During recent discourse there has understandably been a great deal of emotion and distress infusing the language used. Our hearts break for the Israeli and Gazan victims of this conflict and that is how it should be. Hopefully this will drive us to donate to humanitarian relief and to combine as an international community to put an end to the Hamas, Hezbollah and Iranian threats against Israel. Hopefully also will lead to a renewed effort to get the peace process going regarding Israel and the Palestinians.
Some of the current discourse in this conflict has contained references to the Law Of Armed Conflict (LOAC). It is extremely important that we properly understand what that law is, what the ‘terms of art’ really mean and how they should be applied to the current circumstances of the Israel- Hamas conflict (there are other groups in Gaza allied to Hamas who also engage in violent action but the term Hamas will be used as shorthand for them).
We should understand firstly that LOAC is built on the presumption that in armed conflict there will be a necessary and lawful use of weapons that will kill enemy combatants, destroy legitimate physical targets and that there will be times when civilian casualties may also be caused, associated with attacks on combatants. This is the brutal reality of LOAC and it is why we always have to focus on preventing armed conflict in the first place.
Since WWII there has been an additional dimension of LOAC that does seek to support the goal of conflict avoidance. It is known as the war crime of aggression. This is directed at the leaders of States, such as Vladimir Putin, and is aimed at preventing the initiation of war, but does not impinge on the inherent right of self-defence. When armed attack is initiated by a terrorist organisation such as Hamas that does not qualify as a State, then the attack is simply a crime. Attacks by non-State actors may be responded to or prevented by a State defending itself if there is no State in control of the territory from which that threat is emanating which is able or willing to prevent such attacks.
In the management of the violence permitted in Armed Conflict, rules are laid down to attempt to minimise civilian and property damage. All targeting must be directed at combatants or assets that are related to military necessity, which will contribute to defeating the combatant forces of the enemy. Attacks which might be expected to result in loss of civilian life or injury to them, cannot be carried out if these losses would be excessive in relation to the concrete and direct military advantage anticipated. This is the rule of proportionality.
There have been regular confrontations between Israel and Hamas since Hamas seized total control of the territory in 2007, ousting and dismantling all Palestinian Authority institutions and the security sector. The objectives of Hamas are clearly spelled out in it’s 1988 Covenant. The essence of the Covenant is an agenda for violent action including the complete destruction of the State of Israel and the annihilation of all Jews. These objectives are contrary to LOAC and any act taken in prosecuting those objectives is a war crime. The most regular feature of the execution of that agenda has been the firing of large numbers of rockets towards Israel as well as whatever terrorist acts it can inflict by personnel infiltrating Israel.
The essential nature of the rocket attacks is that they are unguided weapons, incapable of accurate targeting. There is in fact no attempt to direct these weapons at military targets. The only intention in firing these rockets is that they target Israeli civilians in the population centres within range, completely indiscriminately. This is a violation of one of the most basic laws of LOAC. Every rocket fired from Gaza is therefore a violation of LOAC. Other clear violations by Hamas against civilians include, murder, torture, cruel or inhuman treatment, rape, taking hostages and using civilians as human shields, which is a standard tactic by Hamas. In relation to the devastating effects of the Palestinian Islamic Jihad (PIJ) misfire on the Hospital in Gaza it was the locating of the launch site so close to civilians and the hospital, and the launching of the rocket with the broad intent behind it that constituted a war crime.
One of the other considerations in evaluating the events of the conflict in relation to LAOC is the reliability and break down of the statistics cited by Hamas. Even if taken at face value, given that Israel is targeting Hamas capabilities and sites to facilitate a potential ground campaign and the destruction of Hamas, we are given no breakdown on how many of these casualties are Hamas combatants. In relation to the conduct of Israeli operations there are some key parts to the equation of evaluating their lawfulness. The first is that Hamas is an enemy who has avowedly declared it’s intent to destroy the entire state and the Jewish population, which is allied to, acts in coordination with and is armed and financially supported by Iran and Hezbollah. Hezbollah and their controlling masters Iran also share the objective of completely destroying Israel.
