The laws of war — Gaza and Israel; Hamas and IDF

Tomorrow is the eighth anniversary of a horrible tragedy. On July 25, 2006 the Israeli Defence Forces targeted and repeatedly engaged the UN observation post in Khiam. The use of force on UN property and personnel resulted in the complete destruction of the observation post and the death of all four peacekeepers inside. Addenda: The soldiers killed were major Paeta Hess-von Kruedener, from Canada; major Hans-Peter Lang, from Austria; lieutenant senior grade Jarno Mäkinen, from Finland and major Du Zhaoyu, from China. Tomorrow I will visit the grave of my fallen brother-in-arms.

Destroyed UN base in Khiam, Lebanon. 2006. Source: Wikipedia.
Destroyed UN base in Khiam, Lebanon. 2006. Source: Wikipedia.

Today’s news, reporting that Israeli air strikes killed three UN Workers and hit a UNRWA shelter, are reminiscent of that day eight years ago. Therefore, from a deeply personal perspective, I find it necessary to broach this subject that seldom lends itself to a sane and calm debate.

Proportionality is a construct that easily becomes unclear

I’ve written about the laws of war in the case of the downed Malaysian Airlines flight MH17. My commentary on the situation in Gaza will be within this dispassionate framework. That said, it is evident that such an approach is inadequate, as the conflict revolves around a faltering peace process, a non-viable state and a struggle for freedom and security, both Israeli and Palestinian. When both sides talk about retaliation and retribution it might be tempting to follow the cue and concede inter arma enim silent leges. My fellow blogger Corporal Frisk, who keeps a keen eye on the conflict, commented on the outcries of genocide in the conflict using the principle of proportionality. Well worth a read.

Note: The above two links are on Israeli statements. They were chosen for the express purpose of showing that both parties engage in a highly inflammatory and non-constructive rhetoric. I chose to omit Hamas’ statements as they are very widely known to promise revenge and retaliation.

Distinction

The principle of distinction rules that the parties shall at all times be able to distinguish between civilians, civilian property and military targets and may only engage the latter.

In the case of Hamas the issue is clear-cut. Hamas deliberately targets civilians as a modus operandi, thus justifying the label of a terrorist organization. The definition of levee en masse, granting the right to armed resistance, can’t be applied as there are no large masses of Gazan Palestinians arming themselves in organized resistance against an occupying force.

In the case of Israel it’s evident that identifying and defining military targets is problematic in the densely populated and built-up area of the Gaza strip as Hamas terrorists routinely use the cover of civilians and civilian property and use civilian disguise. These the facts of the environment, that the IDF is obliged to handle, no matter how challenging they might be found. The Israeli definition of valid targets, on the other hand, is fundamentally problematic. I will address this further down.

Propotionality and necessity

Proportionality is easier to address. The IDF obviously accepts a very high risk of collateral damage in its strikes. It’s obvious that targeting a built-up area, albeit with precision strikes, comes with the inevitable loss of civilian life and property. The collateral damage caused by IDF strikes also indicate that risks aren’t properly addressed in the targeting process and in selection of strike systems, often leading to substantial damage to civilian property and loss of life.

The rationale for the necessity is mainly focused on targeting Hamas’ underground and surface network of tunnels, with corridors for movement, strongholds and rocket storages. Entrances to tunnels emerge in or near civilian property and the storages of weapons above ground are on civilian property.

Do these facts negate the protection of civilians and civilian property? Actually they don’t. The prerequisite of engaging targets in these cases are that a warning is given. The IDF has issued such warnings, where it has deemed it applicable, including requests for civilians to evacuate the areas targeted.

Assessment

As stated obliquely in the above chapters, the IDF is fighting a terrorist organization in a non-international armed conflict. These facts often create a legal obstace course hard to negotiate. However, the key issue doesn’t disappear — the responsibility to protect civilians is paramount notwithstanding the purpose of the use of force. Israel is a State party concerned with this regarding the use of force, as the Palestinian National Auhtority (i.e. State of Palestine) is not using military force.

The problems with distinction become apparent when regarding the definition of a combatant. The Israeli definition of valid targets is very broad:

Our definition is that anyone who is involved with terrorism within Hamas is a valid target. This ranges from the strictly military institutions and includes the political institutions that provide the logistical funding and human resources for the terrorist arm.

Benjamin Rutland, IDF spokesman to BBC in 2009

Such a broad definition of a enemy combatant actually makes civilians military targets by association. This is contrary to the purpose of the Geneva conventions. The definition of a combatant is someone who is ”directly engaged in hostilities.”

