“It is very very scary…you never know where they will send the rockets, where they will attack. Each day I feel as though they will attack my house”. Asmaa Alghoul – Gaza.
International Humanitarian Law (IHL) is the very basic standard used to govern armed conflicts. They are a set of rules which seek to protect those not participating in the conflict. Both Hamas and Israel have violated these basic standards in the recent up-surge in fighting. Everyone concerned needs to be condemning this – not taking sides.
The recent civilian death toll in Gaza has, once again, spiralled. At the time of writing at least 158 have died. The UN estimates, at least 103 were civilians.
Right from the start of the latest bout of violence, human rights groups have started to collect the evidence they need to illustrate that both Hamas and Israel have undertaken ‘indiscriminate’ attacks.
While IHL allows for civilian casualties, it leaves a duty on warring parties to show they have made a distinction between combatants and civilians. Israel has been accused of failing to do this on a number occasions.
By these same standards, Hamas’ rocket attacks are, almost by definition, violations of IHL. If the targets fired at by Hamas are civilian then they are clearly violating the principle of ‘civilian immunity’ – a basic tenant of IHL. Regardless though of the chosen target, the indiscriminate nature of Hamas’ arsenal means that they consistently fail the distinction test inherent within IHL.
This is not to say it is balanced war between two equal parties – it is clearly not in terms of military capability or geo-politics. Gaza’s borders are closed and so Hamas use any arsenal they can get their hands on while Israel has one of the best funded and high tech militaries in the world.
It is however to say that parties from both sides have violated the most basic standards set out to govern armed conflict and that this should be condemned.
Sadly though, this lack of regard for IHL and civilian life is nothing new – for either side. The Israeli Defence Force (IDF) has a history of failing to meet the very basic standards laid down in IHL. In 2006, the IDF’s use of cluster bombs in Lebanon or their 2009 use of white phosphorus during operation Cast Lead, failed to meet the basic standard of distinction required by IHL.
In the latest up-surge of violence, Israel has insisted that it is only using ‘targeted’ strikes. Sadly we know now this is not to be the case. These ‘targeted’ strikes include the homes of Hamas officials, which are also the homes of civilians – thus they have failed to distinguish between combatant and civilian. A combatant’s home which is inhabited by civilians is not a ‘military target’ – it’s a civilian’s home!
There have also been examples of Israel targeting civilian targets. On the 19th and 20th November Israel bombed a media centre that killed two journalists (who are considered under IHL to be civilian). Thus, targeting of this media centre was a violation of the civilian immunity principle within IHL. Intentionally targeting journalists can be a war crime.
In addition to all of this there are examples of what Israel refers to as ‘mistakes’. For example the deaths of 10 members of the al-Dalou family when they struck the wrong house due to ‘bad intelligence’.
Of course, Hamas also has a dark history when held up to the scrutinizing light of IHL. The use of suicide bombers for example is a clear violation of IHL not to mention morally repugnant.
In the latest up-surge of violence, the on-going use of rocket attacks, as stated before, is a clear violation of IHL. Hamas shows no willing to acknowledge this. Already we have seen the impact that this can have; three Israelis were killed by a rocket attack on the 15th November.
IHL is not a nice set of laws – by its definition it allows for fighting and killing. It allows for example for Palestinians to resist the military occupation that they under (although this is one of the protocols that Israel has refused to sign).
Instead however of condemning those parties who fail to meet these crass basic standards. Too often people feel they need to take sides as the injustice of these attacks shines through. On one side you have Israel’s supporters who paint the government’s actions as ‘self-defence’ against an on-going terrorist attacks. On the other you have Palestinian supporters who paint Palestinians an oppressed people being forced into a basic form of self-defence.
Any objective mind can see that there is element of truth in both of these statements.
As I said before though, this is not say it is a balanced conflict against two equal sides. Indeed, these violations of IHL can only be analytically understood in the context of 45 years of military occupation and the regional hostilities.
The answer? I have no idea – if I did I wouldn’t be writing this, I would be picking up my Nobel Peace Prize. All that I am arguing here is that IHL provides a much better starting point to approach the conflict than partisan side taking.
