6. Gaza 2018: (a)International Norms and the Gaza Conflict

From the previous analyses, what seems clear is that there were peaceful demonstrations as well as relatively small militant actions from the Palestinian side, although near the end of May the war escalated. In response to Israel killing three Islamic Jihad members in an observation tower watching a Palestinian trying to plant a bomb near the fence, the jihadists fired a total of 51 mortars in two volleys into Israel. One mortar got through the Iron Dome Defence to damage a kindergarten but no lives were lost. In return for the mortar fire, Israel resumed its bombing of Gaza positions.

Though these were unequivocally military actions, even in the Great March of Return, the vast majority of those killed or wounded by the IDF were not peaceful protesters. They were militants who tried to cut the barbed wire, destroy Israeli equipment and even breach the fence. Many were armed and many more attacked Israeli troops with fiery Molotov cocktails.

What happened on the Gaza border in the six weeks from 20 March until mid-May was a militant attack on the border against the background of large peaceful demonstrations, but none, not even the one on Nakba Day, was as large as projected by either side. Perhaps the leaflets dropped by Israeli aircraft warning that live fire would be used against those who came near the fence deterred many from showing up at the peaceful demonstrations. From the number of militants that participated, clearly militants were also deterred. But not entirely. Gaza militants continued their fiery kite attacks and resumed shelling Israel. Israel resorted to the use of airstrikes on command centres of the jihadists, not against the demonstrators or even the militants attacking the fence, but against military sites where Israel claimed mortar and machine gun fire had been used. Eventually, Egypt brokered a ceasefire.

This had been a war both in terms of the announced intent of the Palestinians, the militant attacks on the Israeli border and the IDF response. The applicable international law includes the rules governing just war. Israel was accused of using disproportionate force in repelling the militants, mainly because only 1 Israeli soldier was injured while 113 Palestinians were killed and many more injured. Many op-eds and statements went further and accused Israel of using lethal force to kill “unarmed protesters” since most of those killed were not carrying rifles.

The dispute was not focused on whether either side could be faulted under jus ad bellumrules, those governing the decision to go to war, as much as most countries might have disagreed with the Palestinian initiative in allowing militants as well as peaceful protesters to challenge the border. Given the political aims of either side, each side in its own eyes had legitimate reasons for resorting to militance.

For those of the persuasion that refugee return was a crucial goal for Palestinians, the means used in the militant attacks on the fence against a background of a peaceful demonstration seem to be justified by the principle of right intentions since, if refugee return is considered a legitimate political goal, then only military means seems able to achieve such a goal. The Palestinian effort, as far as Hamas is concerned, passes the test of a last resort. There is almost no likelihood of Israel agreeing to go out of existence. Neither Israel nor the Palestinians were fighting a war of aggression, that is a war extraneous to their own self-defence as a nation. And the only way the war can be fought to correct the alleged wrong done to them by the Zionists is a war to end the state of Israel and, by Israel, to defend the Jewish state, a war of self-defence.

The one criterion where the initiation of the war in 2018 by the Palestinians in Gaza might be considered as contravening the jus ad bellum rule is the one contending that war should only be resorted to if there is a high probability of success. Clearly the Palestinians had almost no chance of winning the war on the ground. However, wars these days are fought as much if not more on media as public theatre to win hearts and minds over to one’s cause. And given the results, Hamas can be recognized for winning on that battlefield.

Dialogue is not an alternative to war for either side since the aims of each party are absolutely incompatible. Dialogue might lead to limited truces but it is highly unlikely to end the resort to warfare if the aims of each side remain in place. Similarly, Israel does not engage in all out warfare against the Palestinians in Gaza because its aim is not victory over Hamas let alone the Palestinians, but the prevention of physical harm to Israeli territory and personnel.

However, most of the controversy is over the application of jus in bello rules, those governing the conduct of war. Many commentators questioned the proportionality of the Israeli response to the demonstrations and even the militant attacks on the border fence. Israel defended itself and insisted that, without the use of sufficient force at the security fence, thousands, even tens of thousands, would have poured through the breach and the result would have been both many Israeli casualties and many more Palestinian ones than the 100+ that were killed over the 6-7 weeks.

The issue of proportionality is not about the absolute numbers killed, though the criticisms have largely been based on that. The rule of proportionality demands that civilians not be killed as collateral damage in setting violence against violence. The exact proportion of civilians allowed to be killed without infringing just war norms as a ratio to militants has never been defined and, in any case, is very context dependent. On the surface, if about 80% of those killed were militants, this would appear to fall well within the range and proportions permitted under just war theory.

But though those killed may have been militants, many of them killed were not armed. In that case, should they be classified as civilians? Israel argues that their actions and intentions made them legitimate targets. Many humanitarian and human rights organizations claimed that intentionally killing unarmed persons on the other side of a conflict is a war crime. If the Jewish maid in the movie Exception had actually managed to kill Himmler, would she have been persecuted for a war crime? One would hope not.

The issue is not whether the militants were carrying arms at the time they were killed, but whether they were actively involved in a violent struggle with the opposition. Did each side take precautions to minimize the chances of innocent civilians being killed? Note that Palestinian demonstrators peacefully demonstrating, even if for a war aim, were innocent civilians. They become legitimate targets only if they are engaged in the violent struggle against the opposed forces. Trying to cut a border fence with armed militants behind you ready to plunge through that fence is normally considered part of an armed conflict.

Others accuse the Israelis of committing war crimes because of the type of force used, in this case, live ammunition that killed unarmed militants and some civilians, and tear gas that made many Palestinian peaceful demonstrators sick because the prevailing winds tended to blow the gas over the tent camps. Further, those who accuse Israel of war crimes insist Israel did not sufficiently explore alternatives to the use of live ammunition. After all, every Palestinian killed died on the Palestinian side of the fence. The fence was breached by very few. Israel was accused of breaking the norm of “last resort” in the way it resisted the Palestinian attacks on the fence. Domestic police use tear gas to disperse peaceful demonstrators.