Commentary: It should be noted that Israel is not a signatory to the Additional Protocols of the Geneva conventions, but the Israeli High Court of Justice and the State of Israel in its submissions to HCJ have upheld that most articles apply as customary law on the conduct of IDF in operations in the occupied territories.

IDF is fighting a terrorist organization

Proportionality is a construct that easily becomes unclear, vague and general if applied outside the scope of the targeting process. Proportionality must be addressed case by case, e.g. the use of precision guided weapons does not per se constitute proportionality. There is no such thing as ”proportional warfare” in general, but only individual strikes that either are proportionate or disproportionate with regards to the loss of civilian life and property.The ridiculous metaphor on proportionality by New York City Mayor Michael Bloomberg perfeclty illustrates this common misconception and misuse of ”proportionality.”

I will also argue that necessity can’t be properly assessed, as the principle of necessity deals with actions designed to bring about the military defeat of the enemy. Conventional wisdom has it that engaging terrorists (ie. combatants) in a way that causes devastating collateral damage only increases the conversion of civilians to extremism and strengthens the terrorist support base.

If so, either a doctrine of total war should be pursued or the applicability of military force questioned and other mechnisms for promoting security considered. For half a century, this has been an object of constant debate in Israel featuring both doves and hawks and changes in policy. Today, the doves seem almost extinct.

Conclusions

The laws of war in this case only apply on Israeli use of force. The discretion of using force lies with the IDF. The IDF bears the responsibility of protecting civilians in the areas where force is used. This protection is realized by distinguishing targets and addressing proportionality in choice of systems used in engagements. The IDF definition of valid targets is vague and makes civilians terrorist by association, thus also brining a certain open-endedness to considering proportionality.

With regards to the killing of UN personnel described in the introduction, it is widely accepted that UN personnel should enjoy special protection from the use of force by the belligerent parties, yet it is important to note that Israel has not signed the Convention on the Safety of United Nations and Associated Personnel.

The conflict in Gaza brings about inhumane suffering. It is evident that the use of force won’t solve the crisis as it will further weaken the Palestinian National Authority and its ability to create and maintain a safe and secure environment. The international community, under the leadership of the United States, should take resolute measures to solve the key issue, the protection of civilian lives from the terrors of war.

10 reaktioner på ”The laws of war — Gaza and Israel; Hamas and IDF

  1. Dear A B,
    Please don’t shout(!) Like I said, Israel claims Rule of Law. Therefore it’s bound by the judgments of its own High Court of Justice. There can be no demands placed on terrorists, as they act outside the rule of any law. Such an argument is self-defeating and pointless.

    Your call for total war, as you stated it, would mean genocide. I find this abhorrent, as apparently does the State of Israel. I’m actually very impressed by the care shown in targeting by #IDF, though some individual cases show a lack of proportionality. Your comparison of friendly fire and collateral damage is misguided as the latter falls within the laws of war and the first one doesn’t. As said, the Israeli action falls within the right of self-defence. I reiterate: Hamas are terrorists, they’re the enemy, not Palestinians.

    Israeli scholars, media and citizens actively and calmly discuss the rationale and proportionality of #IDF and State actions, as should be in a democratic society. Why don’t we?
    //James

    Gilla

  2. James
    As long as Hamas has the guns and is ready, able and willing to kill anybody within the Palestinian society wanting to strip Hamas of its legitimacy nobody will try to do it! And it seems that the rest of the world are as unwilling to do it as are the Palestinians! Not even the Palestinian Authority has the needed fortitude to it, instead they chose to let this terrorist organization take part in the PA government.
    Targetting is not a precise science and civilians will be hit. IDF is already doing its utmost to minimize the number civilian casualties any more care will lead to a significant reduction in its combat efficiency and its ability to hit Hamas! Pin pricks will not stop Hamas or the Palestinians who support Hamas! Trying to tie IDF’s hands will benefit only Hamas, not the Palestinian people!
    Hitting non-combatants is a very unfortunate and tragic side effect of war, as are friendly fire incidents!
    The responsibility for all casualties in the Gaza strip and elsewhere lies solely on Hamas and its enablers! They are in no way, shape or form the responsibility of Israel! Hamas will stop only when anything that it can interpret as support ends and today, as I am writing this, the UN is throwing its weight behind Hamas! It is interesting to see how the onus of resolving the crisis is squarely placed on Israel! No demands are placed on the Palestinan Authority or Hamas or any other terrorist entity active against Israel! Hamas faces no sanctions whatsoever from the UN and never will, and the leadrship of Hamas knows it! Palestians are treated by the World community as children incapable of controlling their own actions! Israel is, on the other hand, supposed to suffer under the constant threat of terror!
    Wars end only when they are fought to the bitter end and the enemy totally crushed, like World War II! In war there is no or very littel high ground to lose. There is however lots of dead soldiers and civilians! Wars can be fought for noble ends but in the means, war, there is no nobility! Wars can’t be fought from the chambers of a court they have to fought on the front where the enemy is, in Gaza Hamas has chosen to put that front in the middle of civilians and it is there that the IDF has to fight it!