For more on how IHL affects the Gaza/Israel conflict see http://www.hrw.org/news/2012/11/20/q-hostilities-between-israel-and-hamas
Hynd's Blog 
Interesting analysis Steve – and I think it is most helpful to start from basic humanitarian law.
I am not sure I agree with you Steve that Israel’s targetting of the homes of Hamas offficials breaches humanitarian principles ONLY because it is a civilian home (with children and other family members). Are elected Hamas officials a legitimate miitary target (and yes, Hamas officials are elected)?
David Cameron is Commander in Chief of the British Forces (or is the Queen?) – whichever it is – are they legitimate military targets? Are their homes legitimate targets? I don’t think so.
Steve you are absolutely right to say that both sides have violated humanitarian law – and that needs to be condemned (and prosecuted). But I think it is also important to look at the numbers (as I believe humanitarian law also considers proportionality in targetting in relation to the overall military objective – am I righ here?). Israel killed an estimated 103 civilians. How many did Hamas kill – 3? All deaths are to be condemed and mourned – every life is priceless – but 103 is quite a lot bigger than 3.
Martin
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Steve – I feel you are doing what people often say I do – splitting the difference, seeing the two sides as pretty much absolutely equally bad/good. I’m not sure, even based on the facts you state here, that seems the right approach in this situation. Hamas’s attacks are completely indiscriminate – if anything worse, if it is true that they try to target schools at times children will be vulnerable. Israel’s attacks did not appear to be (by and large) indiscriminate. The point about power imbalance could be said to work in Israel’s favour as it is clearly not doing as much harm as it *could* do.
This is really interesting, on the rules of war.
http://www.bbc.co.uk/news/world-middle-east-20415886
I haven’t reread it but I think it might cover your scenario of targeting combatants where civilians are likely to be killed too – at the very least this is clearly a different approach from Hamas. The media centre – I might not disagree with you there, didn’t follow it closely enough. But surely, although terrible, the mistake about the family really was just a mistake?
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Sarah,
I don’t agree that this approach result in saying both sides are equally good/bad. I see IHL as a bottom layer to not fall below. I used the phrase “basic standards”. In addition to this, you have space to analyse what is happening above these basic standards.In your case you think that Hamas’ attacks are worse than Israels. I would hope however, that you would argue that Israel should abide by these basic standards when conducting its military operations.
From my perspective, I don’t think you can judge acts on either side (in a moral sense) without understanding the regional hostilities and the on-going military occupation. There many explanations for behavior (note, different to justifications) – I saw first hand how the occupation effects every aspect of life for basically all Palestinians. People are hurt (nearly everyone knows people who have been killed), desperate (unemployment is high and prospects are low) and angry (everyone can see the immediate impact of occupation – such as being held at checkpoints or having their house raided – but most can also see the long term strategic attempt to force people off land). People blame, often but not always rightly, Israel for the conditions they find themselves living in).
Taking up your argument that Hamas attacks are worse than Israels I would say a few things. 1) I don’t think it is very useful comparing suffering. 2) Israel has the capability to avoid indiscriminate attacks – it often chooses not to. For Hamas, they have much less military choice (remember this is an explanation not a justification). 3) In the latest up-surge in violence, at least 27 children died in a week in Gaza. The UN estimates that 103 out of the 158 who died were civilian. There are no bomb shelters, defense shields or even sirens in Gaza!
Your argument that Israel is not doing as much as *could* do, doesn’t in my opinion hold up. You cannot judge a states crimes by the potential crimes it could have undertaken! All we can is judge states on what they HAVE done. Israel has breached IHL and those responsible MUST be held to account!
I would however distinguish in Israel’s favour in that they ARE a country based on law – who HAVE signed up to most of IHL. All I am asking here is that they live up to these basic standards. As you rightly have pointed out in the past, there is a different challenge for Hamas – we have to get them to change some of the principles on which they are based.
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I thought the article I linked to was quite good on this issue of proportionality (which Martin mentions) – it really is worth reading. I think the point Martin makes about targeting individuals seems valid – also cf drone attacks in Pakistan I guess.
Steve – I think it’s very important to treat Hamas and the WB separately, as the cases are so different. I can’t imagine Hamas would be thrilled if Israel and Palestine (WB) reached a sensible deal.
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