“Why did they bomb us?” is a new report published by Airwars, December 2021
Hamas, though it is not likely to ever accept it, must also bear
responsibility for the civilian deaths and injuries in Gaza. It was
they who begun the war after Israel did not meet its demands to withdraw
soldiers from Al-Aqsa and the contested community of Sheikh Jarrah.
Then prime minister Benjamin Netanyahu
had vowed to “respond with great force. We won’t tolerate harm to our
territory, capital, citizens, or soldiers. Whoever attacks us will pay a
heavy price,” he declared after Hamas launched its first round of
rockets.
Hamas has no qualms about locating its fighters and weapons caches in civilian areas, a point that the IDF and supporters of Israel
internationally are quick to make when the issue of Palestinian
civilian casualties is raised. And Hamas, for its part, is quick to use
civilian deaths, especially of children, for propaganda purposes. But
what does international law have to say?
International Humanitarian Law (IHL) considers the principle of
proportionality – the Israelis stand accused of excessive and
disproportionate use of force – and notes:
According to this principle, an attack is illegal if it is
expected to cause incidental loss of civilian life, injury to civilians,
damage to civilian objects, or a combination thereof, which would be
excessive in relation to the concrete and direct military advantage
anticipated.
So as regards, let us say, the destruction
on 15 May of the 11-storey building that housed the offices of Al
Jazeera and the Associated Press (as well as flats) because the Israelis
claimed it also housed Hamas “military assets” IHL is clear. This was
an attack excessive to any military advantage that the IDF could claim.
And it justifiably caused international outrage.
As well, Additional Protocol
to the Geneva Convention, articles 51 and 57 are clear as regards
civilians in war zones. Article 51, for example, reads in part:
The civilian population and individual civilians shall enjoy
general protection against dangers arising from military operations….
The civilian population as such, as well as individual civilians, shall
not be the object of attack. Acts or threats of violence the primary
purpose of which is to spread terror among the civilian population are
prohibited.
It is clear from figures compiled by the Israeli human rights NGO B’Tselim
that the IDF pays scant or no attention to international law and the
Geneva Convention Protocol. The statistics speak for themselves. Since
2000 and the start of the Second Intifada more than 10,000 Palestinians
have been killed of which more than 7000 have died in Gaza. The figure
for Israelis killed by Palestinians is 835. No death is acceptable and
every death is a tragedy but the disproportionality cannot be ignored.
However as long as Hamas and other violent groups fire rockets from Gaza, one of the most densely populated
places on earth and where at least 1 million of its 2.1 million
population are children, and Israel responds with disproportionate force
civilian casualties will remain terribly and unacceptably high. What
then can be done?
A thoughtful response
comes from the Israeli blogger Eliav Lieblich a lecturer at the
Radzyner School of Law, the Interdisciplinary Center (IDC) Herzliya. He
argues that unquestionably Hamas, by locating its militia and weapons in
civilian areas, bears responsibility for civilian casualties. But he
says that does not exclude Israel from its responsibility:
Under International Humanitarian Law (IHL), the fact that one
party violates its obligations – among them the obligation not to use
civilians as human shields – does not release the other party from its own obligations. Additionally, law prohibits “reprisals” against civilians,
which means that a party cannot break IHL rules that protect civilians
to try to compel the other party to cease its violation.
He posits that using the civilian shield argument to walk away from
responsibility is not only in violation of international law, it is
morally reprehensible. And he presents an alternative. The civilians in
Gaza should be seen for what they are: hostages. In a bank robbery, he
argues, it is not acceptable to take out the hostages along with the
robbers. And he concludes:
The lives of the civilians must remain a paramount concern for
the attacking force, whatever the responsibility of the other side.
Armed groups might be responsible for harm that they occasion to
civilians under their control. But to argue that this absolves the other
party from responsibility is to get both law and morality wrong.