Thursday, February 5, 2009

Norm Geras on Israel's "War Crimes": One-Eyed in Gaza

From Norm Geras (condensed version)

One-Eyed in Gaza

This is a post about war crimes in Gaza and the widespread public outrage over them directed at Israel... 
 Since it is a long post, I begin by providing a brief map of what is to follow.

In Part 1 I present a sample of the angry public reaction to Israel's alleged war crimes in Gaza, as gathered mostly from the British liberal press. In Part 2 I consider the source of this anger, pointing to what may be thought to be the most likely one - the great and visible suffering caused by Israel's recent military action. I argue that the hypothesis that this was the cause of outrage against Israel is not decisively rebutted by a standard argumentative move made by Israel's defenders: namely, that if Israel was guilty of war crimes, then so too was Hamas, for sending rockets against Sderot and other civilian centres. In Part 3 I go on to show that the claim that anger at Israel was due, or mainly due, to the suffering caused by its military action is open to question nonetheless. If we are examining this issue under the rubric of responsibility for war crimes, then public outrage about them is skewed when directed, as it widely has been, exclusively at Israel. In Part 4 I draw three conclusions from what has gone before. The first of these concerns the implication of the attitudes explored here for the future progress of international law. The second bears on the present condition of the Western liberal-left. And the third is about the alarming worldwide growth of anti-Semitism.

Part 1: Israel Accused.

I have waited till now to set out my thoughts on this subject, because when the air was thick with fury and denunciation, charge, counter-charge and denial, the chances of being calmly heard were small. Perhaps they still are. In any case, no one who was paying attention to the recent conflict in Gaza will have missed the fury and the denunciation.

Every day during that conflict the list of Israel's accusers lengthened. An international group of lawyers and jurists were to 'ask the International Criminal Court to probe alleged "war crimes" committed by Israel during its offensive in the Gaza Strip'. An editorial in the medical journal The Lancet held Israel responsible for 'large and indiscriminate human atrocities'. In the House of Commons an MP called Israel's leadership 'mass murderers and war criminals'.


Part 2: The suffering of the Palestinians.

That, then, gives an idea of the furious reaction to Israel's invasion of Gaza. And I think I may say without fear of contradiction that it would be easy to extend the above sample with many more such expressions of opinion. It is enough for my purpose, however. The most obvious answer to the question why there was such anger at Israel is that it was a natural response to so many Palestinian deaths, to the sight of so much suffering. One reaction here by defenders of Israel has been to say that the IDF's assault on Gaza was a response to the thousands of rockets targeted on Israeli population centres, and that the firing of these rockets is itself a war crime, without any question. To protest, selectively, at Israel's war crimes and not at those committed by Hamas betokens the influence of other impulses than concern about human suffering.

There is a short answer to this. It was exemplified in a post by another CiF blogger, who wrote (in the context of war crimes liability):

It is true that Israel has suffered from Hamas rocket attacks. Insofar as these attacks indiscriminately target civilian areas, Hamas would be guilty of war crimes under the Geneva Conventions of 1949. Yet, in the past eight years, Palestinian rockets fired from Gaza have killed around 20 people in southern Israel. Israel's response is neither necessary nor proportionate.

At the time of writing, after 23 days of bombardment, more than 1,300 Palestinians have been killed by Israel, including 410 children and 104 women, while 5,300 are seriously injured, of whom 1,855 are children and 795 women.

The same point was made a few days later by Martin Bell, though in his case not as part of a discussion of war crimes, but in criticizing the BBC for declining to broadcast the Disasters Emergency Committee appeal. He said:

There may be some who believe that the suffering of the people of Gaza was balanced, and even justified, by the damage and casualties caused by Hamas rockets in southern Israel. But when the ratio of dead between one side and the other stands at more than a hundred to one (excluding the IDF soldiers killed by friendly fire), the arithmetic tends to undermine the argument.

People might be outraged at Israel's war crimes (real or alleged), therefore, yet less exercised by those for which Hamas was responsible in targeting rockets on Israeli civilians, just because of the disparity of suffering in the two cases.


The outrage against Israel, then, is straightforwardly explained. It is due to the scale of death and suffering that Israel's war crimes in Gaza have brought about. There is no puzzle here.

But look again. In order to see why this explanation of public outrage at Israel is problematic and unbalanced, you must look, not at the war crimes committed by Hamas from Gaza, but at the war crimes committed by Hamas in Gaza. To this I now turn.

Part 3: The war crimes of Hamas.

If you look in the direction I have just suggested, what you see is that Hamas have been fighting in a way that endangers civilians - and I mean Palestinian, not Israeli, civilians. Those with a genuine concern for human rights have not failed to notice this. Thus, in calling for an 'impartial international investigation into allegations of serious violations of the laws of war' in the Gaza conflict, Human Rights Watch referred upfront to violations 'by Israel and Hamas'; it called - as none of the voices I have surveyed above, and the general chorus of which they are but a small sample, did - for an investigation into 'alleged violations by both sides'.

This is a matter of some importance. For it begins from a reality of the conflict which Israel's accusers have preferred to overlook, namely, that the commission of war crimes, so far from being incidental to the way Hamas fights, is integral to it; Hamas fights from within the civilian population it purports to, and to some degree does, politically represent. It fights so that its enemy, Israel, can only with maximum difficulty hit military targets - Hamas fighters or weapons or installations - without at the same time endangering Palestinian civilians. Israel is obliged, nonetheless, by the laws of war to take every step it reasonably can not to jeopardize these lives. My point is not to acquit it of that responsibility. It is, though, to emphasize that Hamas has exactly the same responsibility, one which it flouts by the very methods of self-defence it uses, methods putting 'its own' civilians at risk and leading to regular violations of the laws of war.

