“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. “
Article 51 of the Charter of the United Nations
The July 2014 Gaza conflict finally separated the moral wheat from the anti-semitic chaff.
Scenes of unbelievable vitriol directed against Jews exploded in many cities. In Belgium, a café owner welcomed dogs but refused Jews entry. In Morocco, a rabbi was beaten up because he was a Jew. In Sweden, a man displaying an Israeli flag had his windows smashed. In Paris, a mob of Muslim supporters barricaded Jews in their synagogue while trying to break down the entrance gate to get at them. All in the name of a “free “Palestine”…..
Whereas all these centres of demonstrated anti-semitic hate were quiet when Hamas rained down rockets on civilian centres in Israel, people with barely concealed hate for Jews went into paroxysms of anti-semitic speech and actions as Israel began to defend herself.
As in 2008-09 and in 2012, the chorus of anti-semities masquerading as anti-zionists chanted in unison about Israeli war crimes against “Palestinian” civilians and how the Israeli response was disproportionate. In England, while Sayeeda Warsi resigned her position in Parliament in protest against what she considered a soft British stand against a disproportionate Israeli response in Gaza, in Turkey, Erdogan declared that what the Jews were doing in Gaza was worse than the atrocities carried out by Hitler.
It would appear that almost everybody seemed to have ideas and suggestions as to how to augment the humanitarian component in the law of international armed conflict. This is all great stuff and thoroughly commendable. However, it is important to keep in mind the thought that wars are actually fought to be won. In war, people die.
Just wanting to see zero-casualty warfare is a contradiction in terms, no matter how many UN bodies and/or NGOs would like to say differently. War, almost by definition, entails human losses, suffering and pain. As long as it is waged, humanitarian considerations cannot be the sole legal arbiters of the conduct of hostilities.
This is not to be taken as an apology for war. Rather it is to be taken as a basis for examining the conduct of parties in armed conflict, where that basis and framework in law is applied equally to both sides.
In the case of Gaza 2014, the overt support provided Hamas by the media cover up of the activities of this terror group, is slowly beginning to unravel.
For the fools’ chorus banging on about Israeli war crimes and Israeli crimes against humanity, information is now getting out from Gazan journos free of retribution from Hamas, on just how cynical the terror group has been in manipulating the media and the jaundiced classes.
Two days ago, NDTV from India, visually documented a Hamas rocket set up and launch from a teeming civilian centre, metres from their hotel.
France 24’s Gallagher Fenwick live TV coverage from Gaza had to take an unscheduled break during a live cross to Paris as a rocket was fired overhead from just behind him. The next day he re-visits the site to show a wider angle shot of the launch site metres away from a 7 storey building flying the UN flag…..
Reporter Peter Stefanovic, of Australia’s own Nine Network’s news, stationed in Gaza, received a surge of abuse and threats when he tweeted that he had seen rockets fired into Israel from near his hotel, in a civilian area.
The Wall Street Journal’s reporter Nick Casey fell foul of Hamas by reporting that Shifa hospital was Hamas’s control centre.
French-Palestinian journalist Radjaa Abu Dagga wrote that he was forcibly blocked from leaving Gaza and detained and interrogated by members of Hamas’s al-Qassam Brigade at a room in Shifa hospital next to the emergency room.
A Finnish TV reporter who did not feel safe to give her name on TV for fear of repercussion verified that Hamas was indeed launching rockets from the car park of the al-Shifa hospital.
And, of course, Italian reporter Gabriele Barbati (now) famously tweeted: “Out of #Gaza far from #Hamas retaliation: misfired (Hamas) rocket killed children today in Shati. Witness: militants rushed and cleared debris.”
All this may help explain the PA’s new-found reluctance to pursue action against Israel in the ICC despite the urging of “Palestinian” “chief negotiator” Saeb Erekat and HRW chief, Kenneth Roth.
It could also be a result of a bleak warning by Shurat HaDin that in doing so, the “unity” government would itself face a “…tsunami of charges for human rights violations and war crimes…” if it cared to go down that path.
But rhetoric and threat aside, what is Israel’s position legally when it comes to possibly being arraigned for war crimes over use of disproportionate force against Hamas in Gaza?
