Thursday, January 08, 2009

The Hamas Conflict:Can Civilian Casualties be Avoided?

Any decent human being would be appalled by the civilian casualties that too often accompany armed conflicts around the world, and the current crisis in Gaza is no exception. The questions that immediately arise are: Can civilian casualties be avoided? How? If they cannot, who must be held accountable? International law has sought to advance the protection of civilians by laying down rules to shelter them from the fighting, to the extent possible. These rules were encoded in the Laws of Armed Conflict, as codified in international treaties and customary international law, and apply to and impose obligations on all parties to a conflict, including those armed groups such as Hamas and other terrorist organizations operating from within the Gaza Strip

The most heinous war crimes committed by Hamas involve endangering the civilian populations on both sides of the conflict: They deliberately target Israelis and launch missiles with the goal of causing maximum harm to civilians. International law clearly prohibits such tactics which stand in marked contrast to the most fundamental rule of the laws of armed conflict – the principle of distinction. Article 51(2) of the Additional Protocol provides: “The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited”.

Hamas also uses its own population as human shields, utilizing their presence to make certain areas immune from military operations. We have witnessed Hamas' systematic launching rockets from within densely populated areas in the Gaza Strip, including protected civilian areas such as schools and mosques, abusing distinctive emblems of the Geneva Conventions and ambulances to transport weapons and terrorists, and shooting out of private homes while the resident family is held hostage and barred from leaving. These are all serious war crimes, committed against Palestinian civilians, in contravention of the Laws of Armed Conflict. Over the last few days of fighting in Gaza, there have even been reports of Hamas gunmen grabbing Palestinian children off the street and carrying them as human shields.

Hamas' unlawful behavior, characterized by its launching of attacks from behind Palestinian civilian "human shields", creates a no-win situation for the Israeli Defense Forces: they can either do nothing, leaving Hamas to target Israelis with impunity, or they can fire back at Hamas and run the risk of harming civilians on the Palestinian side.

Hamas, on the other hand, is faced with no such moral quandary – if the Israelis do not respond militarily, Hamas gains a clear tactical advantage. If the Israelis do respond and civilians are harmed, Hamas has no remorse about such casualties, as it sees itself as fighting a jihad (holy war), with all casualties on its side, however avoidable, considered shaheeds (religious martyrs). Furthermore, Hamas cynically takes advantage of the media with its reprehensible acts, giving rise to gruesome media images and anti-Israeli headlines, as we have witnessed in recent days. In this vein, Hamas' deliberate obstruction of aid to Palestinian civilians in order to create artificial suffering should also be noted.

The battle lines in Gaza have been drawn between a terrorist organization that glorifies death, as represented by Hamas, and a legitimate State that seeks to preserve life and obey international law, as represented by Israel.

The question that arises is what is Israel supposed to do in the face of these criminal tactics? Again, international law provides some answers.

Article 51 of the Additional Protocol clearly states that “The presence of 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” (emphasis added ). Therefore, if a rocket launcher is placed in a civilian home, it remains, nonetheless, a legitimate, military target. The presence of civilians, while extremely unfortunate, cannot provide immunity to the terrorist who launches such rockets. In this way, the Geneva Conventions recognize that if one side(in this case, Hamas) commits the war crime of hiding behind civilians, then, unfortunately, civilians may, inevitably, get hurt in the course of a lawful response to such act (in this case, as undertaken by Israel).

So, if Israel has the law on its side, why is it coming under so much criticism? The answer is threefold.

Firstly, there is a knee-jerk reaction to the terrible images featured in the media and the desire to blame the usual suspect, Israel. This is a natural, albeit superficial, human reaction. Only a person willing to investigate the matter more deeply, and inquire as to what the target of an Israel Defense Force operation was (e.g. a missile launcher) and why civilians were in the area (due to Hamas’ war-crime tactics), would be equipped to place the blame where it belongs.

Secondly, if Israel did not react, but simply absorbed the missiles, infiltrations and terrorist attacks, there would be a semblance of stability. This artificial stability is not unattractive for many people around the world, as crises in the Middle East tend to have an impact well beyond the parties immediately involved. Thus, calls have already been made for Israel to cease fire immediately and negotiate, and even for Israel to meet some of the terrorists' demands. Here, we must ask ourselves about the long-term effects of capitulating to terrorism.

Israel showed extreme restraint over the past eight years in the face of over 8,000 Hamas rocket and missile attacks on its civilian population. In the days preceding the current operation, Israel did not react to Hamas’ daily barrage on its southern towns, but, rather, peacefully warned Hamas that such restraint cannot last forever in the face of unceasing attacks. Did such warnings dissuade Hamas from undertaking further terrorist action, or did they merely embolden the terrorist organization? The answer, unfortunately, lies before us.

In its military campaign against Hamas targets, Israel is doing everything in its power in order to minimize harm to the civilian population. Israeli forces use the most sophisticated weaponry currently available in order to target legitimate military objectives only. Care is taken to reduce to a minimum the risk to which the civilian population is exposed, often at a cost to Israel's operational advantage. For example, Israeli forces place telephone calls to Palestinian civilians in Gaza prior to launching operations, and provide them with advance notice that a Hamas stronghold in their vicinity is about to be targeted, giving them time to evacuate. Indeed, Israel’s efforts to protect the civilian population in Gaza goes well beyond the requirements of international law and often exceed the practices that have been employed by other States confronting similar, or even less gave threats to the lives of their civilians. Regrettably, even the most sophisticated weaponry available today simply cannot target terrorists alone and leave their immediate surroundings unscathed.

Unfortunately, so long as Hamas continues to violate international law in a flagrant and egregious manner by using Palestinian civilians as human shields on the one hand, and, at the same time, targeting Israeli civilians, it is highly probable that ordinary people will continue to get hurt in the crossfire. That is the nature of Hamas’ dirty war. It will stop only when the international community raises its voice against these criminals, rather than in opposition to Israel's lawful response to their attacks.

עד כאן
מח' מידע ואינטרנט – אגף תקשורת

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