For over 20 months, there has been sustained focus from the media, international organizations, humanitarian groups, and many governments on mass civilian deaths, as well as injuries and other bodily harms including torture in Gaza. Coverage has centred on the number of Palestinian deaths, often framed by caveats on the reliability of mortality statistics as data is provided by the Hamas led Ministry of Health (yet, contestation has failed to significantly dent consensus on the scale of reported deaths, which is viewed by many authorities as an undercount). That reported death toll stood at 54,084 as of May 28, of which 8,304 are women and 15,613 are children. The rate and scale of death experienced by Palestinian children in this conflict dwarfs any other contemporary conflict. An article published in the Lancet finds that life expectancy in Gaza fell more than 30 years in the first 12 month of the conflict, affirming an exceptionally high mortality rate from the direct and indirect consequences of Israeli military action.
In the same vein, data is available on the traumatic injuries suffered by Palestinians, including fractures, peripheral nerve injuries, amputations of one or several limbs, spinal cord injuries, traumatic brain injuries, and burns. The scale of amputation for the general population, and for children in particular, has also been measured with an approximate estimate of 1,000 children with one or both legs amputated as a result of bombardment since October 7th, 2023.
Persistent media coverage also draws our attention to the wholesale destruction of buildings, and the annihilation of civilian infrastructure in the territory. Systematically destroyed civilian services includes water infrastructure, schools, universities, religious sites, desalination facilitation, and sewage systems. Medical infrastructure and most particularly hospitals have been systematically destroyed. Only 20 of Gaza’s 36 hospitals remain partially functioning, and the WHO has documented 686 “health attacks” in the Gaza Strip, affecting 122 health facilities and 180 ambulances since October 7th, 2023. The catalogue of violence has shattered the infrastructure necessary for humans to survive and comprises every single dimension of basic human need in society. Sustained analysis, here and here, implicates profound breaches of international humanitarian law by Israel in these military actions, including war crimes, crimes against humanity, and genocide.
But a focus on any singular catalogue of violence (whether mortality, injury, or infrastructure damage) without an amplification of other grievous and connected violations misses a broader point about the nature and form of total civilian harm in Gaza. War deaths and other similar measures are simply an inadequate measure for assessing war-related vulnerability and harm. Such a focus fails to account for the cumulative civilian harm experienced in Gaza. I argue that for knowledge, accountability, and reparation we need to reconceive of the consequences of violence in Gaza for civilians in a different way. We need to name and understanding composite, aggregate, collective, and layered harms to fully address what civilians have actually experienced during this conflict. The consequences for women of cumulative violations are particularly grave because sustained violations by Israel in this war are built on pre-existing societal inequalities and vulnerabilities. These inequalities follow from both the structure of local practices and customs regarding women, and from the nature, form, and impact of Israel’s occupation and interface with that polity. Elevating the connections between direct, indirect, and structural violence to civilians in Gaza reframes both consequences and liabilities for Israel under international law. More broadly it clarifies the obligations of an occupying power and has distinct consequences for transformative occupation practices. It clarifies responsibilities and liabilities in military decision-making during active hostilities and under the law of occupation, including assessing individual criminal responsibility for war crimes, crimes against humanity, and genocide.
I make several interlocking arguments that focus on the nature and form of cumulative civilian harm in Gaza, building on prior work. First, I explain what is meant by cumulative civilian harm and why this is a necessary concept to reframe our understanding of the scale and profundity of violence experienced by the civilian population in Gaza. Second, I argue that cumulative civilian harm moves us from a siloed perspective that categorizes civilian targeting and harm as a series of singular unconnected violences to a holistic understanding of scales of harm over time. Cumulative harm assessments force us to grapple with the density of violence and multiple violations experienced by individuals, families, and communities concurrently as well as sequentially and intersectionally. Third, this viewfinder has several legal implications for command decision-making, the threshold of gravity as a matter of International Criminal Court (ICC) jurisprudence, and crimes against humanity and genocide analysis, which I elaborate further upon below.
Cumulative Civilian Harm Defined
Cumulative civilian harm is a concept in development, led by the work of a research group at Essex University with multiple academic partners in the UK and beyond (for full disclosure, I am a member of this group’s advisory board). This concept is intended to address existing blindspots in international law, which does not sufficiently consider the aggregate impacts of protracted armed conflict on civilian populations, including individual and societal trauma, socio-economic degradation, severe and prolonged infrastructure decline, and the accumulation of civilian death across repeated attacks over time. I build on the notion of cumulative civilian harm intermeshed with feminist theories of harm and continuums of violence, undergirded by a recognition of the political economy of war as it affects women, to explain how civilians experience intersectional and sustained harm in Gaza, in a way that existing paradigms simply do not account for.
