📰 Supreme Court orders tough action against illegal calls for adoption of COVID-19-orphaned children
Court directive follows NCPCR, on Monday, raising the alarm on a spate of complaints on such illegal adoption
•The Supreme Court has directed the States and Union Territories (UTs) to take stringent action against private individuals and NGOs who invite people to illegally adopt children orphaned by the COVID-19 pandemic.
•A Bench of Justices L. Nageswara Rao and Aniruddha Bose, in an 18-page order published on Tuesday, ordered the government to step in and prevent private entities from revealing the identities of COVID-19 affected children, usually on social media, and inviting people to adopt them.
•“The State Governments/Union Territories are directed to prevent any NGO from collecting funds in the names of the affected children by disclosing their identity and inviting interested persons to adopt them. No adoption of affected children should be permitted contrary to the provisions of the Juvenile Justice Act, 2015,” the court ordered.
‘CARA involvement must’
•It was illegal to invite strangers to adopt children, already traumatised by their personal losses, without the involvement of the Central Adoption Resource Authority (CARA), a statutory body under the Women and Child Development Ministry, it said.
•“Invitation to persons for adoption of orphans is contrary to law as no adoption of a child can be permitted without the involvement of CARA. Stringent action shall be taken by the State Governments/Union Territories against agencies/individuals who are responsible for indulging in this illegal activity,” it observed.
•The order came after the National Commission for Protection of Child Rights (NCPCR), on Monday, raised the alarm on a spate of complaints about illegal adoption of COVID-19 orphans through private individual and organisations. The Commission said certain private individuals and organisations have been actively collecting data on these children while claiming that they wanted to assist families and children in adoption.
•“Social media posts are circulating that children are up for adoption. This is plainly illegal and violates the Juvenile Justice Act,” advocate Shobha Gupta, for intervenor ‘We the Women of India’, made an impassioned plea.
•NCPCR statistics show that 3,621 children were orphaned, 26,176 children lost either parent and 274 abandoned between April 1, 2021 to June 5, 2021. The second wave of the pandemic was at its worst form during this period, leaving a trail of death across the country.
•The apex court is hearing a suo motu case on the plight of children impacted by the pandemic.
Child trafficking
•Advocate Gaurav Agrawal, amicus curiae, said cases of child trafficking have been going up. The government should intervene to care and protect children orphaned, abandoned or whose families have lost their earning members.
•The court said lack of knowledge about the rights of children under the Juvenile Justice Act had led to many falling victim to efforts at illegal adoption, etc. It court directed the Centre, States and the Union Territories to give wide publicity to the provisions of the 2015 Act at regular intervals so as to make the general public, children and their parents or guardians aware of such provisions. “It is true that the majority of the populace are not aware of their rights and entitlement to several benefits announced by the governments,” it noted.
•The court ordered the States/ Union Territories to continue with their efforts to identify children in need of care and protection after March 2020. and upload their details on the NCPCR database in order to provide them welfare schemes.
•The court said these children should be tracked down through the District Child Protection Officers (DCPOs), childline, health officials, panchayati raj institutions, police authorities, NGOs, etc. The DCPOs should contact a child as soon as it heard about the death of the parents and provide for its basic needs. If the guardian of the child was not found suitable, the DCPO should produce the child before the local Child Welfare Committee (CWC).
•“DPCO shall take the assistance of government servants at the gram panchayat level to monitor the welfare of the disconsolate children devastated by the catastrophe of losing their parent/parents,” the court directed.
📰 India expected to grow at 8.3%, says World Bank
The growth rate forecasted for India for 2021-22, the World Bank is an upward revision from its January forecast of 5.4%.
•India’s economy is expected to grow at 8.3% for Fiscal Year 2021-22 as per the World Bank’s latest projections. This rate, however, masked the damage caused by the “enormous” second wave of COVID-19, the Bank said in its June 2021 Global Economic Prospects released on Tuesday. The world economy is expected to expand 5.6% , the fastest post-recession growth rate in eighty years, but global output will still be 2% below pre-pandemic projections by year-end.