The strategic mission for Israel is to ensure its survival and so defeat and destroy efforts and capabilities aimed at inflicting that end. It is vital that Israel completely neutralise a threat from any flank that could otherwise be capable of destroying Israel acting alone or in combination, or weakening Israel to the extent that it will be vulnerable to annihilation. Being absorbed in a protracted urban conflict could seriously degrade Israel’s ability to respond to threats from other flanks. When the existence of the State is threatened the test of proportionality means more damage and civilian loss might be a necessary factor.
Israel is engaged against a combined Hamas and PIJ force of 55,000 heavily armed and well prepared combatants. They have spent 17 years and billions of dollars building 482 kilometres of underground facilities for command and control, manufacturing rockets and protection of their forces, infiltration into Israel to conduct attacks and as a means to fight the IDF having drawn it into Gaza so that they can conduct ambush, cut off and conduct surprise manoeuvre attacks. The scale of the use of offensive weapons against this threat must necessarily be commensurate. A good comparison is the Allied landings and campaign in Normandy. The allies confronted 50,000 Nazi troops at the landing and during the subsequent fighting cities like Cherbourg and Caen were completely devastated and 20,000 French civilians died.
What LOAC requires in this situation is that as many feasible precautions in attack as possible must be taken. The sort of precautions are spelled out as including care in verifying targets, selecting the means and methods of attack to minimise civilian casualties, and effective advance warning unless circumstances don’t permit. The warning provision is clearly aimed at giving the civilians the opportunity to move away from the danger area. This is also spelled out as a requirement in Article 58 of Additional Protocol I to the Geneva Conventions where it says that the parties to the conflict shall to the maximum extent feasible, “endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives”. It is standard procedure by responsible States to evacuate civilians or, encourage their evacuation if they are not in direct control of them, from a battle zone whenever possible. In fact Israel is in the process of evacuating it’s own citizens from northern Israel in addition to those who have been evacuated from the South.
It is most definitely a war crime to deliberately starve civilians in the direct control of a party to a conflict. The qualification to this relates to the rules regulating sieges. It is not a war crime if in the process of a siege operations against combatants, food shortages are caused affecting all those caught up in the siege. The requirement here is to offset that circumstance by encouraging and facilitating civilian evacuation and enabling humanitarian relief for civilians where possible.
Recent examples of similar operations, regarding which Australia has been a Coalition member, where civilian evacuation has been encouraged have been the Battles of Fallujah in 2004 and the Battle of Mosul in 2016-17 in Iraq. The practice is considered particularly standard in urban operations because of the problems of proximity to military objectives or to try to prevent an enemy like ISIS or Hamas from using civilians as human shields.
In the current situation in Gaza, Israel has resorted to warnings and has encouraged civilians to leave the danger area. It has adopted precautions to enable the civilians to make those movements to the south as safely as possible. There are major humanitarian considerations in doing so and this is an aspect where the international community and Egypt must ensure that these needs are catered for through the Rafah Crossing which Egypt controls. If the Israeli Defence Force (IDF) traverses ground that has remaining civilians then the operational precautions in attack will still be relevant and the primary responsibility to provide humanitarian support will devolve to them. It is acting contrary to LOAC for Hamas to discourage and prevent the civilian movement south in order to create a human shield and therefore a war crime. It would also make any international calls against such a movement complicit in an action contrary to LOAC.
The final point regards the issue of “collective punishment”. In the colloquial sense all Israelis and Gazans are being “punished” by the actions of Hamas and share the suffering generated by this conflict. As a matter of LOAC however it is not correct to say that the legal prohibition of collective punishment applies to the situation of Gazans at present. That LOAC provision relates specifically to persons, either Prisoners of War or civilians, who are in the direct control of a party to the conflict and who have penalties imposed on them for crimes or actions committed by another person or persons. What is happening now is that Israel is in the process of conducting a current major military operation to defeat a large scale threat across a large area. The actions it is taking are to be judged against the LOAC stipulations regarding targeting and precautions. The provision regarding collective punishment is not relevant in present circumstances.
The Hon. Dr Mike Kelly is a former Minister for Defence Material, former Australian Army Director of Army Legal Services and served with distinction in operations prosecuting war criminals in Somalia, Iraq and east East Timor and has written several books related to the Laws of armed conflict including; Peace Operations: Tackling the Military, Legal and Policy Challenges (1997) and Restoring and Maintaining Order in Complex Peace Operations: The Search for a Legal Framework (1999).