In the context, however, the use of tear gas was imprecise. Also, gas drifted onto peaceful protesters. There was relatively little use of rubber bullets because of the range required. To control rioters, the “skunk” trucks used in the West Bank that spout foul-smelling water known as “skunk” that Israel regularly uses were also not employed because they too lacked the range. Besides, those trucks were not armored.

However, Israel unsuccessfully tried to use water cannons in the first stages of this conflict, but that did not seem to work very well. Using remote model aircraft with knives to cut down burning kites or balloons with Molotov cocktails is certainly permissible as is the use of those kites and balloons as part of warfare by the Palestinians. But when they are aimed at civilians and civilian properties? So too were the use of AK-47s and grenades a legitimate use of arms in the war between Israel and Hamas-led Palestinians. Israel claims that it used just enough force to ensure there was no breakthrough otherwise the casualties would have been much higher. If that anticipation was reasonable, then, arguably, both the wire cutters and the armed Palestinians did “pose an imminent danger to the lives of others.”

The one war crime that Palestinians are repeatedly accused of by defenders of Israel is of using human shields behind which the militants attack the Israeli forces. Alan Dershowitz calls this “the dead baby strategy.” (“Why Does the Media Keep Encouraging Hamas Violence?” 17 May 2018)

However, contrary to his assertion, and with no presentation of evidence, the accusation of Palestinians using human shields in the Gaza 2018 conflict seems misplaced, at least in this conflict. It is a false claim made by Israel and by Israeli defenders in the diaspora. First, there were very few cases of Palestinians being able to attack Israeli troops. Further, though there may have been the odd case of a possible use of a human shield, such as when a seven-year-old neared the fence (she, fortunately, was not shot), but no evidence has been provided that she was deliberately sent to approach the fence to serve as a shield for militants following behind her. In general, there does not seem to be a prima facie case that the Palestinians employed human shields during the 2018 conflict.

International and state leaders had urged restraint on both sides with most of the advice aimed at Israel. I too may believe that more restraint might have been attempted, but advocating less restraint does not make the use of less restraint in itself a war crime. The issue is whether a state or a belligerent is exceedingly unrestrained in its approach to dealing with the threat. Given Israeli warnings beforehand through dropped leaflets, given Israel’s unequivocal warnings about its red lines for the employment of the use of force and given the relatively low numbers killed in a battle that went on for 6-7 weeks, even though lethal force was used, far more by the Israelis than the Palestinians, for neither side does there seem to be much evidence that either belligerent used lethal means outlawed by the laws of war. Disagreements over the degree of force used and the rationale for it does not in itself mean that a war crime was committed.

There are recent clear and unequivocal incidents of war crimes committed by states such as in the American Vietnam War, the Soviet War in Afghanistan, the actions of the Serbs in the war in the former Yugoslavia, the use of banned chemical weapons by Syrian forces against its own people and certainly by the Islamicist terrorists who deliberately target civilians. However, there is no situation or actions committed by either side as a pattern in the 2018 Gaza conflict that seems to merit a general charge, though there may be individual cases justifying such a charge. Further, since in both cases the actions were considered as efforts at self-defence by both parties of their interests and war aims, the actions of neither the Palestinians nor the Israelis even came close to a breach of international law as when Trump ordered a militant response to the gas attacks of the Syrians without the authority of the Security Council. Sometimes breaches of international humanitarian law are defended on the basis of higher humanitarian principles.

Back to the issue of restraint. Just war norms demand that, given the military objectives, only sufficient force should be used to accomplish the military goals. Some commentators misconstrue this as requiring that minimum force be used to prevail, but that is not accurate. The word is “sufficient” not “minimum.” And interpretations by military strategists legitimately vary over what sufficient force is required. For the use of less force may be sufficient to prevail, but it may, on the other hand, have a much greater risk of higher casualties, particularly on one’s own side. There is no objective standard for defining restraint but only the guideline for commanders in the field who must weigh risk against the probability of success. This does not open the door to savage and unrestrained use of violence. Such situations demand careful judgement in the use of the tools of violence and the extent they are employed.

In sum, I may adamantly disagree with the goals of Hamas. Co-founder Mohamoud al-Zahar described the tactics accurately: “This is peaceful resistance bolstered by a military force and by security agencies.” The words were carefully chosen. Bolstered in this case meant using militants in a separate operation to attack the fence but the main effort was a large peaceful demonstration. Neither the peace cover nor the militant attacks attracted as many participants as planned and expected.

I also may adamantly criticize Netanyahu and the Israeli government for the tactics they employed to combat Hamas and the jihadists, but there seems little if any justification for a general prima facie case of commission of war crimes against Israel. This is true with respect to either side, certainly with respect to the justifications for recourse to war given the objectives of each side or the observation of moral boundaries within which each side operated.

One side or the other may have come too close to those boundaries of norms for my sensitivities in the conduct of the war, but neither breached those boundaries in general. The casualties, however distasteful, however upsetting, do not seem to be intentionally evil and outside the international moral code on the conduct of war, though some individual incidents require further investigation. The military means used by Israel may have been incommensurate for my tastes (and my proneness as a peacenik), but they do not seem to have been incommensurate with the threat faced given the risks of a reliance on the use of less force. Israel was not intentionally targeting civilians in general. Gazans were not resorting to their older tactics of using Katyusha rockets against civilian targets. Though Israel may have lost the media war, and lost it by a wide margin, the country may have pushed Hamas into finally adopting a peace strategy.

Time may tell.

 

With the help of Alex Zisman

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