Language and law in Israel's war against Hamas

In armed conflict, fact and truth are often trumped by emotion. Sober analysis gives way to crude comparisons of body counts that disregard the fighting methods of the combatants or their differing regard for human life. Graphic images of death are posted on social media with little understanding of the true story behind them, in an attempt to compel us to condemn one side and beatify the other. The language of international law is misappropriated to confer emotional condemnations against one side with the false veneer or impartial analysis.

Take for example, the accusation that Israel’s response to Hamas is “disproportionate”. British Deputy Prime Minister Nick Clegg made the claim in a recent opinion piece, in which the Liberal-Democrat leader also urged Israel to negotiate with Hamas, an entity constituted for the sole purpose of bringing about Israel's demise.

New York Times columnist Nicholas Kristof made the same accusation, relying on a simplistic comparison of civilian casualties. “One principle of international law is proportionality of response,” Kristof said, “but so far Israel has lost three civilians, Gaza has lost 1033.”

Proportionality in armed conflict has nothing to do with equality of casualties, or even the equality of firepower. Under the Fourth Geneva Convention, proportionality weighs the direct anticipated military advantage of a strike against the expected incidental loss of civilian life.

The “anticipated military advantage” of Israel’s military actions in Gaza is clear. It is the removal of the direct threat posed to the lives and wellbeing of 8 million Israeli citizens (Jewish and Arab) by Hamas rocket attacks and the new and arguably greater threat posed to Israeli civilians by an elaborate network of tunnels from Gaza which lead directly to towns and villages on Israel’s sovereign territory.

The discovery of long, sophisticated underground passages, kilometres in length, running from under homes in neighbourhoods like Shejaiya in Gaza and ended underneath the homes and dining halls of Israeli communal farms and villages in the south, demonstrates the military advantage, indeed necessity, of Israel striking against the tunnels. The enormity of the threat posed by the tunnels was underscored by evidence that Hamas had been planning an attack involving hundreds of fighters emerging from such tunnels to kill and kidnap Israeli civilians on an unprecedented scale.

To test proportionality simply by comparing civilian casualties on both sides produces a rather perverse interpretation of a clear and unambiguous concept of international law. It suggests that Israel would be more justified in striking Hamas targets if only Hamas were better at killing Israeli civilians.

As the chief prosecutor of the International Criminal Court, Luis Moreno Ocampo, explains: “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]."

Commenting on Israel’s efforts to reduce civilian casualties, the former commander of British Forces in Afghanistan, Colonel Richard Kemp, concluded that “everything the Israeli Defence Force 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".

A further pseudo-legal accusation against Israel is that it “collectively punishes” the Palestinians for the crimes of Hamas. Labor’s Anthony Albanese, recently made this claim.

The crime of collective punishment involves the deliberate and conscious imposition of penalties on innocent people as a reprisal for the acts of others. (Article 33 of the Fourth Geneva Convention). For example, during the Nazi occupation of Poland, the Germans maintained a policy of shooting up to 400 Poles, randomly selected, as a reprisal for every German killed. It is a concept often confused with the inadvertent causation of civilian casualties and damage to civilian structures in times of armed of conflict.

It is without question that civilians have suffered during this conflict, as in all armed conflicts. However, there is absolutely no evidence to suggest, and ample evidence to disprove, that Israel has sought deliberately to impose penal or retributive punishments on people it knows to be innocent.

Throughout the conflict, Israel has enacted a series of measures to minimise and alleviate the suffering of civilians as far as possible.

Israel has operated a temporary hospital for Palestinians on the Israeli side of the Erez border crossing in co-operation with the Red Crescent. Israel has also kept open the Kerem 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 despite the intensity of the fighting 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 months or even years later once the facts have been known and reputations have suffered permanent injury. Immediately after Operation Cast Lead, 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 and admitted that his conclusions were wrong.

Truth and justice seem like ethereal concepts when people are dying and war rages. Yet only by separating fact from fiction and dispassionate legal analysis from propaganda can we begin to move beyond conflict and towards resolution.

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