The short answer is, it’s pretty good.
The law of international armed conflict (LOIAC ) can and does forbid some modes of behaviour, with a view to minimizing the losses, the suffering and the pain. But it can do so only when there are realistic alternatives to achieving the military goal of victory in war.
Not many would realistically refute the suggestion that, from the Hamas coup in 2007 to June 2014, Hamas rockets at civilian concentrations were ongoing provocation of the highest order. That much is clear.
Thus, in interpreting the law of international armed conflict, Israel’s efforts to avoid war were numerous and ongoing. In the end, on paper, Israel went to war because there were no longer any realistic alternatives to achieving safety for its citizens apart from a determined military response.
But what of the charge of disproportionate response?
In this case, people not sympathetic to the Israeli cause happily conflate some ideas, or outright make up others which complement their preferred narrative. It is true that many more Gazans (but not armed males??!!) than Israelis died in the conflict so far. Each Israeli death is unbearably painful, and the loss is lasting.
However, the doctrine of proportionality in international law is not about equality of death or civilian suffering, or even about [equality of] firepower.
Recently retired Chief Prosecutor, International Criminal Court, Luis Moreno-Ocampo, defined it thus:
“Under international humanitarian law and the Rome Statute, the death of civilians during an armed conflict, no matter how grave and regrettable does not constitute a war crime…. even when it is known that some civilian deaths or injuries will occur.
A crime occurs if there is an intentional attack directed against civilians (principle of distinction) or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality).”
In this he is backed up by Professor Horst Fischer, Academic Director of the Institute for International Law of Peace and Armed Conflict in Germany who adds that:
“… attacks are prohibited if they cause incidental loss of civilian life, injury to civilians, or damage to civilian objects that is excessive in relation to the anticipated concrete and direct military advantage of the attack. This creates a permanent obligation for military commanders to consider the results of the attack compared to the advantage anticipated.” (emphasis mine)
The Council on Foreign Relations notes that according to the doctrine of proportionality, “…a state is legally allowed to unilaterally defend itself …provided the response is proportional to the injury suffered. The response must also be immediate and necessary, refrain from targeting civilians, and require only enough force to reinstate the status quo ante.
Today, Israel has quickly reinstated the status quo ante to the extent that it has pulled out of Gaza once it destroyed the terror tunnels and severely incapacitated Hamas’ long range rocket launching capabilities. It has redeployed to the territorial border prior to the ground offensive and it has taken up defensive positions along the eastern border as a possible ceasefire is hammered out.
Its response to the rain of rockets was immediate and a necessary defensive measure in order to fulfill its obligations to its own citizens.
And unambiguously, Israel’s use of telephone calls and mass leaflet drops to civilians in combat areas to evacuate because of impending attack, its creation and use of the technique of the “roof knock” to warn civilians away from targeted military assets on the ground, and its ongoing demonstrated commitment to aborting attack missions after finding civilians used as human shields on rooftops, all stand up to any legal scrutiny in the ICC.
The same cannot be said of Hamas, nor does it exonerate the supportive actions of the PA in Ramallah who are part of the “unity government”.
In sum, proportionality weighs the military necessity of an action against the suffering that the action might cause to enemy civilians in the vicinity.
Israel has coordinated its documented air and artillery strikes with legal advice prior to each attack in accordance with the spirit and letter of international law and common understandings.
It will be difficult/impossible to prove otherwise in court.
And it will be difficult for Hamas/PA to deflect charges of gross misconduct and war crimes, by that same token.
By any reasonable definition/interpretation of international law, Israel remains legally within its rights in its adherence to principles central to jus ad bellum of right authority, right intention, reasonable hope, proportionality, and last resort.
NB I would add that with regards to the principle of “distinction”, where it is incumbent on belligerents to distinguish between combatants and civilians, Article 8(2)(b)(i) of the Rome Statute of the International Criminal Court which prohibits attack directed against civilians may not necessarily be proved against Israel in the tragedy of the boys on the beach in Gaza, as it is difficult to ascribe intention; and particularly in light of the fact that Israel has more than amply consistently demonstrated, throughout the conflict, intent to avoid civilian casualties by all available means.