As the situation between Israel and Hamas has deteriorated, complex legal terms have been increasingly misused and abused -- whether due to ignorance, carelessness, or ill will. Both sides have been accused of "war crimes" and "indiscriminate' attacks. As a lawyer and a veteran, I like law and facts. Law and facts have objective meaning, Emotions are subjective can be used to distort facts -- but if you look through the emotion, the facts and the law are always there.
I served in Bosnia with the Canadian Armed Forces. I saw the after-effects of indiscriminate shelling and the intentional targeting of civilians. I visited mass graves filled with women and children. I saw what happens when parties to a conflict clearly and intentionally ignore international law and descend into chaos. It is horrific. Those who use the term "war crime" and "indiscriminate" should not do so lightly, given the terrible facts that these terms convey.
Any consideration of the legal issues stemming from the recent war between Israel and Hamas must include an accurate understanding of three key terms: distinction, proportionality, and intentionality.
Distinction. International law requires parties engaged in armed conflict to reasonably distinguish between combatants and civilians, and between military and non-military targets. Targeting civilians is a war crime, but targeting military positions is legal. Incidental civilian casualties - however tragic -- do not constitute a war crime so long as proportionality and other legal principles are upheld (see below).
Israeli forces select targets based on military value, including missile caches, tunnels, and Hamas operatives and command centres -- to name just a few. The deliberate placement of Hamas assets in civilian buildings by no means diminishes their military value. Distinction is upheld so long as the target is chosen because of its military value, not the presence of civilians.
Israel takes remarkable measures to reasonably distinguish civilians from military targets by warning Gazans prior to operations. As retired Canadian Major-General Ed Fitch wrote in the Vancouver Sun on July 14th:
"Israel takes great pains to provide civilians with advance warning through text messages, phone calls, warning leaflets, and sound bombs. While this enables Hamas operatives to flee targeted sites minutes before air strikes, it likewise allows Israel to destroy terrorist infrastructure with minimal collateral damage... many of those who have died in Gaza were called by Hamas to congregate on the rooftops of buildings that Israel has warned will be targeted."
The groups at war with Israel, primarily Hamas and Islamic Jihad, make no attempt to distinguish between Israeli civilians and military targets. Their missile fire is directed indiscriminately at Israeli cities. Their infiltration tunnels emerge in Israeli territory next to, or even inside, civilian communities.
Hamas also openly uses Gazans as human shields. Hamas fighters dress in civilian clothes and conduct military operations out of civilian structures such as homes, mosques, hospitals, and United Nations schools. Each of these actions violates international law.
Proportionality. This principle requires that incidental civilian casualties must not be excessive in proportion to the military advantage of the operation or mission.
The fact that one side suffers fewer casualties than the other does not mean that their response is disproportional or illegal. If it did, the simplest way to determine which side is more lawful would be to count casualties. This is nonsensical, particularly when you consider that, in WWII, German deaths outnumbered British deaths by about 17 to 1.
Proportionality requires weighing the military value of striking Hamas positions against the possibility of incidental civilian casualties. Proportionality is both qualitative as it is quantitative, and it is exceptionally difficult for those without access to intelligence to determine proportionality from afar. It requires nuance and case-by-case insight into the quality and level of information commanders have about the military value of a target and the possibility of civilian losses.
Israeli operations are conducted with extensive legal oversight, as seen in legal advisories and ongoing review of targets by IDF lawyers trained in international law and well-versed in proportionality.
Israel's extensive measures to warn civilians, in addition to the practice of regularly aborting missions, clearly demonstrates that Israel makes an effort to reduce collateral damage, which in turn strengthens its claim to proportionality.
Lastly, Israel's claim to proportionality is backed by increasing evidence that men of fighting age are overrepresented in the Gazan casualty figures. Analysis by the BBC shows that the casualties among women and children - every one of them a tragedy - are significantly underrepresented in the data.
Intentionality. This is what we would call mens rea ("a guilty mind"). There is a legal difference between intentionally targeting civilians and firing an errant shell or misidentifying a target. These two examples are real challenges Israeli forces faced in battling Hamas fighters embedded among civilians in Gaza.
In any conflict, the most advanced militaries operate in highly fluid environments, with imperfect information, and with analysts subject to human error. These factors invariably lead to terrible mistakes, but those reflect operational failures rather than intentional violations of the law.
The tragedy of friendly fire is perhaps the starkest proof that militaries can make deadly errors that are neither intentional nor illegal. In the same vein, civilian casualties are painful, but they do not automatically represent a breach of the international law so long as the distinction, proportionality, and intentionality are observed (and other rules of course).
Just as the core principles of international law are not something to be eschewed by militaries, they should not be abused by activists for political purposes. Those who care about contributing to public discourse on the conflict should do so with accuracy and truthfulness. Whatever side you're on, let's stick to the facts.
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