A commentator on my previous posting (of 19 November) explicitly makes the argument anticipated but dismissed there, that weaker parties in these irregular wars will tend to see themselves as not bound by humanitarian law. He says: “Having and obeying the rules of warfare tends to be something that only the strong can do. Without supporting one side or the other it is obvious that Hamas or the PLO is not militarily able to take on the IDF in the open. To do so would be suicidal. Were I a freedom fighter (which in their eyes they are) I’d use the means I had available and stuff the rules.” (emphasis added).
It is easy to understand the sentiment that lies behind this kind of observation, and the commentator is right to observe that Hamas cannot take on the Israeli Defence Forces in conventional conflict, with any prospect of success. But it is a long way from this observation to justifying killing arbitrary Israeli citizens (not members of the military forces), which is the dominant Hamas tactic. This, as noted earlier, is simply terrorism and has been universally condemned (in United Nations resolutions, international conventions and humanitarian law) and it doesn’t matter whose ‘eyes’ we are using.
To concede the point to Hamas is to concede it to all the groups around the world who have grievances about which they feel passionately (Taliban, al Qaeda, IRA, FARC, Moro Liberation, Tamil Tigers, Basques, …). International humanitarian law simply cannot work unless the same principles of moral/legal judgement are applied in all cases. Claims of ‘war crimes’, made by parties to a conflict, are otherwise, hypocritical and self-serving. If a party cannot fight within humanitarian rules, it cannot fight at all. The deliberate decision to employ coercive violence to achieve a political end (initiate ‘war’, or respond to prior attack), inevitably brings an obligation to exercise restraint, both in regard to who is harmed and in relation to the overall destruction caused (the principle of proportion). In this context, we can comment on what was done by Israeli forces in the latest phase of the long war in Palestine.
To begin with, I am taking it that Israel was justified in responding militarily to the preceding rocket bombardment and that the targeting of the Hamas military commander (Ahmad Jabari) was legitimate. He was manifestly ‘participating in hostilities’ (as noted in earlier commentary, this is the Geneva (Protocol I) characterisation of ‘combatant’). The same applies to strikes at lower-level operatives who were facilitating operations and/or manning rocket launch sites. I also take it that launch sites or weapon stores are legitimate military targets, wherever they are.
Humanitarian law is less clear on the status of persons who are more ‘political’ than ‘military’. Traditionally, Geneva has seen only uniformed members of the armed forces of a belligerent state as combatants, with everyone else (including government ministers) as ‘civilians’ (and thus protected). This is anomalous in the case of officials who are involved in the direction of a war (Defence Minister) and particularly where the head of state is nominally also ‘Commander in Chief’. It is arguable that such persons are participating in the hostilities in a big way and thus are also legitimate targets for attack. If this is accepted, then Israeli targeting of Hamas officials and government offices is also defensible.
But there is a problem in all these cases (including the clearly military targets). If local reports are to be believed (and that is an important caveat), most of the people actually killed (several hundred overall) were not in any of the categories above. They were civilians. The words of the Chief Prosecutor at the International Criminal Court are very relevant here: “Under international humanitarian law and the Rome Statute, the death of civilians during an armed conflict, no matter how grave and regrettable, does not, in itself, constitute a war crime. It is (the prosecutor explains) a matter of proportionality between the value of the military objective and the incidental civilian harm. In the circumstances I was describing in the previous column (‘A kind of terrorism’, 19/11/12), where such objectives are frequently found in civilian areas and, perhaps, intentionally so, this is inevitably a difficult calculation. On the other side, there is also the matter of using civilians and civilian structures as a ‘shield’ for military operations, which is also a war crime. Any prosecutions in this sort of case are going to depend crucially on the facts of the case, and any convictions that occur will clarify humanitarian law on many of the points that were the subject of some speculation above.
Recent events may have moved this issue beyond the academic, in that some supporters are suggesting that the new status of the Palestinian Authority may permit them to become a party to the Rome Convention and thus be in a position to initiate a prosecution of Israel for war crimes. It would be strange, indeed, for this process to occur, whilst their defenders also claim that they (the Palestinians) are not, themselves, bound by the statutes of the convention, on account of their relative weakness and the strength of their cause. Truly, we live in interesting times.