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Gaza and the Law of Armed Conflict

While much of the world engages in hand-wringing, placard-waving, teeth-gnashing, and rocket-launching over Israel’s “disproportionate” response to Hamas attacks from Gaza, it’s worth looking at what the doctrines of “proportionality” actually say.

Making the rounds is a two-year old quote from Lionel Beehner’s paper for the Council on Foreign Relations in which he summarizes the principle of proportionality as laid out by the 1907 Hague Conventions. “According to the doctrine, a state is legally allowed to unilaterally defend itself and right a wrong provided the response is proportional to the injury suffered. The response must also be immediate and necessary, refrain from targeting civilians, and require only enough force to reinstate the status quo ante.”

The precise wording of the doctrine can be found in Article 51, not Article 49 as Beehner writes, of the Draft Articles of the Responsibility of States for Internationally Wrongful Acts. “Countermeasures must be commensurate with the injury suffered, taking into account the gravity of the internationally wrongful act and the rights in question.”

This is vague and open to interpretation, as Beehner admits. And it’s further complicated by the fact that the doctrine was laid out at a time when war was fought between sovereign states with standing armies rather than asymmetrically between a sovereign state and a terrorist gang.

Proportion, as defined by Beehner and the Hague Conventions, is impossible between Israel and Hamas. The Israel Defense Forces are more professional, competent and technologically advanced than Hamas and will inflict greater damage as a matter of course. And Hamas’s war aim is entirely out of proportion to Israel’s. Israel wants to halt the incoming rocket fire, while Hamas seeks the destruction or evacuation of Israel.

Beehner’s proportionality doctrine is therefore unhelpful. Each side’s ends and means are disproportionate to the other. And nowhere in that doctrine are casualty figures or the intent of the warring parties factored in.

In any case, no war has ever been fought tit for tat, and the Hague Conventions doesn’t say any war should be. The American response to Japan’s attack on Pearl Harbor went well beyond sinking an equal number of ships in a Japanese harbor, for instance. And European Jews certainly were not entitled to execute six million German civilians after the Holocaust.

The proportionality doctrine spelled out here is really only useful up to a point. “It’s always a subjective test,” Beehner correctly quotes Vanderbilt University Professor Michael Newton as saying. “But if someone punches you in the nose, you don’t burn their house down.” That much most of us can agree on. Israel should not – and will not – implement a Dresden-style fire-bombing of Gaza City in response to Qassam and Grad rocket attacks.

So aside from the obvious, we’re wading into murky territory that could be debated forever. Another doctrine of proportionality, though, clearly applies to this war, and it’s found in the Law of Armed Conflict.

The Law of Armed Conflict “arises from a desire among civilized nations to prevent unnecessary suffering and destruction while not impeding the effective waging of war. A part of public international law, LOAC regulates the conduct of armed hostilities. It also aims to protect civilians, prisoners of war, the wounded, sick, and shipwrecked.”

Proportionality, in short and according to the law, “prohibits the use of any kind or degree of force that exceeds that needed to accomplish the military objective.”

In other words, if a surgical strike is all that is needed to take out a Grad rocket launcher, carpet bombing the entire city or even the neighborhood isn’t allowed.

Hamas is still firing rockets; therefore, the IDF is not using more force than necessary to disrupt the firing of rockets. Israel, arguably, is using less force than necessary. And the IDF, unlike Hamas, does what it can to minimize injury to civilians. “Militants often operate against Israel from civilian areas,” the Associated Press reported last week. “Late Saturday, thousands of Gazans received Arabic-language cell-phone messages from the Israeli military, urging them to leave homes where militants might have stashed weapons.” Israeli commanders are even warning individual Hamas leaders that their homes are on the target list so they can vacate the premises in advance.

It’s also worth looking at the doctrine of distinction, which Israel follows while Hamas does not.

Distinction, according to the Law of Armed Conflict, “means discriminating between lawful combatant targets and noncombatant targets such as civilians, civilian property, POWs, and wounded personnel who are out of combat. The central idea of distinction is to only engage valid military targets. An indiscriminate attack is one that strikes military objectives and civilians or civilian objects without distinction. Distinction requires defenders to separate military objects from civilian objects to the maximum extent feasible. Therefore, it would be inappropriate to locate a hospital or POW camp next to an ammunition factory.”

Hamas violates this doctrine in two ways at once. Its fighters launch Qassam, Katyusha, and Grad rockets into Israeli civilian areas, and they fire those rockets from inside Palestinian civilian areas. Both are prohibited by the Law of Armed Conflict.

The law does not, however, prohibit Israel from striking legitimate military targets in civilian areas. “Although civilians may not be made the object of a direct attack, the LOAC recognizes that a military target need not be spared because its destruction may cause collateral damage that results in the unintended death or injury to civilians or damage to their property.”

Hamas, then, is legally to blame for all, or nearly all, injuries and deaths of both Israelis and Palestinians.

I shouldn’t even need to point out that Hamas is not allowed to target civilians with rockets, but I’ll cite the law anyway. “The LOAC protects civilian populations. Military attacks against cities, towns, or villages not justified by military necessity are forbidden. Attacking noncombatants (generally referred to as civilians) for the sole purpose of terrorizing them is also prohibited.”

Concern for the suffering innocents of Gaza – and all children of all nations are innocent – is well, good, and proper. And whether Israel’s operation in Gaza will turn out to be prudent, wise, and productive is yet to be seen. But either way, and at the end of the day, Israel’s rules of engagement comply with the laws of war forged by civilized nations, while nearly every one of Hamas’s military tactics are war crimes.


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