Every time Israel bombs Gaza, defenders of Israel’s actions seek to justify civilian casualties. Accusations of Hamas using civilians as “human shields” and references to Israel’s commitment to do “what it can to protect civilian lives” proliferate. Behind these explanations lies the legal concept that there exists some acceptable level of collateral damage in war. International law does indeed allow for some collateral damage when so-called military necessity calls for it. But discussions of what constitutes “acceptable” collateral damage only obfuscate a basic truth: The concept of collateral damage only occasionally provides legal cover, not moral cover, for the killing of innocent people.
Under international law, collateral damage, which includes both civilian casualties and damage to civilian infrastructure, is justified in war if it can pass what’s known as the proportionality test, which means that the direct military advantage to be gained in an attack is greater than the collateral damage an attack would incur. Since weighing perceived “military advantage” against an “acceptable” level of loss of life amounts to weighing apples against oranges, there is no universally accepted legal mechanism to determine when exactly collateral damage is legally justified. Additional Protocol I to the Geneva Conventions puts explicit limits on the targeting of civilians in the case of international conflict, though neither the United States nor Israel has ratified the document.
In an attempt to limit unintended civilian casualties, the United States and Israel have heavily invested in high-tech weapons systems. Earlier this month, the Biden administration notified Congress that it intends to sell Israel $735 million worth of precision-guided weapons. But if the United States’ War on Terror is any guide, the widespread adoption of precision-guided weapons does not prevent the systemic targeting of innocent people.
While Israel should be held accountable for war crimes, the death of every Palestinian killed in a “legal” Israeli airstrike is no less tragic than the death of every Palestinian killed in an “illegal” Israeli airstrike.
Moreover, Israel’s actions over the past several days suggest that its military would still use precision weapons to incur collateral damage without gaining sufficient military advantage, contrary to even the most expansive standard interpretations of the limits of collateral damage. Similar to how Hamas illegally targets Israeli civilians, Israel targets Palestinian civilians without sufficient justification of military necessity. Israel has killed dozens of civilians in airstrikes on homes, including two residential buildings in Gaza City on May 16, despite a lack of clear evidence that they were being used for military purposes. Amnesty International has said that these attacks should be investigated as war crimes.
While Israel should be held accountable for war crimes, the death of every Palestinian killed in a “legal” Israeli airstrike is no less tragic than the death of every Palestinian killed in an “illegal” Israeli airstrike. A person’s inherent dignity is not dependent on a legal calculation weighing military advantage against collateral damage. Every death—Israeli and Palestinian—is a tragedy.
Tolerance for collateral damage as an unavoidable fact of war depersonalizes the terrible suffering that real people experience. This tolerance allows policy analysts to flippantly explain to the public that periodic Israeli military operations in Gaza are like “mowing the grass.” It allows American politicians to support arms deals giving the Israeli military even more lethal power. It allows the world to look away from devastation deemed unavoidable. Hidden from view behind the screen of collateral damage, death becomes an unfortunate byproduct of armed conflict, an abstract policy problem that offers no room to mourn.
The dehumanizing framework of collateral damage enables so much of the discussion of the current crisis — and Palestinian liberation more broadly — to remain in the realm of Israeli military strategy and outside the realm of basic human dignity. Neither a decisive military victory nor a negotiated ceasefire can achieve true peace. Instead, the only path to lasting peace is to stop the siege of Gaza. As long as Gaza remains an open-air prison, Gazans will always suffer the heartbreaking cost of collateral damage and will be deprived of the freedom and dignity they are so sorely owed.
David Elitzer is an incoming rabbinical student at Hebrew Union College-Jewish Institute of Religion. He was previously a Marshall Scholar at the University of Cambridge and University College London, where he researched cultural heritage destruction and related war crimes.