•The growth rate forecasted for India for 2021-22, the World Bank is an upward revision from its January forecast of 5.4%. However this revision “masks significant expected economic damage from an enormous second COVID-19 wave and localized mobility restrictions since March 2021,” the report says, adding that activity will follow the same but less pronounced collapse and recovery seen in last year’s COVID wave.
•“Activity will benefit from policy support, including higher spending on infrastructure, rural development, and health, and a stronger-than[1]expected recovery in services and manufacturing,” the report says.
•For FY 2022-23 growth is expected to slow to 7.5% as a result of the pandemic’s lingering effects on the balance sheets of households, companies and banks and possibly low levels of consumer confidence and heightened uncertainty around job and incomes.
•For India the massive COVID-19 wave had undermined the sharper than expected rebound in activity for the second half of FY 2020-21 – particularly in services, according to the Bank. Since March, foot traffic around retail spaces has slowed to below a third of what it was in pre-pandemic times.
•For the world as a whole, losses to per capita income will not be reversed by 2022 for some two-thirds of emerging market and developing economies, the Bank said. Low income countries that have lagged in vaccinations have witnessed a reversal in poverty reduction, with the pandemic exacerbating insecurity and other long-standing challenges.
•“While there are welcome signs of global recovery, the pandemic continues to inflict poverty and inequality on people in developing countries around the world,” World Bank Group President David Malpass said in a press statement.
•“Globally coordinated efforts are essential to accelerate vaccine distribution and debt relief, particularly for low-income countries. As the health crisis eases, policymakers will need to address the pandemic’s lasting effects and take steps to spur green, resilient, and inclusive growth while safeguarding macroeconomic stability,” he said.
📰 A necessary reversion: On going back to centralised procurement of vaccines
The changes in vaccine policy should help improve India’s response to the pandemic
•The Centre has announced a much-needed course correction in India’s vaccination policy with Prime Minister Narendra Modi taking the podium to announce that the month-old decision to leave States to procure vaccines on their own for their 18-44 population would be ending in two weeks. States were allowed to procure 25% of the vaccines manufactured and the Centre 50%, a policy that the Supreme Court termed “irrational and arbitrary”. The Court’s comments have had a salutary effect. From June 21, the Centre will be procuring 75% and States will no longer have to pay vaccine companies for the same. Vaccines will continue to be free for all those who choose to get their shot at government centres. The 25% vaccines that were allotted to private hospitals will continue too, though the service charges that they charge will be capped at ₹150. This ceiling price on vaccines in hospitals will bring predictability and be hugely beneficial to citizens. The Centre, which controlled all supply of vaccines and had negotiated prices and orders with Bharat Biotech and the Serum Institute saw itself desperately short of supply right in the middle of India’s deadly second wave. The hospital emergencies worsened the Centre’s panic and so it chose a path that no country had undertaken, of devolving the responsibility of buying vaccines to States. Health has traditionally been within the purview of States, and it stands to reason that they would invariably have to deal with the challenges that vaccination throws up. This includes vaccine hesitancy, the problem of transportation, the availability of trained personnel and the existing capacity at health-care sites. Faced with the intensity of the second wave, States demanded more vaccines and autonomy in deciding how to administer them. What resulted were frequent public spats, with the Centre blaming States for inefficiently using available stocks and yet demanding more.
•Though there are substantial numbers of senior citizens yet to be vaccinated, particularly with a second dose, it is clear that the foreseeable demand will be in the sub-45 category. The Government appears more confident of getting a steady stream of supply from Bharat Biotech and the Serum Institute and, in a bold move, has ordered 30 crore doses of an untested vaccine from the Hyderabad-based Biological E. Assuming that a third wave is not in the vicinity, these changes in total could be the beginning of a smoother, more efficient vaccine roll-out. Mr. Modi’s announcement was preceded by a truculent defence of himself and his government and passing on blame to a variety of actors, including governments before 2014, for India’s very real shortcomings on vaccination. However, the path to positive change is often meandering, and surviving the pandemic and being wiser from mistakes must be the spirit in which these policy changes are adopted.
