04 August 2014

The Israel-Hamas Conflict 2014: Dispelling the Myths

A publication of the Executive Council of Australian Jewry – August 2014 

MYTH: Israel is using "disproportionate        force" in its campaign against Hamas

Proportionality in armed conflict

Whilst the loss of innocent civilian is a tragic and inevitable consequence of war, the rule of proportionality in armed conflict prohibits “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 (Article 51(5)(b) of Additional Protocol 1 to the Fourth Geneva Convention, 1977 – emphasis added).

As explained by the Chief Prosecutor of the International Criminal Court, Luis Moreno-Ocampo, whether a military response to a threat posed is proportionate is not determined by comparing civilian casualties on both sides of the conflict:

"Under international humanitarian law and the Rome Statute, the death of civilians during an armed conflict, no matter how grave and regrettable does not constitute a war crime.... even when it is known that some civilian deaths or injuries will occur. A crime occurs if there is an intentional attack directed against civilians (principle of distinction) or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality)." (emphasis added)

Anticipated military advantage versus incidental civilian injuries

The anticipated military advantage” of Israel’s military actions in Gaza is the removal of the direct threat posed to the lives and well-being of 8 million Israeli citizens (Jewish and Arab) by Hamas rocket attacks. Even before the latest escalation by Hamas, there were more than 200 such attacks on Israeli civilian targets in the period between 1 January and 30 June 2014.  Hamas is in clear violation of Article 51(4) of Additional Protocol 1 to the Fourth Geneva Convention which prohibits “indiscriminate attacks” that are “not directed at a specific military target”.  Further, the discovery of a vast network of tunnels from Gaza under residential areas in Israel, arguably poses an even greater threat to Israeli civilians than rocket fire directed at Israel’s civilian population centres. 

The ratio of civilian to combatant deaths is also often referred to in arguments about proportionality. All the figures cited by the UN in the current fighting emanate from Hamas sources and cannot necessarily be relied upon. During the 2008-9 Gaza fighting, claims that Israel had killed far more civilians than combatants were ultimately exposed as a lie.  As Hamas eventually admitted, of the 1166 Palestinian deaths, 709 combatants were killed in combat, as the Israelis had maintained all along. That is, Israel killed approximately two combatants for each civilian. By comparison, in the 1991 Gulf war, a lawful war authorised by the UN, the ratio was 2.125 civilian deaths for each enemy combatant killed. In the 2003 Iraq war it was 4.5 civilians per enemy combatant. In attacks by drone aircraft in Afghanistan, on average 10 civilians died for each enemy combatant killed.

Hamas’s violations of the laws of war, do not preclude Israel from attacking military targets which Hamas has deliberately embedded in civilian areas, although Israel must give civilians warning of attacks and try to keep civilian casualties to a minimum:

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. (Article 51(7), Additional Protocol 1 to the Geneva Conventions 1977)

Protecting civilian life

Israel has gone to far greater lengths than other military forces to avoid civilian casualties. It forewarns civilians via leaflets, text messages, phone calls and other means of the time and place of impending operations (even if this means prejudicing their military effectiveness) and provides maps showing civilians where to go to be safe. 

In respect of Israel’s efforts to prevent suffering of civilians in the vicinity of the conflict zone, Colonel Richard Kemp, the former commander of British forces in Afghanistan, made the following assessment on 24 July 2014:

“I believe that on the basis of everything that I've seen, that everything the Israeli Defence Force (IDF) does to protect civilians and to stop the death of innocent civilians is a great deal more than any other army, and it's more than the British and the American armies."

In contrast, Hamas has deliberately exposed Palestinian civilians to harm. On three occasions during the current conflict, the United Nation Relief and Works Agency (UNRWA) has found Hamas rocket caches in schools in the Gaza Strip, turning UN-operated facilitates for children into legitimate military targets. According to the BBC, "witnesses and analysts confirm that Hamas fires rockets from within populated civilian areas.” Amnesty International assessed that Hamas endangered its civilian by deliberately firing on Israeli targets from homes. The United Nations Humanitarian Affairs Chief John Holmes accused Hamas of "reckless and cynical" use of civilian facilities during the hostilities in the Gaza Strip, and concluded that this, as well as indiscriminate firing of rockets against Israeli civilian populations, are clear violations of International Humanitarian Law (Articles 51 – 54 of Additional Protocol 1 to the Geneva Conventions 1977).

