Israel, Hamas accused of breaking the rules of war

JERUSALEM — Your unit, on the edges of the northern Gaza town of Jabaliya, has taken mortar fire from the refugee camp nearby. You prepare to return fire, and perhaps you notice — or perhaps you don't, even though it's on your map — there is a U.N. school just there, full of displaced Gazans.

You know international law allows you to protect your soldiers and return fire but also demands that you ensure there is no excessive harm to civilians. Do you remember all that in the chaos?

You pick GPS-guided mortars, which are supposed to be accurate and of a specific explosive force, and fire back. In the end, you kill some Hamas fighters but also, the United Nations says, more than 40 civilians, some of them children.

Have you committed a war crime?

Whatever the military and political results of Israel's war against Hamas in Gaza, Israel is again facing serious accusations and anguished questioning over the legality of its military conduct. As in Israel's 2006 war against Hezbollah in Lebanon, the popular perception abroad of how Israel fights, and hence of Israelis, may prove more lasting than any strategic gains or losses.

The televised images of devastation in the Gaza Strip and the large asymmetry in deaths, especially of civilians, have created an uproar in the Arab world and the West.

Western foreign ministers, U.N. officials and human-rights groups, Israeli and foreign, have expressed shock and disgust; some have called for investigations into possible war crimes. Such groups also say Hamas is violating the rules of war.

More than 1,100 Palestinians have died in the Gaza fighting, according to the Hamas-run Health Ministry, which estimates 40 percent were women and children younger than 18. Israel estimates a quarter of the dead are civilians. Israel, which has suffered 13 dead, three of them civilians, is being accused of a disproportionate use of force.

Under international law, proportionality is defined as a question of judgment, not of numbers: Is the potential risk to civilians excessive in relationship to the anticipated military advantage? That puts the weight on military advantage, since civilian risk is a given and must only not be "excessive."

Even if the target is legitimate, was the right weapon used to try to minimize civilian damage? The key is the expected damage the commander anticipated from the use of a certain weapon, not what happened when it was fired.

The other key legal principle is discrimination: Has a military struggled hard enough to hit only military targets and combatants?

While Israel is the focus of most criticism, legal experts agree Hamas, an Islamic group classified by the United States and Europe as terrorist, violates international law.

Shooting rockets out of Gaza aimed at Israeli cities and civilians is an obvious violation of the principle of discrimination and fits the classic definition of terrorism. Hamas fighters also are putting civilians at undue risk by storing weapons among them, including in mosques, schools and supposedly hospitals, making them potential military targets.

But Hamas' violations tend to be treated as a given and criticized as an afterthought, Israeli spokesmen and officials say. "The rules of engagement are very clear," said Mark Regev, the government spokesman. "Not to target civilians, not to target U.N. people, not to target medical staff. All this is very clear in Israeli military doctrine."

A senior U.N. lawyer authorized to speak only if she remained anonymous, said the military was not doing enough: "A proper weighing of proportionality on the battlefield is just not happening as it should."