Emerging variants, with evidence of higher transmissibility and immune escape, demand re-strategised responses
•If there is one tool in the COVID-19 pandemic response, which India has been slow in adoption and has used sub-optimally, it is genomic sequencing. An effective COVID-19 pandemic response requires, inter alia, keeping track of emerging variants (total 10 till now including variants of interest and concern) and then conducting further studies about their transmissibility, immune escape and potential to cause severe disease. Therefore, genomic sequencing becomes one of the first steps in this important process. When the success of the United States and the United Kingdom in containing the virus is discussed, a lot of credit is being given to the increasing vaccination coverage; however, it is often forgotten that alongside, these countries have scaled up genomic sequencing, tracked the emerging variants and used that evidence for timely actions. India seems to be faltering on both expanding vaccination coverage and genomic sequencing. Unfortunately, there is not enough attention to scale up genomic sequencing, which as per the original plan was supposed to cover 5% of confirmed COVID-19 cases.
•Though the procedural steps such as setting up the Indian SARS-CoV2 Genomic Consortia, or INSACOG have been taken, the sequencing has remained at a very low level of a few thousand cases only. It is no surprise that we understand the Delta variant (B.1.617.2, the original lineage B.1.617 was first reported from Maharashtra, India in October 2020) far less than the Alpha variant (B.1.1.7, first reported from Kent, England in September 2020) reported just a month before Delta. The challenge of insufficient genomic sequencing is further compounded by the pace at which data is being shared, especially when the emergence of strains is so vital in tracking and responding to a pandemic. Reportedly, the Indian government took two weeks, from early March — when research scientists submitted information on new variants — to issue a public announcement on the variants on March 24, 2021.
The Delta strain
•Amidst this, the release of findings of the Council of Scientific and Industrial Research-Institute of Genomics; Integrative Biology and National Centre for Disease Control and Academy of Scientific and Innovative Research study; tracking variants of SARS CoV-2 in Delhi, on a pre-print server (yet to be peer reviewed) is a welcome change and provides new insights.
•Based upon the analysis of nearly 3,600 genomic sequence samples from November 2020 to April 2021, the authors have reported that by April 2021, the Delta variant became the most circulating variant in Delhi and was found in nearly 60% of the samples analysed; is 50% more transmissible than the Alpha variant (which already had 70% higher transmissibility over the ancestral virus); is likely to be associated with high viral load, as reflected by the declining Ct value (for RT-PCR) over the study period and resulted in a higher proportion of breakthrough infection (people already vaccinated getting infected). Based upon these findings, the authors attribute the Delta variant responsible for the pandemic wave (which was fourth for the city state) in Delhi in April-May 2021. However, the authors did not find any difference in severity of disease or case fatality rate due to the Delta variant and suggested the need for further studies.
•This is the first detailed study of SARS CoV-2 genomic sequencing data from any Indian State and provides very useful insight on the behaviour and impact of Delta variants. Around the same time, Public Health England (PHE) reported that the Delta variant has become the most common circulating strain in the U.K., replacing Alpha. The early data from the PHE has interpreted that the Delta variant may be responsible for more severe disease and higher rate of hospitalisation compared to all previous variants. A week before this data, on May 27, the PHE reported that the effectiveness of a single dose of vaccine (amongst symptomatic patients) was lower against the Delta strain. On June 3, medical journal The Lancet published research findings from laboratory studies which examined the neutralising capacity of antibodies from individuals vaccinated with two doses of Pfizer-BioNTech, which was nearly 5.8 fold lower against Delta variants and 2.6 fold less against the Alpha variant, when compared with the ancestor virus.
•Our scientific knowledge and understanding about emerging strains is going to be the key to deploy public health interventions (vaccines included) to fight the pandemic. The emerging variants — with early evidence of higher transmissibility, immune escape and breakthrough infections — demand continuous re-thinking and re-strategising of the pandemic response by every country. Scientific research would make a difference only if it results in informed policy decisions. There are a few steps Indian policy makers should consider as urgent.
The steps ahead
•First, India needs to scale up genomic sequencing, across all States. There should be sufficient and representative samples collected for genomic sequencing to track district-level trends in circulating variants. More genomic sequencing is needed from large urban agglomerations. A national-level analysis of collated genomic sequencing data should be done on a regular basis and findings shared publicly.