MYTH: Israel's campaign against Hamas        "collectively punishes" Palestinians 

Collective punishment and international law

The prohibition against collective punishment under international law is derived from the Hague Regulations concerning the Laws and Customs of War on Land 1907 (Article 50);  the Third Geneva Convention 1949 (Article 87 – Imposition of penalties on prisoners of war) and the Fourth Geneva Convention 1949 (Article 33 - Individual responsibility, collective penalties, pillage, reprisals).  These provisions are generally accepted as declaratory of customary international law.

Article 33 of the Fourth Geneva Convention is especially apposite. It provides that, “no persons may be punished for an offense he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.”

The crime of collective punishment involves the intentional imposition of penalties on innocent people as a reprisal for the acts of others.  It is a legal concept which is often confused with the inadvertent causation of civilian casualties and damage to civilian structures in times of armed of conflict. 

Minimising suffering of civilians

It is without question that most regrettably civilians have suffered during the current hostilities in Gaza, as has occurred in all armed conflicts. Evidence of widespread suffering of civilians caught in the middle of a conflict is not evidence that the suffering has been intentionally caused. There is absolutely no evidence to support, and much to contradict, the assertion that Israel has intended to harm civilians. 

Far from holding the civilian population of Gaza passively responsible for the crimes of Gaza’s armed terrorist factions, or imposing penal or retributive punishments on innocents, Israel has taken extraordinary precautions to warn civilians of impending attacks and to direct them to safe areas, even to the point of prejudicing the military effectiveness of its operations, and has also enacted a series of measures to minimise and alleviate the suffering of civilians as far as possible.

For example, Israel has operated a temporary hospital for Palestinians on the Israeli side of the Erez border crossing in cooperation with the Red Crescent. The field hospital contains an emergency room, laboratory, pharmacy, paediatric ward, ambulatory clinic, gynaecology unit, family and internal medicine, and is equipped to treat dozens of patients.  As at the end of July, Israel had coordinated 31 back-to-back ambulance procedures. 247 Jordanian field hospital staff members crossed into Gaza to replace their colleges. 1000 units of blood from Jordan and the Red Cross were transferred to Gaza.

Despite the intensity of the fighting, Israel has also kept open the Keren Shalom border crossing, through which 970 trucks have entered the Gaza Strip carrying food, fuel, medicines and medical equipment.

The clear aim of maintaining a humanitarian passage is to spare the Palestinian people from undue suffering as far as possible, the antithesis of collective punishment.

Sensational allegations against Israel have invariably been made during previous outbreaks of hostilities, but these have frequently been disproved many months or years later. Immediately after the 2008-9 Gaza fighting, the UN-commissioned inquiry headed by Justice Richard Goldstone claimed that Israel had intentionally targeted and killed civilians. Justice Goldstone publicly retracted these claims two years later, after the damage to Israel’s reputation had been done. Claims that Israel had killed far more civilians than combatants were also ultimately disproved (see above).

MYTH: Gaza is under “siege”

Palmer Commission and lawful blockade

In September 2011, a panel of inquiry chaired by former New Zealand prime minister and professor of law, Sir Geoffrey Palmer and commissioned by the UN Secretary General found that Israel’s blockade of Gaza was legal under international law and was a “legitimate security measure in order to prevent weapons from entering Gaza” given the “real threat to Israel’s security from militant groups in Gaza.”

These “legitimate security measures” are evidenced by the frequent interceptions of Iranian vessels bound for Gaza loaded with sophisticated missiles capable of delivering devastating payloads throughout Israel.

Flow of consumer and humanitarian goods

The legality of the Israeli and Egyptian blockade notwithstanding, the free flow of consumer and humanitarian materials shows that Gaza is not under “siege”. Food and supplies are transported to Gaza six days a week via Israel’s border crossings in co-ordination with both international aid organisations and Gaza’s private sector. On average, Israel coordinates the transfer of more than 15,000 tons of supplies each week. 

