Right now we are hearing endless calls for Israel to obey humanitarian law in its war against Hamas. This comes most loudly from Israel’s detractors, along with the accusation that Israel is committing war crimes. They say that if Israel fails to uphold humanitarian law, the international community should not support its war effort and punish Israeli leaders.
A parallel call for Israel to follow humanitarian law comes from Israel’s allies and supporters. We know the war will cause massive suffering in Gaza, but the idea here is that if Israel follows humanitarian law we can watch this with a clear conscience. Humanitarian law can make Israel’s highly destructive war effort kosher. By following humanitarian law, Israel can morally and legally relieve itself of responsibility for Gaza suffering and put that entirely upon Hamas.
But what does it mean for Israel to follow humanitarian law in this context? Unfortunately, there is no clear answer.
Consider the principle of proportionality. This says that attacks even against military targets are only acceptable if anticipated harm to civilians is not disproportionate to the military advantage the attack gains. So we see in the news all the times accusations that Israel’s bombings of Gaza are disproportionate in that many innocent people are killed and much property destroyed in the effort to target Hamas’s rockets and leaders.
But proportionality is inherently subjective. Of course residents of Gaza feel that Israel’s air attacks are disproportionate to the harm caused by rockets. But what would be the perspective of a resident of Sederot, many of whose friends and family members may have been slaughtered on October 7th, whose home and neighborhood has been destroyed, and who is now sheltering on the opposite side of the country because no one can return to his community out of fear of future murderous incursions and continuous rocket fire? In that view the Israeli military may so far not be doing even one percent of what it should. That perspective is just as valid.
Everyone else can give an opinion about what’s proportionate. But why should someone in an NGO office in New York or Geneva decide this, let alone someone in London or Cairo watching BBC or Al- Jazeera news? The bottom line is that people who think trying to militarily remove Hamas from governing Gaza is the right and necessary thing for Israel to do will say that Israel’s attacks are proportionate. People who think Israel shouldn’t will say they’re not. That’s all.
But proportionality is always tricky. What about elements of humanitarian law that seem less subjective?
A second key humanitarian principle is that a military must take precautions to avoid harming innocent people. This usually means that in an effort to spare civilians, soldiers must take extra risks upon themselves. There are many ways that Israel claims to do this, but detractors say that these are either ineffective or not enough.
Consider one well-publicized example from last week- Israel’s warning that Gaza civilians living in the North should move South, initially within 24 hours, although that deadline seems to have been extended many times. This was ostensibly Israel suffering a delay in carrying out its war plans and revealing a bit of tactical information regarding where it planned to attack in order to at least in part discharge its obligation to help keep civilians safe by giving them an opportunity to flee.
This warning was angrily dismissed by Israel’s detractors. They claimed that it was at best useless, as there was no practical way the million or so residents of the Northern area could possibly all evacuate, let alone in such a short time. Many even went so far as to call the warning a war crime itself, as an attempt at the transfer or removal of the civilian population.
Fine. But in that view, what would a proper warning look like? Is Israel expected to give specific details as to exactly where it will attack from, and at what time? This would of course minimize the scope of necessary evacuation, but at the same time allow Hamas to move its fighters and their weapons not just from South to North, but from the South to the exact points where they can be best used against Israel, causing the Israeli military immense harm. Maybe Gaza residents genuinely believe that’s what humanitarian law calls for. I’m sure Israeli troops, along with their worried loved ones back home, don’t think so. Israelis may even believe that revealing that the ground assault was planned to start from the North rather than the South was too much.
As to the claim evacuating such a large number of people is impossible, how does anyone know? If the authorities in Gaza had made a good faith effort to comply with the warning, then said they are doing their best but need more time and Israel had gone ahead with its war plans anyway then this would make sense. But reports are that Hamas actually told its population not to evacuate at all and even took practical steps such as blocking roads to prevent citizens in the North from leaving. So if that’s the case, what’s the point in Israel giving warnings at all?
The bit about Israel’s warning being an attempt to transfer a civilian is merely an allegation. Israel denies any territorial interest in Gaza and says that after the war anyone who fled will be able to return. Accuse the Israeli government of lying if you want to, but who really knows the truth? And it should be noted that for many of the Arab governments protesting so vehemently that Palestinians should never leave their land so as not to create the possibility of population transfer, this conveniently serves their self- interest of enabling them to champion the cause of the Palestinian people without having to take in any refugees.
