Last weekend saw a significant upsurge in violence between Israel and the Hamas run Gaza Strip. Sadly, since the 2008 Gaza War, also known as Operation Cast Lead, a significant conflagration seems to be a regular occurrence as the sides jostle for demands and attempt to either change the status quo by launching rockets into Israel or attempt terror attacks, or reinstall deterrence by targeted assassinations, air strikes and sometimes even ground incursions. 2014’s Operation Protective Edge was the last major conflict between Israel and the Gaza Strip. However, over the past year there has been significant violence marked by regular violent protests by the border.
Just like previous conflicts involving Israel, last weekend’s wave of violence highlights how international politicians, activists and commentators criticise Israel for using “disproportionate force” or warn Israel against doing so. For example, while the EU rightly condemned Palestinian rocket fire, calling for it to “stop immediately”, it also called on Israel to act with “restraint” and “proportionality”.
Restraint and proportionality are terminologies that seem to be used every time Israel is engaged in asymmetrical warfare. But what is a restrained response when hundreds of rockets are fired into civilian areas causing deaths, casualties and disruption, a war crime if ever there was one? What is a proportioned response? An explanation of what is a proportionate or disproportionate use of force is needed.
In cases where there have been a disproportionate number of Palestinian civilian casualties than those of Israel’s, often what is being noted is the number of Israelis wounded or killed by Palestinian rocket fire is few than Palestinian casualties resulting from Israeli retaliation. In other words, critics of Israel’s actions are noting that there is a disparity in the number of civilian casualties. The logic of the argument by those who claim that Israel’s use of force is disproportionate in this sense is that Israel’s operations are illegitimate because they cause mass Palestinian suffering and civilian deaths, so much so that Israel’s comparatively smaller death toll does not warrant such a large response or perhaps even one at all.
Although an understandable sentiment, it is a flawed argument. First, if risks letting Hamas and Palestinian Islamic Jihad (PIJ) actions go unpunished. It is one thing to demand rocket fire end, but without a significant military response (I will discuss what is a proportionate response later) these are just empty words. Second, such arguments ignore the fact that the intension of Hamas and PIJ is to inflict the maximum number of Israeli casualties.
PIJ and Hamas rocket fire is also designed to disrupt Israel’s economy and to hurt the viability of Israel’s southern towns and neighbourhoods. Schools were obliged to close and 30 per cent of Israel’s residents in the south temporarily left their homes and stayed elsewhere. Hamas threatened to attack Tel Aviv during the Eurovision Song Contest and PIJ threatened to hit Israel’s nuclear facility in Dimona. Don't forget that in 2014, Hamas targeted Ben-Gurion Airport, leaving passengers stranded for several days (I was one of them) and several airliners temporarily ceased flying to Israel. Therefore, a proportionate or restrained response to such a threat cannot be calculated by comparing civilian deaths, regardless about how tragic each one truly is.
When one thinks about what is proportionate or disproportionate, one needs to think in terms of military strategy, rather than simply highlighting the body count. We can illustrate this through analogy inspired by some of the stipulations contained within the Geneva Convention.
Let us imagine, for example, that in order to win a battle an army needs to destroy a railroad belonging to the nation of another army or militant group. It would make sense that destroying the rail track at key points would be a proportionate tactic. But what if this rail juncture could be repaired within hours, minutes even? It would therefore follow that not only would rail lines have to be destroyed but so would the train terminal and station. One may object and argue that this is not necessarily proportionate force because the civilian infrastructure of another country would be affected. However, one could counter that it would indeed be proportionate because alternative actions would be ineffective, even more so if this particular attack was considered vital for the success of the operation and the security of the citizens the attacking army is tasked to ultimately protect.
But what if the rail track and train station in question runs through a densely populated town or village full of non-combatants? This is when the question of proportionate force becomes tricky. In order to assess whether bombing rail targets in such a scenario additional factors need to be considered such as the choice of which munitions should be used to destroy targets while limiting civilian damage, warnings to non-combatants, the quality of intelligence, and, just as importantly, calculations over the consequences of not attacking the targets, especially if the opposing force were seeking to use rail infrastructure to launch their own attacks.
Now back to Israel-Gaza. Re-read the above few paragraphs and instead of railway, think of tunnels or rocket launching sites and the types of places where rockets are stored (mosques, the Turkish state-run Anadolu Agency, if not in schools and hospitals then areas very close to them). Now ask yourself, are the Israeli operations proportionate? Regardless of your answer, it should be understood that the question of proportionality in war, especially asymmetrical warfare is highly complex and goes beyond body counts and casualty numbers.
