ISRAEL - HAMAS CONFLICT - WHO IS RIGHT ?
WHO IS RIGHT – ISRAEL OR HAMAS…AND INSIGHT IN THE INTERNATIONAL LAW’S
VIEWS ON THE MATTER.
International law has quite a lot to say about the latest violence
that has flared up between Israel and Hamas. So do the media. Unfortunately,
they rarely match, leading to unfortunate — and sometimes egregious —
misrepresentations. In an age when both real and perceived violations of
international law have a substantial effect on the legitimacy of state action,
getting it wrong is way more than just bad journalism.
The core purpose of the law of war — a centuries-old framework
regulating conduct during wartime — is to protect civilians and minimize
suffering during wartime. In any conflict, all parties — states, rebel groups,
terrorist organizations — have obligations to minimize harm to civilians. For
each party, these obligations take two primary forms: protecting civilians in
the areas where it is attacking, and protecting its own civilians from the
consequences of attacks by the enemy party. Attacking parties must 1) attack
only enemy personnel and objects; 2) refrain from any indiscriminate attacks;
3) refrain from attacks in which the expected civilian casualties will be
excessive in light of the military value of the target; and 4) provide warnings
for civilians of attacks where feasible. In their own territory, militaries and
armed groups must refrain from locating military objectives in densely
populated areas and take other steps to keep civilians out of harm's way.
Specifically, the law also criminalizes the use of civilians as human shields.
It is particularly disheartening, therefore, when perversions of
this law, through biased or faulty media coverage, effectively promote the very
opposite result. Consider media coverage of Israeli strikes on targets in Gaza,
of Hamas and Islamic Jihad's rocket attacks on Israel, and of Hamas's actions
in Gaza.
First, reports have described Israel's comprehensive system of warnings
to civilians before launching strikes in Gaza as "contentious" and
suggest that it is motivated solely by the desire to evade potential war crimes
charges. Under the law of war, warnings are designed to protect civilians by
giving them the opportunity to leave an area of hostilities and seek safety.
Examples of such warnings include radio announcements, leaflets, or other
generalized communications. Israel's use of individualized, specific warnings
by phone and text goes far beyond what the law requires — it is hard to imagine
how they could possibly be described as "contentious," instead of
unprecedented or protective.
At the same time, the law of war does not require warnings before
targeting enemy personnel — indeed, the law authorizes the use of lethal force
as a first resort against enemy fighters and military objects. Imagine the
absurdity of a system that required soldiers to give the enemy a chance to hide
or plan an ambush by giving a warning before attacking: The United States did
not warn German or Japanese soldiers before attacking them in World War II, nor
should it have. Hamas militants are fighters, not civilians, and therefore are
not entitled to protection from attack, just as Israeli soldiers are not
protected from attack during conflict. It is the civilians of Gaza and Israel
and every other conflict zone that the law seeks to protect, through a
comprehensive web of protections and obligations.
Second, Hamas has announced that it is launching rockets at Haifa,
at Tel Aviv, at Jerusalem and other Israeli cities. Not at military bases, army
units, communication networks or any other military target, but at cities
populated by hundreds of thousands, even millions of civilians. The law of war
requires that parties distinguish between military and civilian targets and
only attack military personnel and targets. Deliberate attacks on civilians and
indiscriminate attacks — attacks that are incapable of distinguishing between
legitimate targets and civilians — are prohibited and are war crimes.
Hamas and Islamic Jihad fire their rockets with either no regard for
the distinction between military and civilian objects or with direct intention
to harm civilians and civilian infrastructure. There is no question of taking
precautions to protect civilians, whether through warnings or other required
measures; rather, every single rocket attack violates the law's most
fundamental obligation to protect civilians. And yet the word
"indiscriminate" rarely appears in descriptions of such rocket attacks.
Third, Hamas's use of civilians and civilian buildings in Gaza as a
shield is well known. Media reports tell of rockets being launched from
residential buildings and schoolyards, munitions stored in houses, mosques and
hospitals, Hamas leaders using civilian homes as command posts, and civilians
being encouraged to go up on their roofs as human shields. These reports
unfortunately rarely, if ever, mention that such conduct violates the law and,
even more important, puts civilians at ever greater risk of death and injury.
Using human shields is not a romanticized effort at neighborhood
defense — it is a war crime. Using hospitals as munitions depots or sites for
rocket launchers endangers every civilian who needs medical treatment, because
once the hospital is used for military purposes, it loses its protection from
attack. Using houses for all manner of military activity amounts to using the
civilian population as a shield and risks the life of every civilian in the
neighborhood. This conduct demonstrates that Hamas not only views every
civilian and every city in Israel as a target — which is wholly illegal — but
that it also views every civilian and every neighborhood in Gaza as an
expendable pawn in a propaganda war, a tragic and equally illegal approach.
Facilitating that conduct is an unfortunate and deadly consequence
of media coverage that feeds misperceptions about how Israel and Hamas are
fighting. Legitimizing lawful conduct would be far better, because law has an
essential role to play in war; indeed, adherence to the law is a matter of life
and death.
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