•Second, the Indian government needs to invest and support more scientific and operational research on vaccine effectiveness. The data should be analysed on a regular basis and should include various stratifiers such as age, gender and comorbid conditions, etc.
•Third, there are early indications of immune escape and reduced vaccine effectiveness against the Delta variant (especially after one shot). India, till the end of May, has administered at least one dose of vaccines to 43% of people older than 60 years and 37% of those older than 45 years. Does it mean the focus of vaccination should be to achieve saturation coverage of the high risk population, with both shots, than one shot to everyone? Does it mandate a need for a reduced gap between two doses of Covishield for anyone older than 45 years? Should vaccination of those 18-44 years be put on hold till vaccine supply is assured or should it be done only in districts where the Delta strain is predominant? These are the questions which experts need to deliberate and come up with the answers.
•The data from genomic sequencing has both policy and operational implications. The State and district officials should engage the epidemiologists in coming up with practical and operational implications and strategies. As Indian States plan to open up after COVID-19 restrictions, the settings with predominantly the Delta variant in circulation (which has higher transmissibility) should aim for far stricter adherence to COVID appropriate behaviour, in public places.
Use evidence for actions
•Continuation of many unproven and ineffective therapies in COVID-19 treatment guidelines is proof that India is not quick in adopting evidence to the practice. There is a need for rapidly expanding genomic sequencing, sharing related data in a timely and transparent manner, and understanding of the impact of new variants on transmissibility, severity and vaccine effectiveness. The only assured way to fight the pandemic is to use scientific evidence to decide policies, modify strategies and take corrective actions. As India prepares for the third wave, increasing genomic sequencing and use of scientific evidence for decision making are not a choice but an absolute essential.
📰 State interventions, Lakshadweep’s future
The archipelago’s integration into the mainstream should not lead to emotional alienation and physical damage
•The Lakshadweep Administration, which is now facing a storm over its draft rules introduced by its Administrator, has now provided a fresh rationale for its proposals, shifting from public policy to public purpose ignoring public interest, whereas the strategic issue is the interplay of ecological fragility, insular cultural geography and strategic location. There are two competing visions for its future. NITI Aayog, in 2019, identified water villas and land-based tourism projects as the development issue faced by the islands, suggested zoning based on land acquisition and focused on sustainable development ignoring the fragile environment and culture. The Integrated Island Management Plan prepared under the guidance of the Supreme Court and National Centre for Sustainable Coastal Management, in 2016, had rejected ‘home stays’ in view of the strict social customs and strong resistance of the vast majority. It stipulated that development programmes be implemented in consultation with the elected local self-government bodies adhering to scientifically determined plans.
Questionable public purpose
•The rationale, or thinking, of the appointed Administrator of the Union Territory, planning for flight loads of tourists, through four controversial proposals — the Lakshadweep Development Authority Regulation, Prevention of Anti-Social Activities Regulation, Lakshadweep Panchayat Regulation and Lakshadweep Animal Preservation Regulation — as “regulations of peace, progress and good government”, has apparently not even been able to convince the Union Home Minister. For the local people, and across the political spectrum, these changes are arbitrary, authoritarian and will destroy the way of life. The Administrator’s fresh response is reliance on the power of government or ‘public purpose’ for acquiring private land, unnecessarily opening the door to conflict and the Supreme Court.
•The Supreme Court in the case of Dev Sharan vs State of Uttar Pradesh, in 2011, pointed out that, “Any attempt by the State to acquire land by promoting a public purpose to benefit a particular group of people or to serve any particular interest at the cost of the interest of a large section of people especially of the common people defeats the very concept of public purpose...”
•The proposals have been challenged before the High Court of Kerala, which had, in 2019, in a separate case, recognised the special status given to the inhabitants for protecting their ethnic culture and traditions, and to maintain the serene atmosphere in these islands without unnecessary interference by mainlanders.
•Lakshadweep is unique. It is an egalitarian coconut tree owning society, with little economic inequality, a very high level of both literacy and unemployment. The Muslim community is designated as Scheduled Tribes. The land area is fully covered with coconut trees, the main agricultural crop, and fisheries is the main economic activity employing a quarter of the working population. Electricity generation is mainly through diesel generators and is expensive and solar electricity has limitations as it requires a large land area. They need employment in the mainland.