A few days ago, I was approached by a journalist who wanted me to comment on recent violence in Israel, specifically the killing of 60 Palestinians along Israel’s border with the Gaza Strip on Monday 14 May. This was latest in a series of protests organised by the Strip’s Hamas rulers which intensified after the US officially opened its embassy in Jerusalem. The journalist was especially interested how this relates to international law and the question of proportionality. I decided not to comment because I did not want my views on this complicated and intricate subject to be reduced to a half sentence. Nevertheless, I have an opinion which I would like to share.
I get very suspicious when “experts” or politicians refer to international law without mentioning specific articles or conventions. Even when they are specific, sometimes the treaties and articles they refer to do not make a clear-cut case against Israeli actions in this instance.
For example, the 1966 International Covenant on Civil and Political Rights stipulates, among many other things, that individuals have the right to life and not be arbitrarily killed (Article 6). I mention this because in one article I read the “expert” refers to this treaty. However, leaving aside the possible counter that the deaths of the protesters in Gaza on Monday may not have been arbitrary, the context of Article 6 is also not necessarily relevant to the recent events because the broader context of the article is the death penalty within a society rather than loss of life during battle or conflict.
Another treaty which is often referred to when discussing alleged Israeli violations of international law is the Fourth Geneva Convention. But much of this document is about the responsibilities of an occupying power. This is more relevant to Israeli settlement policy than recent events in the Gaza Strip. To make it relevant to the Gaza protests, one has to first posit that Israel is the occupying power of Gaza, which is debateable and even doubtful since its withdrawal in 2005. If, for the sake of argument, we grant that Israel is the occupying power, it is still unclear under which article Israel is supposedly in violation in relation to Monday’s events. It would appear Article 147 which considers “wilful killing” a breach of the treaty. This is one of the documents that Amnesty International was assumedly referring to when it condemned the Israeli use of excessive force and “wilful killing”. However, Article 147 is not about protests, demonstrations or attempts to breach border security, but rather the detention and trial of prisoners of war or those accused of criminal offences in wartime.
The other treaty Amnesty International could have been referring to was the Rome Statute of the International Criminal Court. The Rome Statute describes what constitutes a crime against humanity, which, among other important things, includes an action which is “part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack” including the use of “murder” and “extermination” to name but a few of the horrific acts described in the treaty (article 7). In addition, Article 8 of the same statute is concerned with war crimes and states that “wilful killing” constitutes such an offence, and, in a follow on passage, namely Article 2b, this includes “Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities” as well as “Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life… which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated”.
Aha, there we have it! Now let’s take a look and see if Israel is in breach of this piece of international law.
60 Palestinians were killed during the most recent protests on 14 May. If, having examined the facts, it emerges that these protesters were entirely peaceful and sought to stage a non-violent protest by the border, under the terms of the Rome Statute, Israel would have committed a violation of international law.
However, one may counter, didn’t Israel drop leaflets warning protesters not to approach the border area? Wasn’t this corroborated by news reports which can verify this was the case? And there was also the precedent of previous incidents by the border. In other words, surely the Palestinian protesters knew that they were risking their lives by approaching the border? Sure, but it still remains the case that if the intension of the protesters was fully peaceful, Israel’s actions would to be both disproportionate and in breach of the Rome Statute.
But what if Israel’s claims that some Palestinians, including many of those who were fatally shot, were indeed trying to sabotage the fence prove to be true? In such a case, when the potential sovereignty of a state is at risk, it is reasonable to expect that force will be used. Nevertheless, 60 deaths still appears excessive, especially if other measures could have been used. Israel still has some serious answering to do and may still be in breach of the Rome Statute.
However, Israel not only claims that Hamas militants were trying to breach the fence, but Hamas operatives were also making an attempt to enter Israel to attack Israeli civilians. If this turns out to be the case, Israel, I think, would undoubtable be in its right to use lethal force. Those attempting to breach the border would also now be deemed combatants - a Hamas leader recently stated that the majority of those killed were members of Hamas. In this context, it would be difficult to state that Israel was acting disproportionately to the threat, and making the case that Israel violated the Rome Statute would be a stretch.
Whether or not Israel is in violation of international law does not absolve Hamas for its use of civilian protesters as human shields. This is a factor that must be considered regardless of whether Hamas was trying to breach the border to murder Israelis or just using protesters for PR purposes. They were still fully aware that civilians were being put in harm’s way. The use of human shield is a violation of Article 8 of the Rome Statute as well as Article 23 of the Third Geneva Convention and article 28 of the Fourth Geneva Convention. Let us also not forget that children were brought to a protest where violence and death are the norm and that there were cases of gruesome Hamas incitement to violence ahead of the demonstrations.
As you can tell from this entry, international law and the Israel-Gaza conflict is neither simple nor clear-cut. When you hear people talk about violations of international law, know that the reality may be a lot more complicated and unclear.
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