Israel, Gaza and the Future of Humanitarian Law by Iain Guest
Israel’s tactics during the war in Gaza force us to ask whether humanitarian law has value in today’s “asymmetric” wars. It is a troubling and difficult question, the more so as the International Committee of the Red Cross is currently celebrating the 150th anniversary of the first Geneva Convention, on the protection of wounded soldiers.
Israel has long argued that by seeking to protect non-combatants, the Geneva Conventions also make it possible for fighters to hide among civilians. Faced by this, goes the argument, state armies like the Israeli Defense Forces (IDF) have no option but to bend the rules, even it means causing casualties among those who are not participating directly in the fight.
Israel has applied this doctrine with singular ferocity during the current war, bombing and shelling apartments, homes, mosques, power plants and even UN shelters. Hundreds of Palestinian women and children have been killed in the process.
This comes at a time when the very notion of humanitarianism is under siege. Recent months have seen starvation and chemical weapons used by the Syrian army, prisoners beheaded and executed by ISIS in Iraq, civilians blown up by the Taliban in Afghanistan, mass kidnapping by Boko Haram in Nigeria, and a Malaysian jetliner brought down in Ukraine. The protection of noncombatants in conflict has never seemed more difficult.
Yet it is, as always, a shock to see Israel acting with such force. Hamas, of course, has contributed to the carnage by placing rockets among Palestinian civilians, storing weapons in UN schools, and targeting Israelis without distinction. No one should underestimate the panic and insecurity this has caused in Israel. But one expects Hamas to exploit whatever advantages come its way. The weaker side in asymmetric wars rarely plays by the rules. As a party to the Geneva Conventions and a democratic state, Israel is held to a much higher standard.
The rules governing the protection of noncombatants in war (ius in bello) are laid out in the four Geneva Conventions that were developed between 1864 and 1949 and cover four separate categories: wounded soldiers; shipwrecked sailors; prisoners of war; and civilians. Two protocols were added during the 1970s, to expand the protection offered by the Conventions during international armed conflict (protocol 1) and internal armed conflicts (protocol 2). In the years since, tribunals and the International Criminal Court have provided teeth by prosecuting individuals for violations of the Conventions (war crimes).
Israel is not the only frustrated state party to argue that this body of law benefits militants and rebels. The argument was heard repeatedly during the drafting of Protocol 1, which categorized some wars of liberation as international armed conflicts. The Reagan Administration, for example, argued that this would provide POW status – and protection - to irregular fighters who do not wear uniforms or answer to a clear chain of command (the definition of a combatant in the third Convention). The same argument resurfaced after 9/11 during the controversy over detainees. In one of the so-called torture memos, Albert Gonzales, counsel to President Bush, famously described the Geneva Conventions as out of date and “quaint.” Although President Obama has reversed course on torture, the US has still to join the two protocols.
But Israel has come closest to turning the doubts into a doctrine. In a 2010 book, Moral Dilemmas of Modern War, Michael Gross, from the University of Haifa, argued that in asymmetric wars “many civilians look and act like combatants” and concluded that state armies are likely to lose these wars if they do not meet fire with fire.
The IDF has acted on the same assumption in three recent "asymmetric" wars - South Lebanon (2006), Gaza in 2009, and again during the current conflict. Even though Israeli bombs and shells have caused the Palestinian deaths, Israel maintains that Hamas was responsible because Hamas operated from civilian areas – which Israel compared to taking “human shields.” After being heavily criticized for shelling UN schools where civilians had taken refuge, the IDF observed that UNRWA had discovered Hamas mortars in three empty UN schools.The clear implication was that any civilian building with any connection to Hamas was fair game, however remote and whatever its function
One way to test Israel’s argument is through just war theory, which has provided the moral basis for much of the relevant international law and was invoked by President Obama after he received the 2009 Nobel Peace Prize. Self defense is certainly recognized as a just reason for taking up arms and is also permitted under article 51 of the UN Charter. The barrage of Hamas rocket attacks has been nothing if not “imminent.”
But the question for just war theorists is whether Israel’s pulverizing response has been “necessary.” This is hard to answer. Most of the rockets were intercepted by Iron Dome and appear to have caused very few casualties. Israel presumably could have sealed off the border and demolished the tunnels without attacking the civilian areas of Gaza. But the IDF’s real target has been Hamas fighters, and Israel would argue that they could not be eliminated without going into civilian areas. Whether the attacks that followed have been “necessary” from a military perspective is left to the IDF – and public opinion – to determine. This is hardly satisfactory.
Just war theory would also ask whether Israel’s response was “proportionate.” According to the Palestinian Ministry of Health, as of August 20, 2,016 Palestinians had died, including 541 children and 240 women. 67 Israelis had also died, of whom all but three were soldiers. The contrast is striking, but does not necessarily make the Israeli response “disproportionate.” For Article 57 of the First Additional Protocol, a proportional military action is one that is not “excessive in relation to the concrete and direct military advantage anticipated.”