    Gilla

  3. Dear A B!
    Please don’t misunderstand or misrepresent what I’ve written. I’ve been clear: Hamas are terrorists. As for Israel, I’ve reiterated a ruling of the Israeli High Court Of Justice on the applicability of the provisions of the Geneva conventions of 1949, to which Israel is a ratified signatory; and the additional protocols, not signed by Israel, but of which certain provisions were found by the court to apply to IDF conduct in armed conflict. That, ie. rule of law, is the rationale that answers your question why Israel should abide by the laws of war. That is also the moral high ground.

    Concerning Hamas, it’s a self-defeating argument to demand that terrorists follow the laws of war. No such demands have been made by the Israel, the United States or any other actor, as all label Hamas terrorists, that per definition act outside the laws of war by deliberately targeting civilians. I quite agree with your statement on Hamas methodology in its terrorist campaign against Israel.

    I’m not demanding that Israel let go of its inherent right to self-defence. I’m questioning the proportionality of some individual strikes, underlining individual strikes(!), and of course, the applicability of military force as a means to defeating a terrorist enemy. As Israel states, its enemy is Hamas, not the Palestinians. Your view of war as the ultimate instrument of violence is in my opinion correct, but a ”win” in this campaign can only be achieved by applying the instrument in a way that Israel is correctly careful not to do.

    My point, that you can read between the lines if you care to, is that Israel is de facto fighting with one hand tied behind the back, thus the military goal of weakening Hamas is the maximum achievable end state, i.e. pushing the problem further and further. The solution to the crisis lies in stripping Hamas of any and all legitimacy within the Palestinian society and strengthening the Palestinian authority. This is a diplomatic, social and economic mission and it can’t be done overnight. The use of military force that causes grave collateral damage will only strengthen Hamas and lend it unwarranted support.

    The military campaign is in my opinion best described with the metaphor driving a screw with a hammer.

    //James

    Gilla

  4. Why should Israel adhere to the Geneva conventions when Hamas is not? War is ultimate violence and it can’t be fought with one tied behind ones back if one wants to win! Hamas is clearly using “all hands”, ie civilians as shields, in its fight with no restrictions whatsoever in its actions and targetting!
    You are in fact demanding that Israel forfeits its right to self defence because there will inevitably be some civilian casualities! If Israel accepted your proposition on not using violence when there is a possibility of civilian casualties it would be the end for Israel, which is the stated goal of Hamas! Some eighty years ago there was a political movement that threatened to exterminate jews and nobody took it seriously and six million jews were murdered! Today Israel takes very seriously anybody who demands the extermination of jews and acts to realize it!

    Gilla

  5. Thanks for the linking!
    I would like to briefly point out another angle which I feel seldom receives the attention it deserves, namely the two faces of Hamas. A host of nations, including the USA, EU, and notably the Arab states of Jordan and Egypt, lists Hamas a terrorist organization [1]. On the other hand, Hamas does constitute part of the (more or less) democratically elected Palestinian administration, and since this spring it also forms part of the unity government.
    To further complicate matters, the state of both the Gaza Strip and the West Bank as well as the Palestinian Authority are more or less unique. As currently no sovereign state claims either area, except for the Israeli annexation of parts of Jerusalem, they could be seen as Terra nullius, although in practice they are usually referred to as occupied by Israel (although Israel has unilaterally withdrawn from Gaza). This then indicates that there is a rightful owner (someone else than Israel), which then would be the Palestinian Authority. The status of the authority as a, for the lack of a better term, quasi-state raises its own problems. If the Palestinian Authority indeed was a state, being unable to stop its territory from being used as a staging ground for armed attacks against the civilians of a neighboring country would, in my understanding, count as a Casus belli for this kind of limited incursion that Israel is currently conducting. However, as noted in the post, the conflict in Gaza is not a war between states, as even if one was to hold the Palestinian Authority as a full-fledged state, it is not currently involved in an armed conflict with Israel (as the West Bank is quiet). Which brings us back to the fact that Hamas both is involved in an armed conflict with Israel and is part of this Authority, and as such operates in one of the many grey areas of international law that exists in this conflict.
    Hamas double status is also evident in the two cases were UNRWA reported that rockets had been found stored in their schools [2] & [3]. Naturally, the UNRWA does not have its own EOD-teams, so apparently it handed over the found rockets to the authorities, i.e. Hamas, who is also the main suspect for having stored the rockets there in the first place [4].
    //Corporal Frisk
    [1] http://en.wikipedia.org/wiki/Hamas#International_designation_of_Hamas
    [2] http://www.unrwa.org/newsroom/press-releases/unrwa-strongly-condemns-placement-rockets-school
    [3] http://www.unrwa.org/newsroom/press-releases/unrwa-condemns-placement-rockets-second-time-one-its-schools
    [4] http://www.haaretz.com/news/diplomacy-defense/1.606689