The concept of cumulative civilian harm is based on the fundamental protection provided to civilians under the law of armed conflict, from the absolute principle that the civilian cannot per se be the object of attack and that precautions must be taken in military targeting when harm is anticipated for civilians as a result of actions that provide military advantage. As such, military commanders are under strict obligations to assess the necessity and proportionality of identified military targets and decision-making which adversely impacts the civilian population. Importantly, under the law of occupation military commanders are under specific obligation to ensure that any action taken protects the civilian population. In parallel, the duty of “constant care” for commanders set out in Additional Protocol Article 57(1) demands military commanders consistently act to protect the civilian protection, both generally and specifically. Constant care requires situational awareness of the violence and harm that has befallen the civilian population before another operation or attack is commenced, as relevant to any next decision the commander makes.
However, these rules were developed to some greater or lesser degree in a framework that envisaged military decision-making as a series of one-off decisions and did not specifically anticipate that the civilian population that might be adversely affected was persistently the same population subjected to the same military measures over and over again (with no end in sight). As a result, the cost of persistent attacks on a population is not adequately measured. While the measurement of incidental harm pursuing a valid military objective is required to take account of changed circumstances, in practice it does not currently account for the cumulative, sequential targeting of civilian objects or persons. A focus on cumulative civilian harm demands close attention to incidental civilian harm that should be calculated taking account of connected prior attacks as an intrinsic dimension of evaluating incidental civilian harm in targeting.
Moving from Artificially Siloed Analysis to a Holistic Understanding of Harm
Contemporary law of war analysis is generally tempered by a set of temporal and geographical assumptions about the progression of war, namely that conflict moves through both the civilian population and territory. Limited temporality is thus produced in each decision taken by a commander, which is considered as a stand-alone decision rendered simply on the facts before her, and assessed in a silo for its compliance with the law of armed conflict. Thus, disembodied frames dominate the assessment of command decisions in a military operation, even when it involves a series of connected targeting or other decisions, and flattens out the relevance and consequences of prior decisions. It also acts to screen the “operation” as a whole from assessments of illegality because each legal assessment is limited to an individual decision that may, when taken out of the wider operational context, pass a proportionality test that the operation as a whole would not, if considered cumulatively. The tragedy of this artificial silo for the civilian population is that when that population has been repeatedly subject to a series of connected targeting or other decisions, it is the cumulative effect of these decisions, not merely the consequence of one specific decision, which is decisive to their (lack of) protection and exacerbates their vulnerability.
The example of civilian displacement in Gaza illuminates this point. Evacuation of civilians from combat zones in war can be lawful. However, as a threshold matter mass civilian evacuations in Gaza do not appear to meet the requirements of imperative military necessity and are not undertaken for the safety of the civilian population. Regrettably, legal and political commentary on repeated evacuations for Gazans has focused on whether specific movements (for example, Gideon’s Chariots or other specific operations) are per se lawful. Recall that international humanitarian law (IHL) requires that forced displacement must be temporary, protective, and conducted safely. Commentators broadly agree that the costs of evacuation for the civilian population are high. What then, if we assessed the lawfulness of forced displacement through a cumulative civilian harm lens, addressing what it means to be repeatedly and unsafely moved within the course of a single conflict? A cumulative analysis would address the deepening lack of (or increase in) safety as a result of each additional displacement, as well as the increasing costs every single time a population is forced to move again. This cumulative analysis takes into account that the same population has also experienced mass killing, maiming, homelessness, hunger, lack of water, lack of sanitation, and other consequences of prior military targeting of civilian infrastructure. A cumulative assessment both examines mass evacuations in their totality to assess legality after the fact and equally requires that at the front end the military commander assesses any new evacuation in light of prior evacuations (not least to assess her own potential liability for the commission of war crimes).
