The Law that is No Law: War Crimes in Gaza

Posted by Anthony Burke on August 6, 2014 in Human Rights, Israel & Palestine, War |One Comment

As I write, in the first week of August 2014, Israel is bombarding Gaza for the 24th day in a row. This war, named “Operation Protective Edge” by the Israeli government, has quickly become an intense global controversy. The war has provoked some important debate about International Humanitarian Law, the Just War doctrine, Israeli legitimacy and political culture, and the security both of communities in the region and in places that will be more broadly affected by the conflict. There is a massively lopsided death toll – whether we compare Israelis and Palestinians, or civilians and combatants – and enormous levels of grief, fear and human suffering. The war will further impoverish some of the poorest people on earth, and must raise grave concerns not only about the terrible human toll which it has taken, but its ricocheting  security impacts that could be felt for a generation.

There have been a range of thought-provoking articles in recent days, among them pieces by Michael Walzer, Richard Jackson, Piki-Ish Shalom, Alex Bellamy, Geoffrey Robertson, and by journalists Harriet Sherwood, Jonathan Cook, and the Israeli newspaper Haaretz. Yishai Schwartz has a rather more bizarre and truly disturbing line of reasoning, one that is strangely echoed by Walzer. (More on just war and counter-terrorism in a post to come; here I will focus primarily on international law).

Below I consider some interlocking questions about international law, just war, and the global ethics of security, drawing on some of the analysis in our recent book, Ethics and Global Security. I feel that, as important as it is to remind the parties to the conflict of their moral and legal responsibilities, the conflict exposes significant flaws in both Just War thinking and international law. While Hamas and the Israeli Defense Force can be condemned from within the categories of the Just War tradition and International Humanitarian Law (IHL), these two ethical/legal paradigms are failing to protect civilians caught up in the war or to provide adequate guidance that would help to prevent and resolve such conflicts and thus save many more lives.

If we take the structural human security of the people of Gaza as a prime concern, along with the wider, long-term security of Israel, the region and the globe – rather than merely Just War or IHL rules –  important new questions and perspectives open up. Does a judgment about the resort to force in this case need to consider the historical and political context dating back months and years? Are there better ethical systems that would prevent the conflict from escalating to such levels of horror, and preserve and sustain the security of all communities in the region? Can the concepts of distinction and proportionality, especially as codified in IHL, adequately protect non-combatants? Or are they mired in blood and failure, in tricks? Could they form a diaphanous shield of “virtual law” that enables its own abuse?

The devastation: international reaction

On 28 July the United Nations Security Council issued a unanimous Presidential Statement expressing grave concern about the humanitarian impacts of the war and urging it to end. It began by saying “The Security Council expresses grave concern regarding the deterioration in the situation as a result of the crisis related to Gaza and the loss of civilian lives and casualties” and “calls for full respect of international humanitarian law, including the protection of civilian population, and reiterates the need to take appropriate steps to ensure the safety and well-being of civilians and their protection.” In a Press Conference UN Secretary-General Ban Ki Moon was reported as saying:

While stressing that no country would accept the threat of rockets from above and tunnels from below, The Secretary-General said that at the same time, “all occupying powers have an international legal obligation to protect civilians.”

“I was deeply disappointed that dangerous hostilities resumed on Sunday – but since Sunday evening a relative and very fragile calm on the ground has been established, said the UN chief, adding that while the temporary weekend pause in fighting brought a “brief respite” to war-weary civilians, it had also revealed “how much the massive Israeli assault has devastated the lives of the people of Gaza.”

Telling reporters that people on the ground have described the breadth of the destruction – which has reduced entire neighbourhoods to rubble and flattened apartment buildings throughout the tiny enclave – as a “man-made hurricane, Mr. Ban said: “The people of Gaza have nowhere to run. Every home, every school, every refuge has become a target.”

The casualties and massive damage also raise serious questions of proportionality, continued the Secretary-General, adding that as of now, more than 173,000 Gazans – nearly 10 per cent of the population – are seeking protection at facilities managed by the UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA).

“I repeat my call on Israel and all the parties to do vastly more to ensure the safety of these UN sites and the security of the people who have sought sanctuary there,” he said.

The United Nations Human Rights Council held an emergency session and voted (29 States in favour, 1 against and 17 abstentions) to send an investigative mission to the region. It stated that the Council “strongly condemned the failure of Israel, the occupying Power, to end its prolonged occupation of the Occupied Palestinian Territory, including East Jerusalem; and condemned in the strongest terms the widespread, systematic and gross violations of international human rights and fundamental freedoms arising from the Israeli military operations carried out in the Occupied Palestinian Territory since 13 June 2014 that may amount to international crimes”.  While the obscene moral grandstanding of regimes like Syria and North Korea in the meeting makes one want to retch, the Council’s concerns are shared by senior UN officials such as Ban Ki Moon and High Commissioner for Human Rights Navi Pillay and must be treated seriously.