Bottom line: If you think Israel shouldn’t launch a ground assault into Gaza to begin with, you’ll also say Israel is not taking adequate precautions not to harm civilians. If you think a ground assault to remove Hamas is the right thing because Hamas is primarily responsible for the war, you’ll likely say that Israel has done everything required under humanitarian law to safeguard innocents and Hamas is to blame for their harm. Humanitarian law does nothing to bridge this divide.
What about the very bedrock principle of humanitarian law, the distinction between civilians and combatants? It is a crime to deliberately target civilians under any circumstances. Israel, of course, claims that it doesn’t do this. The Israeli military says that civilians harmed by its air strikes are the unfortunate victims of being too close to military targets, or harmed by accidents or mistakes.
If you want, say Israel lies. Believe that Israel deliberately attacked the Al- Ahli hospital on October 18th, even though Israel has evidence it was a misfired Hamas missile which the U.S. and other Western intelligence agencies support. Look at the vast civilian casualty toll and say this is impossible if Israel wasn’t bombing innocent people too. But Israel will point out that after the vast number of bombs and missiles it has fired, if it wasn’t taking great care not to harm civilians the death toll would be hundreds or thousands of times what it is.
To accuse Israel of deliberately targeting civilians one must claim to know what the Israeli military knows about its targets and what it intends to do. That’s a tall order for most of us whose information comes only from the evening news. And should there be a ground invasion, discerning civilians from combatants in an urban environment in which Hamas soldiers don’t wear uniforms and hide in homes will be exceptionally difficult.
Finally, there is the matter that Hamas has made it clear it has no intention of following humanitarian law at all. Its October 7th killing spree murdering over a thousand innocents made that obvious, not that its long and continuous history of firing rockets indiscriminately at Israeli population centers ever left any doubt.
Of course, that doesn’t excuse Israel of its humanitarian obligations. But there is a moral difficulty here that has to be addressed. How can we let Hamas complain that it is a victim of humanitarian violations while it continues to hold civilian hostages, fires rockets indiscriminately at Israel’s population, and celebrates murdering over a thousand innocent people?
Humanitarian law was developed to create a uniform standard of conduct for belligerents to follow. It’s supposed to be objective and applicable to all sides, regardless of who started the fighting or who’s right and who’s wrong. But right now, in this war, that just doesn’t work.
Some people believe the primary problem in the Israel- Palestinian conflict is ongoing Israeli occupation. That group will also claim that Israel is committing war crimes in Gaza, and they have facts, reasons, and justifications to back it up. Others believe the primary problem is Hamas, which refuses any sort of peace because its only goal is Israel’s destruction, and since Israel’s withdrawal from Gaza decades ago devoted all its resources to obtaining weapons to attack rather than better the lives of its citizens. These people can claim that Israel is going above and beyond humanitarian requirements, and they also have facts, reasons, and proof for their position.
Accusing Israel of violating humanitarian law, or praising it for adhering to the same, is therefore nothing more than propaganda. Accusing Israel of war crimes just means you blame it for the Israeli- Palestinian conflict. Defending Israel from those accusations just means you think the primary blame is on Hamas.
A Better Way?
So here’s a suggestion I hope both Israel’s supporters and detractors can agree on. Since arguing about whether Israel is following humanitarian law is useless, let’s try reminding else. How about reminding both sides that this war must someday end, and eventually Palestinians will have to accept Israel’s existence and Israel will have to make sure Palestinians have full political rights.
Anything which makes that harder to achieve dooms us all to yet more years or decades of bloodshed and is wrong. After Hamas’s thousand person murder spree and hostage taking atrocity, how is anyone in Israel ever going to support independence for Gaza? Hamas just reinforced the view that the residents of Gaza are out to kill every one of us and we can never ever live with them in peace.
If Israel’s military inflicts widespread casualty on Gaza’s population, it reinforces the view that Israel is not really fighting Hamas, but rather looking for an excuse to kill Palestinians in mass. It makes Palestinians believe Israel wants to wipe them out completely and take their land rather than make peace.
Let’s demand both sides’ military actions fall within this framework. Israel should by its deeds and not just its words make clear its war is against Hamas only and not the Palestinian people. Hamas must make clear its aspirations are only for the Palestinian territories and it is not fighting to destroy Israel. If we can just insist on that, we’ll accomplish more than trading accusations about humanitarian law can ever accomplish. We’ll be working together on the side of someday peace, as remote and far off as that may seem.