Moreover, if we apply a gendered and intersectional lens to (multiple sequential) evacuations, we would see the specific gendered vulnerability of the largely female and child population that is being constantly forced to move. Such an intersectional lens recognizes that civilian victimization leaves women consistently in the crosshairs of war. Palestinian women have “choiceless choices” in practicing everyday survival, in a context where their lives and the lives of their children are denied humanity and even grieveability. Cumulative harm allows us to surface women’s reproductive status (pregnant, nursing or post-partem), maternality, and the implications of the age of the population, including chronic medical conditions (e.g. hypertension, diabetes, mobility, and cardiovascular disease). An intersectional and cumulative assessment of female civilian vulnerabilities would account for the gendered consequences of family dispersal in a highly patriarchal cultural context. Specifically, this would better address the impacts on women who must move absent male family members to accompany them as they are forced to relocate less and less safe places. Such an assessment also mandates addressing women’s vulnerability to violence or exploitation as a result of forced displacement. A cumulative civilian harm assessment encompasses this intersectional lived reality for female civilians on the ground. It also demands attention to the cost of forced displacement to children, including the profound vulnerability to further violence and profound psycho-social trauma. Cumulative civilian harm analysis allows us to name the inadequately provided-for prior evacuation(s) added to the bombardment, hunger, and distress of thousands of children and makes these prior harms unmistakably relevant to every next decision a military commander makes regarding that same population.
In Gaza, sustained forced and unsafe displacement, where displacement per se appears to be the political goal of the occupying power, seems to be designed to undermine the functioning and integrity of social and familial bonds. As a result, the military objectives undermine the social and economic integrity of the civilian population as a whole. This lens is necessary in Gaza because, without it, we end up in a never-ending listing of singular violations and harms but fail to put what we see together in a unified whole. The amalgamated whole enables us to face the total consequences for the civilian population resulting from military decisions exerted upon them. It enables us to better assess the potential liability of commanders (both civilian and military) for the commission of war crimes and crimes against humanity.
Legal Implications of Cumulative Civilian Harm Analysis
Cumulative civilian harm analysis could arguably affect criminal law assessments of command decision-making for targeting decisions when the same population is consistently the subject of cumulative targeting and/or adverse military decision-making. One legal consequence of a cumulative civilian harm lens is that it would place clear and unrelenting obligations on the military commander both at the tactical and senior command levels, to assess the full gamut of what the civilians have already suffered prior to making any additional military decisions. Proportionality, for instance, is deeply implicated in a cumulative civilian assessment because this would demand an engagement with the cost of the military decision balanced with the knowledge of prior evidenced cumulative civilian suffering. A cumulative civilian harm assessment is also intrinsically linked to the core principle of reducing civilian suffering (which includes a ban on terrorizing civilians) coupled with the requirement to prevent unnecessary suffering, and ensures that suffering is understood in the lived cohesive reality as experienced by the vulnerable civilian, not merely in the context of one isolated strike.
More broadly, when cumulative civilian harm is at the heart of civilian protection, the costs to the civilian population are holistically understood. Unavoidably so. This also shifts the potential of the “gravity” threshold assessment under the ICC’s jurisprudence, not least because it moves us from an incident-focused consideration of international criminal liability to a broad society-based assessment of the gravity of harms experienced by the civilian population through a military campaign.
Cumulative harm assessments also provide linkage across specific violations of international law to demonstrate systematic patterns of violations relevant to potential liability for crimes against humanity and genocide. This move from a concentration on whether individual attacks are in compliance with international humanitarian law, to assessing the totality of a sequence of connected attacks involves a legal and contextual shift. Such a move also reaffirms the point made by the government of Belize in its intervention in the genocide proceedings against Israel at the International Court of Justice that “it follows that it is possible for a State to intend to destroy, in whole or part, a relevant group for the purposes of Article II, and for it to carry out that intent by, inter alia, engaging in a series of IHL-compliant attacks resulting in the collateral deaths of members of the group.” Assessment for cumulative harm is necessary to avoid the artificial position that the protection of the civilian is absolutely unconnected to prior attacks and their consequences on the future decision-making of the military commander involving those same persons and objects.
Cumulative civilian harm gives us a better vocabulary to meet the lived, brutal, and unrelenting violations experienced by civilians in Gaza, and if not to offer accountability then at least to be honest about the scale and incommensurability of that harm.
Postscript
Commentators might observe that the analytical framework of cumulative civilian harm could also apply to the experience of ongoing bombardment of the civilian population in Israel. This is, in principle, correct. Equally, the application of cumulative harm analysis requires attention to scale and concrete measured costs of violence, as well the capacity of the civilian population to be sheltered, materially protected, and have both macro and micro exit from military action in question.