Review tourism strategy
•The Lakshadweep Administration has framed the development issue as the development of the islands on the lines of the Maldives, whereas the fact is that it is adopting a very different strategy without any real consultation.
•In the Maldives, tourism since the 1970s is centred on water villas in uninhabited islands, ensuring that very few coconut trees are cut with limited home stays introduced in 2015, and few cultural and other conflicts. Second, a ‘one island, one resort’ policy has kept pressure on reefs low due to a wide distribution of the tourist population. Third, the business model is about giving coral reefs economic significance where rich and healthy reefs are essential for private capital’s economic returns. Fourth, tourists come because of the natural beauty and the sheer amount of marine life; resort owners commit to conserve the reefs and divers at the resorts are quick to report illegal activities. Fifth, regulation is limited to ban on reef fishing and collection of corals, having no centrality to land acquisition.
•In Lakshadweep, the separation of resorts from villages, including for drinking water, sewage disposal and electricity, gives priority to the fragile ecosystem, socio-economic conditions and well-being of the inhabitants. Groundwater occurs as a thin lens floating over the seawater and is tapped by open wells replenished by the monsoon; all the inhabited islands have a scarcity of drinking water supply. The conventional method of sewage treatment is not feasible because of the coral sandy strata and high water table. The existing water balance is already under stress and inhabited villages cannot accommodate tourism. Why the Ministry of Environment is quiet about this is not clear.
Political insensitivity
•Meanwhile, public interest is being re-defined, shifting the debate from private tourism to urbanisation, both inappropriate for inhabited islands. Despite inhabited islands being defined as ‘cities’ in the Census, they do not need to be developed as ‘smart cities’ with a focus on infrastructure requiring large-scale construction and land acquisition. The irony is that the Administration has anticipated public opposition and, despite there being no case of murder, robbery or local involvement in smuggling, the new draft legislation seeks preventive detention for ‘anti-social activities’, and covers “cruel person” and “depredator of environment”.
•The relation between state and society is being arbitrarily changed, despite the constitutional protection. The powers of the panchayats have been withdrawn on grounds of corruption, an unusual step. The two-child policy for those seeking election to panchayats does not exist in other Union Territories or States. A ban on beef has been instituted, contrary to the practice in Northeast India. Liquor is being permitted for tourists in inhabited islands.
Innovation needed
•Lakshadweep is a uni-district Union Territory with a top-heavy administrative system of more than half-a-dozen All-India Service officers essentially creating work for themselves.
•Interventions should be limited to setting boundary conditions for both resorts and development institutions, with income from taxing resorts given to the inhabitants. Active state intervention should be limited to generation of electricity in partnership with public sector units, and water, sewage and health as well as education, technology-enabled employment in call centres and future employment in the mainland.
📰 Preparing for the next COVID-19 wave
Vaccinating the vulnerable, constant surveillance and reliable data will help India tackle the third wave
•Using the data in Karnataka, Aniruddha Adiga et al. show in a paper in medRxiv that a third COVID-19 wave is imminent in the State even if the strongest non-pharmaceutical interventions (NPIs) are implemented and 1,67,000 persons are vaccinated each day. This is corroborated by evidence from other countries. It took nearly eight weeks in the U.K. to go from a second to a third wave, 17 weeks in Italy, and 23 weeks in the U.S. Some people are still debating whether there will be a third wave. It is not a question of ‘if’ but ‘when’. In all likelihood, the next wave might be in late November or December in India. Despite the quantum of cases in the next wave, it is important to plan and prepare for it. These are several actions that India needs to take to prepare for and tackle the next wave.
Vaccination
•Data from several States indicate that the average age of mortality is reducing in several States and stabilising at 30-45 years. This suggests that vaccination might have already offered survival advantage to those aged 45 years and above. This was the main objective of providing vaccination: preventing deaths and limiting serious morbidity requiring ventilation or oxygenated beds.
