Israel, Gaza & International Law
There is a critical omission in the discussion of Israeli actions in Gaza on FDL so far. If one were to concede every Israeli charge leveled at Hamas, Israeli actions would still be violations of the laws of war, specifically the requirement for proportionate response and the prohibition against collective punishment. The legality, but not the morality, of the situation is made more complicated by Israel’s refusal to sign many agreements on international law and the United States’ success in denying Palestinian access to International Tribunals.
Allow me to be clear. I accept the right of an Israeli state to exist behind secure and defensible borders. I support an American obligation to the security of those borders. And I understand the need for exchanges of territory to make the borders more easily defensible. I do not accept any right of Israel to annex the West Bank or a significant portion of the West Bank.
The Israeli government claims its response is made necessary by Hamas’ tactic of locating missile launchers and weapons caches next to residential housing, schools and hospitals. The law of proportionality requires that “the harm caused to civilians and civilian property be proportional and not excessive in relation to the concrete and direct military advantage anticipated by an attack on a military objective.” The standard changes not at all depending on whether the civilians are active supporters of Hamas or forced to remain in place at gunpoint. If anything, the more valid Israeli claims that Palestinians are forbidden to leave, the greater the obligation not to target them. The U.N. and even the U.S. State Department consider Gaza to be territory occupied by Israel. Israel has an obligation to defend civilians in occupied territory. The claim that Israel’s obligation ended when it pulled settlers and ground forces out of Gaza was rejected.
Whatever Hamas’ intentions, their rockets aren’t killing Israelis. We regularly hear the false dichotomy that Israel’s choices are limited to it’s current course or something even more lethal to civilians and ignoring the rocket attacks. In fact the ineffectiveness of Hamas’ attacks and the preponderance of Israeli power give the Israelis a wide range of lesser options. What woud happen if Israel limited its responses to precision strikes where civilians would be largely spared? Possibly a few more missiles would be intercepted by the Iron Dome or fall harmlessly into the desert. This is not a great price to save the lives of well over a thousand Palestinian civilians.
This brings us to the crime of collective punishment, which occurs when violence is directed at non-combatants in order to alter the behavior of combatants. The Israelis claim that they are forced to fire into civilian areas because Hamas hides in civilian areas. But the Israeli attacks have virtually no military value. The attacks seems to be guided by no coherent military strategy. When you get past charges that Hamas uses human shields you hear claims that the people of Gaza will pay a terrible price for the rocket attacks. That’s collective punishment. Moreover, the Israeli attacks do not appear to be structured in a way that maximizes the effect on combatants. When automatic rifle fire is heard or a mortar is fired from an area near a shelter, the most effective response is to direct a precision attack on the precise spot. Israel has the ability to strike with precision weapons anywhere in Gaza in under a minute. What is the military value of firing a series of 155 mm artillery shells from 15 to 25 miles away that may land within 50 yards of the supposed target.
Finally, there is no doubt that these laws of war have been violated by the United States and many others. (Laws against murder and rape are frequently violated.) The amazing thing, particularly in situations where power is highly asymmetrical, is how often they are upheld. If the British had adopted the Israeli strategy against Irgun and the Stern gang, there would perhaps be no Israel today. They treated these people they considered terrorists as criminals and tracked them down.