Defending against terror impossible in international law
Human rights organizations have two main problems with Israel defending itself: the “principle of distinction” and “the principle of proportionality.” These are not what the Geneva Conventions calls them but they are the shorthand for the following rules.
The principle of distinction refers to Article 48 of Protocol 1, which states:
In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.
And the principle of proportionality comes from article 51, paragraph 5(b) (bolded):
1. The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations. To give effect to this protection, the following rules, which are additional to other applicable rules of international law, shall be observed in all circumstances.
4. Indiscriminate attacks are prohibited. Indiscriminate attacks are: (a) those which are not directed at a specific military objective; (b) those which employ a method or means of combat which cannot be directed at a specific military objective; or (c) those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol;
and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.
5. Among others, the following types of attacks are to be considered as indiscriminate: (a) an attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects;
(b) an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.
7. The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations.
You will notice that Hamas often violates paragraph 7 above by telling citizens to act as human shields, as they did in Beit Hanoun and Beit Lahiya in 2006. And, of course, Qassam and Grad rockets by their very nature violate the Geneva Conventions multiple times by targeting civilians, by not distinguishing between civilians and military targets, by punishing the civilian population for perceived crimes of the military, and many others. Beyond that, Hamas routinely violates other aspects of Geneva, such as by placing military objects in civilian areas, by taking medicines and fuel from hospitals, by placing Fatah prisoners in areas where they are in danger and many, many others.
But Hamas can do all of this with impunity, because of Paragraph 8:
8. Any violation of these prohibitions shall not release the Parties to the conflict from their legal obligations with respect to the civilian population and civilians, including the obligation to take the precautionary measures provided for in Article 57.
So no matter how much Hamas violates the Geneva Conventions, Israel must respect the laws with regard to civilian lives. Only Israel is under international pressure to adhere to Geneva; no Arab nation is similarly pressuring Hamas to follow international law.
Hamas has the means and the history of violating dozens of provisions of international humanitarian law and can do so with no fear of sanctions or serious condemnation, and not even the fear of Israel doing the same. There is no way that Israel can attack rocket launchers without some civilians being killed as long as Hamas places them in schools and sends teenage boys out to retrieve the launchers.
In recent days we have seen people representing the EU and UN and human rights organizations who say, in all seriousness, that “Israel has the right to defend itself” – but they cannot say how it is possible without violating Geneva in one way or another. This is because it isn’t possible.
It is literally impossible for a nation, hamstrung by international law, to fight against a terrorist foe that flouts that same law.
The only alternatives for Israel are:
* to ignore international law and accept the consequences.
* to be a sitting duck and let Israeli citizens die
* to adhere to the law as much as possible – a slippery slope because there will inevitably be violations in defensive actions and double-standard pressure for Israel to adhere 100%.
What needs to be done is to modify Geneva’s Article 51 paragraph 8 to lay the responsibility for civilian injuries and deaths squarely on the parties that ignore the law. If the world blames Hamas for not properly separating civilians from military targets, and therefore blames Hamas for any civilians killed, there would be a short-term loss of lives but over time Hamas will be forced to abandon its policy of hiding military targets in civilian areas – thus saving many, many more lives in the long run.
We need to change the calculus for the terrorists, to force them to consider the death of their own civilians as a loss rather than a positive. And the way to do that is to place the blame for their civilian deaths squarely on them. Only when they start adhering to Geneva will it make sense to expect their enemies to do the same.