I generally don’t like to post too much on politics, but I would like to post about the shocking and horrific attack Israel has recently sustained; and a broader note on the law regarding Israel’s war.
I think we should be under no illusion as to why the terrorists of Hamas suddenly decided to wage an all-round offensive against Israel. And the word ‘offensive’ doesn’t quite capture the evil and carnage visited on ordinary Israelis. How anyone can riddle babies with bullets, burn young people alive in their cars etc. is beyond my comprehension.
I am v. glad that the British and American governments have been steadfast in their support of the Israelis in the face of this barbarism. Especially since we now know that Tehran were complicit in Hamas’s plan and were probably seeking to pivot a Middle Eastern conflagration.
Today, the reality is that Israel is at war.
Richard Kemp (see below) has recently argued that the war must be fought with overwhelming force against Hamas - or risk embroiling into an interminable war with more dead bodies on either side. That seems correct to me. What will prove problematic and thorny is how Israel responds to this appalling act of aggression.
Under the norms and rules that govern warfare in international law (the law of armed conflict), states have a right of self-defence against an armed attack; and, accordingly, Israel has a broad military latitude. This is qualified by the need for force to be necessary and proportionate. Proportionality entails the defending state deploying as much force as is necessary to neutralise a threat – and no more. The unprecedented scale and nature of Hamas’s attack means that Israel easily satisfies that broad discretion. The question would be the proportionality.
The crux of the problem is how do you fight an organised and monstrous terrorist campaign seeking to butcher and rape civilians and murder babies – and, most notably, use the Gaza citizens as a veritable human shield. How does a modern-day democracy, like Israel, respond to an opportunist cynical attacker that won’t fight in an open battlefield? There is a world of difference between murdering civilians, and parading their defiled corpses through town; and targeting terrorist cells (and necessarily inflicting collateral damage). The difference is the intent; and this is recognised in law. For example, the Obama administration had to use the same principle with its drone strike program when targeting terrorists (e.g. Anwar al-Awlaki). Ordinary citizens – incl. many in numbers – can be killed if a military operation is necessary and proportionate with reference to the military advantage anticipated.
Israel’s missile targeting is lawful if it meets the test (in the above paragraph) which is measured against the serious and pressing threat which is capable of striking most of Israel (as the Hamas’s large rocket force is evidently capable of doing).
To my mind, the heavy bombardments of Gaza represents a shift in military strategy. In the former military engagements, the bombardments of Gaza ended-up with the terrorist group remaining in power. I suspect Mr Netanyahu has opted to destroy Hamas’s military and governing structure through targeting whole Gaza neighbourhoods - as opposed to individual buildings. Hence, the warnings have changed.
This may sound and feel like Dresden during WWII; but I am not sure that Israel has much meaningful alternative. Hamas have always operated in civilian buildings. The rules of war - that most people are familiar with - were not designed to deal with military engagement in urban cities and against a ruthless adversary. For me, it was very revealing that after Israel called on the 1.1m Gaza denizens to move South; Hamas then immediately rebuked those civilians and urged them to ignore the call. Indeed, the warning itself can be tricky. Traditionally, the IDF used to give prior warning for certain strikes - but that can only come at the expense of losing the military advantage of the surprise which may be critical.
People have been criticising the severity of the blockade and the turning-off power in certain parts of the Gaza Strip. But the object is to free hostages that have been kidnaped, and of course Israel is at war. The electricity has been cut in areas clearly controlled by Hamas (i.e. not the evacuation zone), and to which they (Hamas) will use it (electricity) to further attacks on Israel. Indeed, Israel has also been negotiating certain supplies entering via Egypt at the Rafah crossing. The blockade and power cut - which can feel excessive - can probably be justified on the above analysis. Blockades are not a novelty in wars.
At the end of the day, Israel is at war and is entitled to eliminate Hamas. The problem is that the military cannot veer towards revenge. US Senator Lindsey Graham has been quoted in yesterday’s paper as saying that Israel should “raze” Gaza to the ground. This is ridiculous nonsense which would should embarrass any democratic constitution. It’s what separates a military structure in a democracy from barbarism, and it is precisely why the Geneva Conventions were introduced.
Notwithstanding the absolute horror at the recent slaughter in Israel, I really do feel for the ordinary Palestinians too, and their terrifying situation. Hamas are maniacs and will (and indeed, do) easily kill their fellow Gazans who disobey their orders.
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Richard Kemp in The Daily Telegraph:
“Tunnelling and a ban on electronic comms gave Hamas advantage”, in The Daily Telegraph.
