International law includes a concept of proportionality as it applies to warfare. Intentionally targeting civilians constitutes not simply a criminal act but a crime against humanity. It is also considered a crime to attack a military target when it is clear that the likely incidental civilian injuries and deaths will be disproportionate to any likely military advantage to be gained as a result of the attack.
Consider the nature of the conflict between Hamas and Israel. Hamas is explicit in its genocidal intent, stating in its charter and in myriad declarations by its representatives that its goal is not only the annihilation of Israel but the slaughter of all Jews. It makes clear that it has zero interest in the establishment of a Palestinian state living peacefully alongside Israel.
Apologists for Hamas’s Gaza regime claim that Israel, by blocking open access to Gaza, has, in effect, created an open-air prison in which Gazans suffer constant deprivation and so the organization has the right to try to break the Israeli siege. But from the time that Israel pulled all its citizens and troops out of Gaza, in 2005, the Palestinian leadership in the territory has pursued rocket attacks into Israel, and those attacks only escalated after Hamas seized control of Gaza in 2007. To the degree that Israel has limited access to Gaza, it has done so in response to these incessant bombardments and other assaults. In addition, its doing so is consistent with international law regarding states of belligerency and, for example, the United Nations has upheld the legitimacy of Israel’s naval blockade of Gaza.
Moreover, the Israeli “siege” is typically overstated as totally cutting off Gaza from the wider world. In fact, one of Gaza’s borders is controlled by Egypt, not Israel. Further, huge amounts of goods enter Gaza on an almost daily basis from Israel and many Gazans cross back and forth between Gaza and Israel. Even during the current war, Israel continues to supply electricity and water to Gaza and continues to allow the daily passage of tons of goods, including food and medicine, into Hamas-controlled territory.
Also noteworthy is that Israel not only fully withdrew from the territory but left behind assets that could have contributed to Gaza establishing itself on a sound economic foundation. With the extensive financial support poured into Gaza by the international community, it could have become a Middle East Hong Kong or Singapore.
But Hamas has chosen to pursue its war of annihilation against Israel rather than create a prospering polity. It destroyed many of the economic assets left behind by Israel and devoted the huge influx of money provided by the Arab world and others in the international community to killing Israelis and trying to expunge the Jewish state instead of seeking to improve the lives and welfare of its people.
A major element of the current fighting is Israel’s effort to dismantle the extensive and highly sophisticated tunnel system built by Hamas to infiltrate and attack Israelis and to protect rocket launch sites and command and control centers. Israel had for a time, in the wake of earlier hostilities with Hamas, withheld deliveries of cement out of concern that it would be used to build underground military installations rather than houses and public facilities such as schools and hospitals. It subsequently bowed to international pressure and allowed extensive transfer of cement and related construction materials from Israel to Gaza, and its worst fears proved prescient. For Hamas, the well-being of Gaza’s civilians counts for nothing when measured against the murder of Israelis and extermination of their state.
Hamas initiated the recent conflict with indiscriminate rocket fire into Israel, targeting towns and villages and aiming – consistent with its broad genocidal objective – to kill as many Israelis as possible. It pursued its attacks with its leaders, its fighters, its caches of rockets, its launchers and its command and control centers, imbedded in heavily populated areas of Gaza, amid civilian houses and often within or in close proximity to hospitals, mosques and schools.
Hamas is thus doubly guilty of crimes against humanity as conceived in international law, guilty both in its targeting of civilian populations and in its use of civilian populations as human shields. (Regarding the former, even the Palestinian representative at the UN Human Rights Council acknowledged earlier this month that “[t]he missiles that are now being launched against Israel – each and every missile constitutes a crime against humanity whether it hits or misses, because it is directed at a civilian target.”
Israel, in turn, is faced with the choice of simply tolerating the onslaught, resigning itself to a large majority of its population living under the threat of recurrent rocket attack and forced repeatedly to flee to shelter or to spend hours in safe rooms, or of responding and attacking Hamas in an effort to end the threat. No nation would choose the former.
