REPRISE: International Humanitarian Law, Proportionality, and the Killing of Children
A REPRISE article. Republication of one of our best articles. Of continuing relevance.
Originally published in Trenchant Observations on December 31, 2023
International Humanitarian Law, Proportionality, and the Killing of Children
Written on November 29, 2023
A child is one of the miracles of Creation. Maybe the greatest miracle of Creation.
Yesterday I spent a couple of hours with a five-year-old girl and her family. She is from the family of a very dear friend.
My five-year-old friend is the daughter of loving parents who have done a very good job of raising her. She is taking ballet lessons, playing soccer, and evidencing unusual skill and interest as an artist.
She is full of curiosity and potential. It is not an exaggeration to say that the future of the human race depends on her and all the other children in the world.
Spending time with my five-year-old friend set me thinking. Who could kill such a child, or other children? The answer came back to me with utter clarity and with rage.
Only a monster could kill a five-year-old child, of whatever ethnicity or nationality.
Only a monster could kill children, whether intentionally or as a result of reckless disregard of human life in pursuit of crazed military objectives with foreseeable “collateral damage”—a euphemism to end all euphemisms—that would result in the deaths of many children.
Military leaders hell-bent on destroying the enemy often produce such collateral damage maintaining they are complying with the laws of war. Yet their assertions may not withstand scrutiny.
Such assertions are frequently based on a self-judging and ultimately greatly distorted sense of proportionality. Civilian losses are permissible under international humanitarian law, but only so long as the the attacks meet the requirement of proportionality. Moreover, a mere claim of proportionality does not make an attack legitimate.
Proportionality is a concept which is fairly subjective on the battlefield, even when the military has lawyers telling them that their proposed actions are proportionate to military objectives and therefore in compliance with international humanitarian law.
These “international lawyers”, however are not so independent as they may appear to be. They are typically under the same ultimate authority as the military officers they advise, and offer legal advice based on what may be their country’s highly idiosyncratic interpretations of international humanitarian law.
Ultimately, however, the question of proportionality may be decided when the responsible civilian officials or military officers, or simply soldiers, stand trial for alleged war crimes. Such trials, before national or international tribunals, may occur in 5, 10, or 40 years, or possibly even sooner.
Those who might be accused will need to take extraordinary care in planning travel abroad, as Vladimir Putin could attest, or earlier war criminals such as General Augusto Pinochet of Chile. Pinochet was (imprisoned in the U.K. from 1998-2000, though released for health reasons and returned to Chile where he faced continuing indictments until his death in 2006. Others were sent to the Hague for trial as the result of political changes in their country of origin. Examples include former Serbian President Slobodan Milošević (who died in his cell during his trial for war crimes in The Hague), and Serbian military leader Ratko Mladić, now serving a life sentence in The Hague following his conviction in 2017 for war crimes, crimes against humanity, and genocide.
But to return to our main theme, who could kill a five-year old child, perhaps the greatest miracle of Creation, or other children, also miracles of Creation?
The answer is clear.
Only a monster.
Only a personification of Evil, of the Devil, to use necessary concepts which however out of fashion are strikingly accurate and descriptive.
Only a person depraved of our common sense of humanity. Only a person who ignores the belief of major religions that all children are the children of God, and that there is a piece of the divine in every child, and in every human being.
These beliefs are the foundation for fundamental human rights and all rights under the laws of war not to become victims of war crimes.
Vladimir Putin is such a monster.
So are the Russian soldiers who kill Ukrainian children, or who kidnap them ripping them away from their families.
Only horrible monsters could paint “children” or “for the children” on the bombs they drop and the missiles they launch against civilian targets such as schools. This in fact happened in Ukraine. The Russian soldiers knew children would be killed. They acted out of utter depravity.
Similarly, Hamas terrorists targeted Israeli civilians including women and children in their attacks on Israel on October 7, 2023.
Utterly depraved, lacking any sense of shared humanity, these tribal monsters killed children.
There may have been worse monsters in the past, such as the members of the Nazi Einsatzgruppen (mobile killing units) who murdered up to two million people in Eastern Europe in World War II.1 But in the world of today, it is hard to imagine worse monsters than those who kill children.