How could the angry chorus denouncing Israel, and only Israel, have missed this? It is unambiguous in the laws of war what Hamas's responsibilities are. Article 28 of the Fourth Geneva Convention states:

The presence of a protected person may not be used to render certain points or areas immune from military operations.

Article 51/7 of the Protocol Additional to the Geneva Conventions (adopted in June 1977) specifies:

The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations.

Does Hamas respect these constraints? The evidence from press reports suggests that they do not. As in Part 1, I offer merely a sample of such evidence here. There are reports like this one (also here and here) of Hamas using houses occupied by civilians as cover from which to fire on Israeli troops:

Palestinian civilians have accused Hamas of forcing them to stay in homes from which gunmen shot at Israeli soldiers during the recent hostilities in Gaza, the Italian newspaper Corriere della Sera reported Thursday.

And there are reports of their using civilian facilities for the launching of rockets:

Every day, the Hamas rocket teams sneak through the fire and fury of Gaza to launching sites concealed in tunnels, trucks, rooftops and courtyards of schools and mosques.

In similar vein, there's this from the New York Times, quoting a 'man close to Hamas':

They have more experience and they have training from Syria and Iran. They helped them rethink their strategy. They fired rockets in between the houses and covered the alleys with sheets so they could set the rockets up in five minutes without the planes seeing them. The moment they fired, they escaped, and they are very quick.

Then there's the forcible use of farms as rocket launching sites:

Members of a Gaza family whose farm was turned into a "fortress" by Hamas fighters have reported that they were helpless to stop Hamas from using them as human shields.


[H]e went on to blame Hamas fighters for causing his predicament. Israeli soldiers had bulldozed his orchard of orange and olive trees, he said. "The Israelis destroyed my orchards because Hamas was using the cover to shoot rockets.

"I asked them to stop once and was told they would shoot me in the legs as an Israeli collaborator if I asked again."

And ambulances (also here):

Palestinian civilians living in Gaza during the three-week war with Israel have spoken of the challenge of being caught between Hamas and Israeli soldiers as the radical Islamic movement that controls the Gaza strip attempted to hijack ambulances.

And hospitals.

How, I repeat, could the angry chorus denouncing Israel, and only Israel, have missed this? It is not some arcane mystery but information available to anyone who wants it. Irwin Cotler, a former Canadian justice minister and professor of law at McGill University, calls the fighting tactics of Hamas a case study in the violation of international humanitarian law:

A second war crime is when Hamas attacks [from within] civilian areas and civilian structures, whether it be an apartment building, a mosque or a hospital, in order to be immune from a response from Israel... Civilians are protected persons, and civilian areas are protected areas. Any use of a civilian infrastructure to launch bombs is itself a war crime.

Colonel Richard Kemp, who has been a senior military adviser to the Cabinet Office, says:

Hamas deploys suicide attackers including women and children, and rigs up schools and houses with booby-trap explosives. Its leaders knew as a matter of certainty this would lead to civilian casualties if there was a ground battle. Virtually every aspect of its operations is illegal under international humanitarian law - 'war crimes' in the emotive language usually reserved for the Israelis.

But lost it well and truly has been on many of Israel's denouncers, all those who have been able to see only war crimes committed by Israel but, on the very same field of battle, none of the crimes of Hamas. That suggests a different hypothesis is needed as to what has been the cause of public outrage over Gaza. It is not so much human suffering as such but human suffering in so far as Israel was responsible for it. The identical human suffering in so far as Hamas has been responsible for it - to this the denouncers seem to have been rendered blind. For it is no longer now a matter of weighing numbers of deaths and magnitude of suffering caused by Hamas's rockets in Israel against the suffering caused by Israel in Gaza. No, what we are looking at is a quantity of suffering in Gaza for which Hamas as well as Israel is responsible. By its methods of fighting Hamas virtually ensures that any military reaction from Israel will incur civilian casualties. I have already said that under the laws of war this does not clear Israel of the obligation not to deliberately target civilians or to put them recklessly in jeopardy. However, that obligation, of which Israel's one-sided critics are so well aware, rests just as squarely on the heads of Hamas, who regularly disregard it; and yet those critics somehow fail to see the obligation on the other side of the conflict or else lose their voices when it comes to saying something about its consistent violation.

It might be said here in defence of the one-sided critics that their stand is motivated by a belief that Hamas's cause is a just one whereas Israel's is not. It's not a view I share, but I'll let that pass because it isn't relevant to the issue. The laws of war, and the requirements of ius in bello (governing how one fights), oblige not only those whose cause is, putatively, unjust but also those presumed to have justice on their side. The silence over the crimes of Hamas that have brought death and disaster on the Palestinians in Gaza - just as Israel's military campaign has - is the silence of rank prejudice. Twinned with a vocal outrage against Israel, it tells us that it is not only a concern for human suffering that has been at work; a plain political animus is also present, funnelling the outrage in one direction only.


In the outpouring of hatred towards Israel today, it scarcely matters what part of it is impelled by a pre-existing hostility towards Jews as such and what part by a groundless feeling that the Jewish state is especially vicious among the nations of the world and to be obsessed about accordingly. Both are forms of anti-Semitism. The old poison is once again among us.

Read the whole thing here: One-Eyed in Gaza



JR said...

Great post.
I agree with you 100%

JR said...

The "war crimes" were committed by Hamas!
shooting rockets into Israeli towns,sending suicide bombers to blow up schools and malls.
It is amazing to me, that there is so much confusion over who the terrorists are.