The problem with this is that there is no objective way of deciding how many civilian deaths justify the killing of a militant. Occasionally, common sense will prevail, as in 2009 when German troops called in a NATO air strike in the Afghan province of Kunduz after the Taliban hijacked two petrol tankers. Over 100 civilians were burned to death. Shocked, the Germans paid out compensation to the families. But most arguments about proportionality end inconclusively, because the military will accept very high civilian casualties in their zeal to kill “terrorists” and “militants.” Over 300 Pakistani civilians were killed in a series of drone strikes, before a drone finally killed Baitullah Mehsud, a leader of the Pakistan Taliban in 2009. President Obama hailed Mehsud’s death as a major achievement in the war against terror.
Next, there is the question of who is a “civilian.” Article 51 of the First Additional Protocol states that anyone not taking a “direct part” in hostilities should be protected, but this has long been a source of debate. Some would say that anyone associated with an army is fair game, which would mean that even military chaplains and cooks are legitimate targets. Others would argue for a narrower approach in an effort to minimize the killing. The Goldstone report, commissioned after the 2009 war in Gaza, took Israel to task for killing 240 Palestinian policemen – one sixth of all Palestinian casualties. Goldstone described the Gaza police as a “civilian law enforcement agency.” But Israel responded that the police were paramilitary and supporting Hamas, and so deemed a legitimate target.
Between 2003 and 2008, the ICRC held a series of meetings to clarify this confusion. The final report concluded that “direct participation” in a conflict refers to a person’s engagement in “specific hostile acts” rather than “status, function, or affiliation.” Taken at face value, this would presumably extend protection to soldiers on leave and in mufti – or even a Hamas fighter who is unarmed and at home. The fact of being a woman or child is not relevant – a female suicide bomber, for example, is clearly a legitimate target. What matters is that someone is actively taking part in the fight. Most armies would find this extremely restrictive.
Fifth, there is the question of whether civilian infrastructure is a legitimate target. On July 29, Israeli air strikes destroyed Gaza’s only power plant, on the argument that it was supplying power to the Hamas military machine. In so doing, of course, Israel also deprived hard-pressed civilians of electricity and greatly complicated the task of reconstruction. Yet “dual use” facilities like power plants do pose a dilemma. NATO offered the same argument after destroying Kosovo’s telecommunications hub in the early stages of the aerial campaign against Serbia in 1999.
Finally, and most difficult, there is the question of intent. This bears directly on whether Israel’s actions constitute war crimes, and will no doubt be considered closely by the Schabas Commission, as it was by the Goldstone inquiry in 2009. Were the UN schools deliberately targeted by Israeli forces? If the answer is yes, Israel is guilty of war crimes. If no, the civilian deaths were collateral damage – regrettable, and even disproportionate, but not war crimes.
Under US law a felony murder occurs if someone is killed during an act of felony, even if the death is unintended. But international law shrinks from such moral clarity. In this, it can draw on another Christian doctrine, known as “double effect.” This doctrine was part of the rationale developed by Christian thinkers from Saint Augustine onwards to justify taking up arms. It says, in essence, that you can target an enemy even if civilians are likely to die in the process, as long as their deaths are not intended. Deaths can be predicted, but they must not be intended.
This has become a license to kill. Think Afghanistan, where NATO strikes have repeatedly bombed social gatherings in an attempt to kill Taliban. These attacks happened with such regularity and predictability that the resulting civilian deaths began to look - if not deliberate - then criminally negligent. But the doctrine of double effect asks for no such precision and allows the broadest possible interpretation of “intent.” As such it provides a handy excuse for virtually any civilian collateral damage – one of the major concerns about the use of drones in the “war against terror.”
NATO commanders have attempted to deal with the controversy over NATO attacks in Afghanistan pragmatically, rather than legally. Aware that civilian deaths were threatening the NATO mission and poisoning relations with the Afghan government, General Stanley McChrystal introduced new rules of engagement in 2009 that limited ground strikes to situations where NATO troops were directly threatened. These new rules elicited protests from group troops and were relaxed by McChrystal’s successor, David Petraeus the following year. The botched air strikes continued, casting a stain on NATO’s reputation and playing into the hands of the Taliban.
What conclusion can be drawn from this review? First that the rules for protecting civilians in today’s wars are dangerously, painfully ambiguous - and as such easily ignored by a determined fighting force. Enforcement is equally weak because it is left to individual governments, which rarely prosecute their own soldiers with any vigor. Internationally, the International Criminal Court has little to contribute because many key governments, including Israel, have not ratified. Reciprocity – the fear that one’s opponent might retaliate in kind – rarely applies in an asymmetric war, where the weaker side is fighting to the death and using brutality as a weapon of war. Prisoner exchanges might be the one exception.