In Gaza, an estimated 8,000 children and 6,200 women, out of a total of more than 20,000 killed, have died as as a result of Israeli attacks on targets in the enclave. These figures are from the health officials in the Hamas government in Gaza. That fact is about the only argument the U.S. and Israel have made to question the accuracy of the numbers. They have offered little concrete evidence that the overall figures are exaggerated. U.N. and human rights organization officials assert that the statistics have tended to be reliable, and according to an article in the British medical journal The Lancet there is no evidence of the numbers having been inflated2
Israel and Israeli military officials argue that they have complied with the requirements of international humanitarian law, including the principle of proportionality.
Still, many five-year-old and other children have been killed in pursuit of absolutist military objectives which many outsiders say are not achievable. Moreover, there is considerable reason to doubt that the avowed Israeli objective of extirpating Hamas in Gaza is a lawful military objective.
Assassination of Hamas leaders abroad would appear not to be a lawful military objective under interpretations of international and international humanitarian law accepted by most countries in the world. In this regard, Israel and the U.S. maintain extreme positions which may not be accepted by most other states.3
Under the international law of self-defense, which Israel has repeatedly invoked, extermination of an opposing military force is not, in itself, a lawful objective. Under the international law of self-defense under the U.N. Charter, military action must be necessary to halt an ongoing “armed attack” and be a proportionate response to such an attack. Whether the right of self-defense may be extended to exterminating the enemy so that it will never again be capable of launching an armed attack is extremely dubious.
To be sure, Rome razed Carthage at the end of the Third Punic War in 146 B.C. But that was over 2,000 years ago. In the meantime, the nations of the world have agreed upon the United Nations Charter (1945) and the Geneva Conventions on the Law of War (1949).
That may be of little interest to Vladimir Putin. That may not be the lesson in the Hebrew Bible which Benjamin Netanyahu has sought to draw citing the Jews’ response to the attacks from Amalek. But the battle with Amalek was long before even Carthage was razed.
A lot of things happened then, such as the massacre of the inhabitants of a defeated city or the enslavement of captured opponents, before advances in civilization led to the United Nations Charter and the Geneva Conventions on the Law of War.
It is time for Netanyhu and Putin and everyone else to reread the United Nations Charter and the Geneva Conventions. They constitute the present international law governing military actions in Gaza and Ukraine.
Yet we are not only talking about international law and international humanitarian law here, and differing interpretations of proportionality. We are also talking about basic notions of humanity and whether a nation such as Russia, Israel or the United States gives effect in practice to these basic notions of humanity.
At the end of the day, we are talking about when it is morally permissible, if ever, to kill a five-year-old girl like my friend, or to kill other children, each a miracle of Creation, during military operations in an armed conflict.
Those who callously intend to kill children, like Putin’s soldiers, and those who would foreseeably kill such children as acceptable collateral damage in pursuit of some crazed military goal, are morally responsible for their decisions.
In deciding what is acceptable collateral damage in applying the principle of proportionality, soldiers should be guided not by lawyers applying their country’s idiosyncratic interpretations of international humanitarian law, but rather by the image of a five-year-old girl playing in front of them, with all of her curiosity and potential, implicitly appealing to their notions of humanity and the understanding that what is at stake is ending the life of one of the miracles of Creation, in whose body and spirit a piece of the divine dwells.
All children are the children of God. That fact, or belief, should inform all military doctrine and decisions involving so-called “collateral damage”.
James Rowles is a former Lecturer on Law at Harvard Law School and professor of international law at other universities.
See, e.g., Owen Bowcott, “Benjamin Ferencz obituary; Last surviving Nuremberg prosecutor who played a key role in advancing the cause of international justice,” The Guardian, April 11, 2023 (13:01 BST).
Daniel Hurst, “Gaza children being killed or mutilated in ‘very extreme’ numbers, Australian doctor says; Reporting what is being directly witnessed by MSF healthcare workers does not indicate loss of neutrality, Natalie Thurtle stresses,” The Guardian, December 21, 2023 (1:08 am EST).
See “Israeli compliance with International Law including International Humanitarian Law–and policy of political assassination abroad,” Foreign Policy Decisions, December 31, 2023.
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