•Given the undoubted benefits of vaccination, extraordinary efforts will have to be made to secure vaccines for vulnerable people. The vaccine supply constraints are likely to be resolved by the end of July. Till then, people with co-morbidities, irrespective of age, should be prioritised for vaccination. Micro planning for vaccination should be strengthened. For this, health workers and volunteers need to go house to house and prepare lists of all the eligible beneficiaries. Next, efforts should be made to help in registering and vaccinating the vulnerable. We estimate that the country should vaccinate at least 10 million people each day to cover the vulnerable population in the next three months. To reach this pace, it is important to develop a strong mobilisation strategy, address the concerns of the vulnerable, and improve access to vaccination sites. A strong focus on bottom-up micro planning, similar to what was adopted during the measles-rubella elimination programme and polio programme, can be helpful.
The periods between waves
•We only wake up to disease threats when there is a large outbreak. We have selective amnesia to health-related issues in the intervening periods and quickly get back to ‘normal’ activities. But it is these intervening periods between waves/outbreaks that are actually important. It is during these periods that surveillance needs to be meticulous. One of the critical aspects of surveillance is to sustain aggressive testing, especially in symptomatic individuals, and keep a close watch on the seven-day moving average of the test positivity rate (TPR). A TPR of less than 5% indicates that the disease is under control. Another important facet of surveillance is genomic sequencing to keep a watch on the emergence of new variants of SARS-CoV-2.
•The surveillance programme in the country needs strengthening, and strict review should guide the early identification of clusters. Timely investigation and early containment of outbreaks should be the mainstay of preventing the onslaught of cases and deaths. Combining the syndromic approach with enhanced testing levels is necessary for all the areas. Preparing for the next wave involves developing a standardised definition for minimum cases to be detected in each part of the country. Based on the available data, States can aim to detect and review, say, 1,000-1,300 cases per million each month provided adequate testing is done. This will help them identify areas where there is poor reporting and strengthen the overall response in these areas. In order to detect these cases, nearly 20,000-25,000 tests per million will have to be done each month.
Use data-driven interventions
•As stated by historian John Barry, the most important lesson from the 1918 influenza is to “tell the truth”. Whenever true figures are suppressed during a pandemic, the data get skewed. As a result, modellers make unreliable projections, and wrong policies and programmes are formulated. Hence, data should be made freely available to experts. Systematic collection, compilation and analysis of clinical, epidemiological and laboratory data is paramount to decision-making. A core expert group comprising clinicians, epidemiologists and laboratory personnel should be constituted at every level (district, State and national) and entrusted with the responsibility of suggesting appropriate interventions to the concerned authorities. Data alone should drive interventions.
•The COVID-19 pandemic has been associated with a high attack rate among household contacts. Therefore, non-pharmacological interventions represent the cornerstone to halting transmission. These include avoiding mass gatherings, closing schools, isolating those with infection, contact tracing, and implementing infection prevention strategies in health care settings. These are critical to achieving at least a 50% reduction in transmission, which correlates with a basic reproductive number lower or equal to one (R0 ≤ 1). A critical determinant that ensures the success of any intervention, whether vaccination or NPIs, is appropriate communication. Therefore, a robust communication strategy must be developed that is directed at behavioural change for subverting the third wave.
•The available data indicate that every age group was affected in the second COVID-19 wave. The susceptible persons comprise those not protected by vaccination or those who are not infected yet. The proportion of susceptible people is higher in the younger age groups, including children. A higher risk of infection is not the same as a higher risk of serious illness, especially for children. However, even if there is a small proportion of complications and deaths, absolute numbers can strain the health system resulting in a shortage of beds. Higher mortality is not so specific to the virulence of the virus, or age group, but mostly arises from the shortage of beds during a sudden surge in cases.
•To reduce the number of deaths, we should immediately create adequate capacity to handle the surge. More paediatricICUs and specialist care are needed to handle a complex disorder, namely Multisystem Inflammatory Syndrome. Enhancing paediatric specialised beds and ICUs can help in managing meningitis and other diseases in the community. Many patients who have recovered from active COVID-19 infection are experiencing long-term residual effects of the disease both physically and mentally. It is necessary to address these issues in all hospitals through counselling at the time of discharge and by establishing post-COVID-19 care clinics and services. We need to make a realistic assessment of needs. Every effort should be made to strengthen the human resources and infrastructure in the rural, vulnerable and remote areas.