At least 1262 Palestinians had been killed by 30 July, according  to the Israeli rights organisation B’Tselem. B’Tselem also estimated that the dead include 314 children (one participated in the fighting) – that is, nearly 25% of those killed – 148 women under age 60, and 62 senior citizens aged 60 and over. Their initial findings indicate that 172 of the people killed participated in the hostilities. Over 6000 people are estimated to be wounded. 56 Israeli soldiers and 3 civilians have died. This enormous disparity between Palestinian civilian (88%) and combatant (12%) casualties raises – in a very raw way – obvious concerns about the proportionality of Israel’s response and their conduct of military operations. This death toll (and civilian death rate) exceeds that of 2002’s Operation Defensive Shield in the West Bank (almost 500), the 2006 war on Lebanon (1100), and is rapidly approaching that of Operation Cast Lead against Gaza in 2009 (1389), whose civilian death rate of 50% sparked a previous UN Human Rights Council investigation. Operation Protective Edge’s civilian death rate of 88% is a truly appalling statistic.

In addition, as UN Under-Secretary-General and Emergency Relief Coordinator (and OCHA head) Valerie Amos briefed the Security Council, the war has gravely exacerbated the humanitarian situation of Gaza’s blockaded 1.8 million people (OCHA snapshot here). 440,000 people have been internally displaced from their homes; 9000 homes and 130 schools have been destroyed or damaged; 24 medical facilities (including Gaza’s two major hospitals) have been struck; and Gaza’s electricity, water and sewage systems have been severely damaged and repairs will take months. Amos commented that: “I am deeply concerned about possible contamination of water systems. Hundreds of thousands of people are without access to regular water. And the ongoing violence is preventing urgent repairs to systems. If the current situation persists, the number of people without water will significantly increase.”

Even more infuriating is her explanation that, even as 240,000 displaced people are being housed in UNWRA schools, those places have also been struck by IDF bombs and artillery despite the UN informing the IDF command of their exact coordinates. 103 UN facilities have come under attack, including a UNRWA school in Beit Hanoun struck by artillery killing 16 people and injuring 150, one of 3 UNWRA shelters to come under attack.

The Ethics of International Humanitarian Law

So much for the devastation. What of the law, our moral theories, and their claim to provide humanitarian protection?

1. The Resort to Force

Israel claims it is fighting to protect its citizens’ security against Hamas rocket attacks and the threat of infiltration from secret tunnels built into Israel underneath Gaza’s roads and buildings. This is a standard “self defence” or national security argument. Israel has no UN Security Council resolution authorising its use of force, but nor does it need one. This is Flaw #1 in international law: even as the UN Charter (and ICC Statute from 2017) prohibits the aggressive use of force and the United Nations was formed with the express aim of reducing the incidence and severity of armed conflict, there is nothing in the Charter which prevents a state using military violence against its own citizens or within its borders. As the international lawyer Christine Gray remarks, “it is notorious that Article 2(4), drafted in response to the Second World War, was addressed to inter-state conflicts. it says, “All member states shall refrain in their international relations from the threat or use of force” (p. 59). As we argue in Ethics and Global Security (p. 85), this legal and normative “weakness condemned hundreds of thousands of people to death and misery” in Cambodia, East Timor, Indonesia in the 1960s, and Afghanistan during its civil war. While comment is often made about the problem of aggressive states having great power protectors with a veto on the Security Council (and Israel and Syria certainly have them in the US and Russia respectively), less comment is made about this profound, infrastructural flaw in international law. People are dying in Gaza as I write because of it.

Just War doctrine argues that the resort to force must have a just cause, be a last resort, and be decided upon by a “right authority”.  But how can we locate any dispassionate “right authority” in intrastate conflict, especially this one? And how do we adjudicate “last resort” ? Even a writer strongly sympathetic to Israel who also defends the war-enabling aspect of Just War doctrine, Michael Walzer, has condemned the Israeli government for deliberately weakening and marginalising the (Fatah-led) Palestinian authority and for resisting agreement on a workable two-state solution, because its real agenda is to expand illegal settlements and entrench Israeli colonisation of Palestine. However he fails to draw the obvious conclusion: that Israel’s deliberate refusal to negotiate in good faith, and its colonial policies, dramatically undermine its claim to just cause or last resort. One could add that by deliberately marginalising Hamas, criminalising Israeli contacts with the organisation, attacking the Accord between it and  Fatah, Israel’s leadership has thwarted the process of dialogue and normalisation that could bring Hamas to accept Israel’s existence and right to security in exchange for a viable Palestinian state. Instead, this war only strengthens the hand of those within Hamas who think violence is the path to success.

