Israel said its troops entered to destroy a tunnel which could be used to abduct its soldiers. This led to the further firing of Hamas missiles into Israel and in turn to a much tighter Israel blockade.

Hamas said Israel had broken the truce by failing to lift the blockade; Israel said Hamas had used the period to smuggle more rockets into Gaza, was planting explosive devices on the border fence and had not stopped the rocket fire completely.

Hamas demanded that the blockade be ended or it would not renew the ceasefire.

Why does Hamas fire missiles into Israel?

Hamas is an acronym for the Islamic Resistance Movement. It regards the whole of historic Palestine as Islamic land and therefore views the state of Israel as an occupier, though it has offered a 10-year "truce" if Israel withdraws to the lines held before the war of 1967.

It therefore generally justifies any actions against Israel, which has included suicide bombings and rocket attacks, as legitimate resistance.

Specifically in Gaza, it argued that Israel's blockade justified a counter-attack by any means possible.

What casualties have the Hamas rockets caused?

Since 2001, when the rockets were first fired, more than 8,600 have hit southern Israel, nearly 6,000 of them since Israel withdrew from Gaza in August 2005. The rockets have killed 28 people and injured hundreds more. In the Israeli town of Sderot near Gaza, 90% of residents have had a missile exploding in their street or an adjacent one.

The range of the missiles is increasing. The Qassam rocket (named after a Palestinian leader in the 1930s) has a range of about 10km (6 miles) but more advanced missiles, including versions of the old Soviet Grad or Katyusha, possibly smuggled in, have recently hit the Israeli city of Beersheba, 40km (25 miles) from Gaza and brought 800,000 Israelis into range.

Palestinian medical sources say that more than 1,000 people have been killed in Gaza during Israel's military that started on 27 December 2008.

What have been the effects of the Israeli blockade?

They have been severe. Little but humanitarian basics have been allowed into Gaza since Hamas seized power in 2007. Before the Israeli operation began, health, water, sewage and power infrastructure were seriously ailing because of a lack of spare parts. The blockade includes limits on fuel, which have on several occasions forced the power plant that supplies Gaza City to shut down.

A total ban on exports has left the already fragile economy devastated. Unemployment has soared. The United Nations Relief and Works agency (Unrwa) provides basic food aid to about 750,000 people in Gaza, but in the weeks preceding the Israeli operation these were suspended because the UN ran out of food because Israel closed the crossings into Gaza citing security reasons.

Goods ranging from food to missiles have, however, been brought in through smuggling tunnels from Egypt.

What is the history of this small strip of land?

Gaza was part of Palestine when it was administered by Britain in a mandate granted by the League of Nations after World War I. In fighting after Israel declared its independence in large areas of Palestine in 1948, the Egyptians captured the Gaza Strip. Palestinian refugees from the coastal cities to the north took refuge there. They or their descendants still live in UN camps in Gaza. Israel captured it in the war of 1967 and eventually moved about 8,000 settlers there, but all Israeli settlers and soldiers left in 2005.

Gaza has a population of 1.4 million of whom about some three-quarters are registered with the United Nations as refugees. It is 40km (25 miles) long and between six and 12km (4 and 8 miles) wide.

How did Hamas come to control Gaza?

After the Israeli evacuation in August 2005, the Palestinian Authority took control of Gaza. The PA was made up mainly of secular-minded Palestinian nationalists from the Fatah party, which, unlike Hamas, thinks that a final agreement with Israel for a two-state solution - Israel and Palestine - can be made.

In January 2006, Hamas won elections to the Palestinian legislature and formed a government in Gaza and the Palestinian territories on the West Bank. A unity government between Hamas and Fatah was then formed in March 2007 but the Palestinian Authority President Mahmoud Abbas, a Fatah leader directly elected in an earlier vote, subsequently dissolved the government.

In June 2007, Hamas, claiming that Fatah forces were trying to launch a coup, took control of Gaza by force, but not the West Bank territories.

Hamas was boycotted by the international community, which demands that it renounce violence and recognise Israel.

power sharing

Power sharing is anonymously diversified concept that entails granting territorial autonomy, adopting a proper representation of groups in administrative appointment, implementing a policy of consensus and decision making by the executive, establishing a proportional electoral system, developing of non-ethic federal structure and encouraging cross-ethic coalitions. given the above tentacles of power sharing in reference to the power sharing that was drafted and adopted in Kenya after post-election violence in bid to reconcile the two previously rivalry camps and in pursuit for social cohesion, it is undeniably that there was enormous stretch of ambiguities in definition of tenets of power sharing considering the already existing wind of re-negations .Kenya’s structure of power sharing is depicted to have assimilated a policy of consensus and decision making by the executive and to a small extent unconscious negligible drops of other elements. The idea of signing the national cord without understanding its consequences has resulted to the current political gridlock manifested in the manner in which the coalition is attempting to feign, fake and forge a spirit of national trust which is outwardly demonstrated by heated arguments and personal attacks, it seems power sharing is interim way of dealing with crisis through the use of diplomatic techniques, power sharing creates two centres of power which are empowered by rubber stamp ruling out the idea that one party may overrun the other creating a state of quo which is very unpleasant for the survival of the citizens, good governance and existence of democracy. Just like the authoritarian regimes power sharing tends to justify its existence by duping the common man existence through gross malpractice such as corruption and its related vices. Notwithstanding reassertion of sociological behaviours and attitudes in the society of amplifying some elites in expense of the mass, power sharing in Kenya can be seen as dead but not buried given the view that even in some of the most politically disciplined countries such as Switzerland power sharing have remained passive and a breathing space for the leaders contemplating to blow their trumpet before they redefine and restructure the very turbulent power sharing which swayed them into power. If examined critically power sharing is a method of resolving and managing conflict to restore sanity and stability.dominique mundiah