Any honest observer would acknowledge that Israel, unlike its enemies, does not intentionally target civilians. Moreover, in its targeting of Hamas operatives and assets, it goes to unique levels to avoid civilian casualties. This includes telephoning and leafleting civilians, and taking other measures as well, warning them to leave areas about to be struck. Israel does so despite the fact that it is thereby giving advanced notice to those it is targeting. Commonly, Hamas urges their human shields not to act on the warnings but to stay where they are, and the civilians, either out of devotion to Hamas or out of greater fear of Hamas than of the Israelis, do not leave. Israel also frequently aborts attacks, even on high-level Hamas military personnel, when civilians are nearby. Hamas sees itself as winning whatever Israel does: If Israel aborts attacks or gives sufficient warning so that operatives can escape and assets be moved, Hamas gains by maintaining its war machine. If Israel attacks despite the presence of civilians, Hamas can cynically use the death of innocents as propaganda tools against Israel and will have willing accomplices among the world’s political leaders and media outlets to promote its propaganda message.
At times, of course, Israel does err in a military strike, as is inevitable in warfare. It may have faulty intelligence about who is at a location. It may, rarely, mistake innocents for combatants (and Hamas combatants do not wear uniforms, largely to be able to blend into the civilian population and make it more difficult for Israel to distinguish them). Its ordinance may misfire and land somewhere other than the intended target. It may hit depots that contain much more explosives than anticipated and set off extensive secondary explosions that engulf innocents.
But while Israel’s critics may at times latch onto errors of this sort, particularly if their tragic consequences provide, for Hamas propaganda, good photo opportunities, their accusations of disproportionality against Israel rest more broadly on the point of Palestinian casualties far exceeding in number Israeli victims.
Again, however, the issue of proportionality in terms of international law refers not to numbers but to the obligation not to take military action when the likelihood of civilian casualties outweighs the military significance of the target.
Yet, since Hamas so thoroughly imbeds its personnel and materiel within civilian populations, it is inevitable that – in situations where Israel is able to defend its own population despite intense and indiscriminate attack, as in the current conflict with use of the Iron Dome system – Palestinian casualties will be much higher than Israeli casualties. The accusation of disproportionality based on numbers of dead and injured routinely leveled against Israel, despite its efforts to minimize the harming of civilians, becomes then essentially an argument that there is no Hamas military asset Israel can target that justifies the endangerment of civilian lives.
It becomes, in effect, an argument that Hamas should be free to pursue its genocidal campaign against Israel without Israel being allowed to defend itself.
The disproportionality accusation is ultimately an argument in support of the destruction of Israel. This is the ultimate thrust of, for example, British Deputy Prime Minister Nick Clegg’s accusing Israel of “a disproportionate form of collective punishment,” and complaints of Israel’s use of disproportionate force by the prime ministers of Belgium and Finland, and the declaration issued by the EU that Israel “must act proportionately,” with its implication that Israel has not been doing so, and the promotion of such indictments by myriad voices in the world’s media.
To be sure, many such accusations are accompanied, at least in the political arena, by criticism of Hamas for its rocket attacks. Nick Clegg’s statement is certainly different in tone from that of his fellow Liberal Democrat MP, David Ward, who wrote that if he lived in Gaza he would likely join in Hamas’s crimes against humanity by firing rockets targeting Israeli civilians. But any accompanying criticism of Hamas is little more than pro forma when Israel is, in effect, being taken to task for any effort to strike back at her attackers and end the onslaught against her. The thrust of the disproportionality argument is to deprive Israel of effective self-defense and is a display of moral perversion on the part of its purveyors.
Kenneth Levin is a psychiatrist and historian and author of The Oslo Syndrome: Delusions of a People under Siege.
Don’t miss Dr. Anna Geifman on The Glazov Gang this week discussing “Life in Israel Under Siege,” “Who is Killing Palestinian Children?”, and much more:
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