Yet the fragility of humanitarian law also exposes the dilemma facing state armies like the IDF in an asymmetric war. Governments have much more to lose than Hamas or ISIS if the laws of war are completely discredited. This may be the most compelling argument for restraint, and it is on this that most would fault Israel. By exploiting every possible ambiguity in an effort to force Gaza into submission, Israel has exposed humanitarian law at a time when international protection has never looked more difficult.
This no doubt accounts for the furious response to Israel’s tactics from the mild-mannered UN Secretary-General Ban Ki Moon, who described the third Israeli school attack, on August 3, as a “moral outrage and a criminal attack.” It also accounted for the remarkable image of the UN spokesman in Gaza, Christopher Gunness, breaking down in tears. Mr Gunness might as well have been asking: “If Israel is not going to play by the rules, then who will?” Human rights advocates asked much the same question about the US following the Abu Ghraib scandal and the disclosure that the US has used torture against detainees.
Israel has also done a disservice to the laws of war by blaming Hamas for the civilian casualties caused by the IDF in Gaza. This calls into question the cardinal principle that individuals are responsible for their actions in war. Responsibility for the deaths in Gaza lies with the soldiers and pilots who dropped the bombs and those who gave the orders - not with Hamas. While Hamas has clearly operated among civilians, there is no evidence that Hamas has forced civilians into the line of fire, which is the definition of using human shields.
The question of whether Israel has crossed the line has been answered in different ways on both sides of the Atlantic. Apart from a rare rebuke from the Obama administration after the August 3rd school shelling in Rafah, US commentators have been remarkably unconcerned. The pugnacious Thomas Friedman put it like this: “Hamas used Gaza’s civilians as war-crimes bait. And Israel did whatever was necessary to prove to Hamas, “You will not outcrazy us out of this region.” It was all ugly. This is not Scandinavia.” David Ignatius, writing in the Washington Post, took John Kerry to task for trying to halt the bloodshed at a time when the bombs were raining down. American politicians, including Michael Bloomberg and Andrew Cuomo, visited Israel to show solidarity.
Public opinion in Europe has been less forgiving. It is not just that Europeans understand the threat that Israeli tactics pose to humanitarian principles, but that Europe has little tolerance for Israel’s overall policy of occupation. Europeans view Israeli settlements as a major breach of article 49 of the 4th Geneva Convention, which forbids an occupying power from transferring citizens onto the occupied land. Israel responds that the West Bank was not legitimately governed before 1967 and is thus not occupied – another sophistry that many feel weakens the Conventions. And while Europeans have no love for Hamas, they also feel that Israel’s uncompromising approach to Hamas is calculated to produce rage and preclude moderation.
This debate will now no doubt be played out in the worst possible context – a deeply polarizing UN inquiry into war crimes. The UN Human Rights Council has set up a commission of inquiry under the Canadian lawyer, William Schabas, and everything points to a replay of the 2009 Goldstone report. Critics of Israel in the UN will use the Schabas inquiry to demand a comprehensive indictment of Israel. Israel will denounce the inquiry as yet another example of UN double standards.
In fact, the inquiry should probably be seen as the exact reverse – a last-ditch attempt to defend international humanitarian law. If Israel is sincere in believing that the Geneva Conventions are in need of revision, it should make this case before the international community, and not force the issue unilaterally in Gaza. Instead of barring the Schabas commission, withholding cooperation, and excoriating Mr Schabas, Israel should seize the initiative, welcome the debate, and take whatever punches come its way. That way, something might be salvaged from the Gaza catastrophe. Other contemporary challenges in Syria, Iraq, Ukraine and Africa might just seem a little less daunting.
Some Israelis understand this. In a short but important recent commentary, the human rights group B’Tselem issued a withering denunciation of Israel’s tactics: “Hamas is not – and cannot be – responsible for the extreme damage that Israel caused civilians in Gaza. Holding Hamas responsible for Israel's actions is tantamount to freeing Israel of any restrictions in its response, no matter how horrendous, to violations of the law by Hamas. This position is unjustifiable, either morally or legally: the responsibility for the harsh consequences of Israel's policy in the last month lies with Israel's government and top military commanders who authorized it, despite the foreseeable horrific results.”
The clear moral thinking of B’Tselem and other Israeli human rights organizations has been one of the few redeeming features of the never-ending conflict between Israel and the Palestinians. Let us hope that others can follow their lead in the weeks to come.
Iain Guest worked for the UN humanitarian missions in Cambodia and Haiti. He is currently Executive Director of The Advocacy Project and an adjunct professor at Georgetown's School of Foreign Service.