    Gilla

  6. Hi James,
    You made me think again
    . I do think that IDF takes its responssibility of saving israeli lives more seriously than, I am sorry to say, FDF. Thus I think IDF takes harder stance against outsider collateral damage than maybe other defence forces might take. This is evident in all IDF does from tank and APC design to overall conduct. Also I would like to poin out that proportional means in legalese that unless you can be said you out of propotion you are within it. In practise this would take place in nice courtroom in Hague, where losers will be procecuted for everybodys sins. I am sure you are as well or better versed in warcriminal justice as it is dished out to whoever lost and common opinion demands to be scapegoated.
    As to war goals for Hamas, I do not see them getting anything more out of this than a new class of recruits. They are after all terrorist that have no way out of the hole they dug themselves into. The real suffering is done by palestinian civvies. And this, as you pointed out will lead into another cycle of this insurrection. Even though this is not in the best interrest of israelis nor the palestinians.
    Nobody can help them. It is up to them to change the hamas regime to something more bening to them.
    So what am I really thinking is exitplan for the israelis and palestinians to ge a lasting peace in region. Smarter people have tried and failed, so maybe I’d better start painting house again.
    Ps. You are a family man, so I’m quite sure your wife will teach you how to be misunderrestood all the time. I know my have.
    Have a nice one!
    IsoT

    Gilla

  7. Dear IsoT,

    Thank you for your passionate reply. In keeping with my dispassionate stance on all issues military, I will not address ”Who is to blame?” The culpable parties are all apparent, IDF representing the State of Israel, the terrorist organization Hamas and the defunct Palestianian authorities.

    I feel a bit disappointed that you should confuse the mission of the IDF with the conduct of the IDF. The mission of IDF is of course to safeguard the State and the people. The objective fact that the safety or more basically – the right to life – of the Israeli people is threatened is jus ad bellum, i.e. the justification of starting this war. However, the conduct of the IDF in this war is governed by the laws of war, jus in bello. There is no context in which the collateral damage to Palestinians would be could be graded as more, or less, justifiable. I think you can easily imagine the anarchy that such an analogue extension of the justification for war to the conduct in war would bring about.

    I hate being misunderstood. The reason for this may of course be lacking clarity on my part, but I did not suggest that Hamas’ strategy or goal would be to growing new terrorists. I suggested this may be an outcome if the use of force is experienced as disproportionate by the people.

    With regards to your reference to targeted killings (assassination program), I invite you to read the Israeli High Court of Justice judgement ”HCJ 769/02” as it also clearly states that the laws on war and certain provisions in the Geneva Additional Protocols apply on IDF conduct as customary law even if not ratified by the State.

    Finally, from a passionate point of view, I find your comment very thoughtful and balanced. Thank you. Keep bloggin’!

    //James

    Gilla

  8. Right said James!
    I’d point out, that first and foremost IDF is responssible on keeping israelis safe. In that context it is not very important how many palestinians die collaterally. Hamas in an terrorist organization, palestinian authorities have not been able to quell hamas rocket firing, IDF is doing that. In this context blame for collateral damage lies, in my wiev, at the feet of hamas and by neglegience palestinian authorities.
    As you pointed out hamases only strategy and goal in this game is in growing a new class of terrorist to held them bolster their depleted ranks. Humane suffering is appaling in. Gaza and I feel thet IDF can justly be critizized for not having a viable exitplan from warfare in Gaza. After they pull out victorious, new terrorist will start taking over the rocketlaunching hobby. And cycle will start over. So maybe in long run it would be better to start indiscriminate assassinationprogram against hamas, to minimize collateral damage. But this would also lead to vicious cycle of its very own.
    But, as allways, exellent and thoughtprovoking piece.
    IsoT

    Gilla

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