📰 The proportionality principle
Hamas endangers Israeli civilians by targeting them and endangers Gazan civilians by using them as human shields.
•Every war is tragic. Every civilian death is a world lost. Nevertheless, when legal discourse is applied to a war, legal terminology, concepts, and resulting conclusions should be accurately implemented. One common misconception concerns the term ‘proportionality’. Particularly, it is the argument that proportional use of force is a numbers game; that one only needs to compare the number of casualties on each side of the conflict in order to deduce which side used force disproportionately. From a legal standpoint, this notion is flawed. Had this been true, many NATO operations would have been guilty of being disproportionate and unlawful.
Principle of proportionality
•The principle of proportionality is defined as the obligation to refrain from “any attack which may be expected to cause incidental loss or injuries to civilians, or damage to civilian objects, which would be excessive in relation to the concrete and direct military advantage anticipated”. What does this mean in practice? At the outset, it may be useful to stress what ‘proportionality’ does not mean: clearly, it does not address casualties in a collective manner pertaining to the whole conflict, but rather, refers to particular attacks; it does not address only civilian casualties and damage, but also the intended military advantage; and it is not examined in hindsight, but before the attack takes place.
•The proportionality principle means that before every military strike, military commanders must assess two factors. First, they must examine the concrete and direct military advantage anticipated from an attack, when naturally, the neutralisation of some targets would have a higher advantage than others. In order to offer such advantage, the target must be a military target, such as a weapons depot. Importantly, a seemingly civilian object, used by the adversary for military purposes (for example, a residential building used to store weapons) may be considered a lawful target.
•Second, the commanders must assess, based on reasonably available information at the time of the attack, what the expected collateral damage would be. They must assess how many civilians, if any, will be present in the area of the planned attack. Then they must assess the extent of expected damage to civilian property, including indirect damage that is to be accounted for, such as infrastructure. Lastly, they must implement all feasible precautions to mitigate harm to civilians and civilian objects. If the assessment of the two factors leads to the conclusion that the expected damage to civilians or civilian objects is deemed excessive in relation to the anticipated military advantage, carrying out an attack would be unlawful.
•It follows that not every civilian death in armed conflict necessarily testifies to a breach of international law. This principle of proportionality is the way that the law, created by states, saw fit to balance the military needs of states, who fight to protect civilians, with humanitarian imperatives.
Wrongfully blamed
•How is the principle of proportionality affected when instead of protecting its civilians, Hamas intentionally conducts its military activity from within densely populated areas? How is Israel expected to protect its major cities from Hamas rockets, when these rockets are developed, built and launched from within Gazan civilian population? Hamas is committing a double war crime – endangering Israeli civilians by targeting them and endangering Gazan civilians by using them as human shields. What does international law require Israel, a law-abiding state, to do, when facing Hamas’ unlawful tactics?
•The law of armed conflict states that when civilian presence is used to shield military objectives from attacks, that presence does not grant the target immunity. When Hamas commits the double war crime of attacking Israeli children, schools and airports from within its own civilian population, the analysis of the situation would be distorted if its criminal behaviour is not taken into account.
•Despite Hamas’s blatant disregard for the law or its citizens’ well-being, Israel does everything feasible in order to prevent or at least minimise harm to the Palestinian civilian population, often at the cost of operational advantage. In doing so, Israel employs precautions that exceed the requirements of international law, as well as the practices commonly employed by advanced militaries of western states. Fighting an enemy that deliberately abuses the law of armed conflict raises grave challenges for Israeli soldiers. Nevertheless, Israeli commanders apply international law, including the principle of proportionality, in every military action.
•Why is Hamas using its own population as human shields? This brings us back to the misconception of the principle of proportionality, and the knee-jerk reaction that ignores the question, who put Gazan civilians in danger in the first place? In other words, Hamas pays no price for its war crimes and often it is Israel that is wrongfully blamed. This situation provides an incentive to Hamas to continue with its heinous practices.