In 2010, Israel lifted a restriction on the import of numerous items with a dual civilian and military use, including cement and building supplies, in order to facilitate construction in the coastal enclave for civilian and commercial purposes. Israel’s current operation in Gaza has uncovered a highly sophisticated network of tunnels penetrating deep into Israeli territory, constructed using an estimated 800,000 tonnes of cement. A tunnel discovered by Israeli engineers in February 2013, 1.7km in length, would have alone required 500 tons of cement, enough to build a three-storey hospital.

Article 8(2)(e)(vii) of the Rome Statute makes it a war crime to conscript or enlist children under the age of fifteen years into armed forces or groups or use them to participate actively in hostilities. To the extent that this particular provision represents a rule of customary international law, it is binding on commanders of irregular armed forces or groups like Hamas, who have violated the rule by conscripting or enlisting young Palestinian children for the purpose of constructing tunnels for combat operations. A report in the Journal of Palestine Studies found that some 160 Palestinian children died during tunnel construction.

MYTH: Gaza is “occupied

Occupation and international law

A territory is considered “occupied” under international law “when it is placed under the authority of the hostile army [and the occupation] extends only to the territory where such authority has been established and can be exercised.” (Article 42 of the Hague Convention 1907).

Article 6 of the Fourth Geneva Convention states that the occupation will continue as long as the occupying power “exercises the functions of government” in the territory.

Case law and state practice has consistently used the term “effective control” to describe the conditions necessary for an occupation to exist.

Specifically, occupation requires “the exercise of governmental authority… the exclusion of the established government... and the establishment of an administration to preserve law and order.” (United States v List (“Hostages Case”) (1948)).

Hamas and “effective control” of Gaza

The total withdrawal of Israeli soldiers and civilian population from the Gaza Strip (completed on September 12, 2005), ended Israel’s occupation of the territory.

Although Hamas candidates won the most seats in legislative elections in 2006, Hamas illegally seized executive power in the Gaza Strip by the violent ouster of the rival Fatah faction in June 2007. Since that time, Hamas has exercised absolute control over all government and administrative functions in Gaza, including the enactment of laws and promulgation of regulations which Hamas has the capacity to enforce, and does enforce, often brutally. 

Since August 2005, Israel has not exercised any governmental control or administrative authority in Gaza, including control over law and order. The fact that Israel has control of some of the borders and the airspace does not give it effective internal control of Gaza. All aspects of governmental and administrative control have been assumed by Hamas.

MYTH: Hamas has a right to “resist”

The right to resist under international law

International law recognises a highly qualified and limited right to use force to resist “alien occupation.” (Article 7 of United Nations Assembly Resolution 3314 (XXIX) (1974)).

Leaving aside the fact that Gaza is not under Israeli occupation under international law, a position which would immediately preclude Hamas from claiming any lawful right to resist, if Hamas did have such a right it would still have to be exercised “in accordance with the Charter of the United Nations”: (Article 7, United Nations General Assembly Resolution 3314 (XXIX) (Definition of Aggression); Article 1(4), Additional Protocol 1 to the Fourth Geneva Convention) 

This means that the right to use force in ‘resistance’ to occupation, does NOT extend to the use of force against the sovereignty, territorial integrity or political independence of other States – including the State that is suppressing them (UN Charter – Article 2(4)). 

Further, the right to use force applies only if the peoples concerned have attempted in good faith to “settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered”.  (UN Charter – Article 2(3)). 

Finally, the only force which is permissible is that which respects human rights and … fundamental freedoms for all without distinction as to race, sex, language, or religion”.  ((UN Charter – Article 1).  

Hamas comprehensively fails to meet each of these conditions. Its Charter calls for Israel to be “obliterated” (preamble) and for the killing of Jews (Article 7, final paragraph). It declares that peace negotiations are “a waste of time” (Article 13).

If the force used in “resistance” is such that, if carried out by a state, it would violate international humanitarian law (the laws of war), it is as unlawful as if carried out by a state. A key requirement of international humanitarian law is the obligation to distinguish between civilian and military targets (Articles 48 and 51, Additional Protocol 1 to the Fourth Geneva Convention); and not to attempt to use one’s own civilians and civilian structures as ‘shields’ for military purposes targets (Articles 51 – 54).  Hamas clearly violates these requirements (see above).