A further consideration should also make us pause. Nathan Thrall has persuasively argued that the primary strategic goal of Hamas in this war is to end the Israeli blockade of Gaza and its appalling human consequences. After being steadily boxed in by Israeli policy, the military coup in Egypt, the crisis in Syria, and the duplicitous US response to its unity accord with Fatah and the PLO, Hamas found all peaceful routes towards an ending of the blockade cut off. Violence seems the only solution, and while we can condemn their use of indiscriminate weapons and their apparent willingness to expose Gaza’s population to devastation, I would have to conclude that it is Hamas – and not Israel – which has a just cause for war. It is just that war rarely achieves what is intended, and opens the door to evil. Neither side will achieve what it desires, and this conflict increasingly resembles a geopolitical version of a Pinter or Beckett play – thwarted, hopeless, and brutal. We could be waiting for Godot for a very long time.

Two other Just War concepts – proportionality, and the double effect – are meant to be taken account of in decisions about the resort to force. They state, in general, that the evil caused by the war should be outweighed by the evil it seeks to redress, which requires restraint and care in the war’s fighting. (Indeed, to get around this prohibition against generalised destruction Walzer had to invent “emergency ethics”, which we condemn in our book, especially given the disturbing echoes of it in Osama Bin Laden’s own writings (pp. 126-132).) Given that Israel’s “Iron Dome” system has been effective in intercepting many Hamas rockets, which are technologically primitive, and also considering that Hamas has not conducted a suicide attack against a civilian target in the last decade, we have to question the war’s legitimacy even under a permissive standard like the double effect. And the vastly unequal toll of civilian and military life in this war makes general claims about proportionality laughable.

Sadly, however, when “proportionality” is tested against the standard of IHL, in the Jus in Bello, moral clarity yields to the hell of interpretation.

2. The Justice of Force, proportionality, and IHL

The Human Rights Council and senior UN officials have raised concerns about Israel committing war crimes, which would involve clear and grave breaches such as evidence that the IDF had directly targeted civilians. Evidence for the commission of a war crime is clearest when civilians and civilian objects have been directly targeted, or where the means of warfare used against ostensibly military objectives cannot be kept limited in ways that would avoid unnecessary damage and civilian suffering. More ambiguous is where a military objective is targeted, but doing so risks the lives of civilians or damage to property and infrastructure. In such cases, civilian life and property can be endangered, but must meet a test of proportionality. These obligations are set out in Additional Protocol 1 (AP1) to the Geneva Conventions, through an interlocking series of articles (Articles 48-57). Article 48 enshrines the principle of distinction between combatant and civilian; while Article 51(2) states that ‘The civilian population as such, as well as individual civilians, shall not be the object of attack.’ Article 51(4) states that  ‘Indiscriminate attacks’ are prohibited, and defines them as:

(a) those which are not directed at a specific military objective;

(b) those which employ a method or means of combat which cannot be directed at a specific military objective; or

(c) those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.

Proportionality is set out in Article 51(b), which goes on to further define an indiscriminate attack as one “which may be 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”.

In a somewhat polemical essay after 9/11 Michael Walzer argued that not intending to strike civilian targets made the conduct of force moral, hinting that it provided moral coverage. This, perhaps, is a legitimate interpretation of just war doctrine but it is morally flawed, and legally irrelevant. Rather, if the intent is to strike at a military objective this definition of proportionality comes into play.

I – and others such as Alex Bellamy and Nicholas Wheeler – have expressed strong concerns about the excessive latitude provided to militaries to endanger civilians in the Article 51 definition of proportionality. How is it possible to measure what is ‘excessive’ – and that in relation to an ‘anticipated’ military advantage? Is there some threshold of mortality and destruction that crosses the line between excessive and routine? How stringent is a test of military advantage? Is it permissible if the advantage is fanciful, or minimal, or less than urgent? These are questions that lie at the heart of whether Operation Protective Edge is generally lawful, or grossly lawless. The intent behind the law provides strong guidance, but its text fails its intent.

It is possible to take a very permissive view of the provision, but it is made more stringent by linked obligations in Article 57 regarding precaution in attack:

(a) those who plan or decide upon an attack shall:

(i) do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection but are military objectives within the meaning of paragraph 2 of Article 52 [ Link ] and that it is not prohibited by the provisions of this Protocol to attack them;

(ii) take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects;

(iii) refrain from deciding to launch any attack which may be 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;

(b) an attack shall be cancelled or suspended if it becomes apparent that the objective is not a military one or is subject to special protection or that the attack may be 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;

I take this to be a general injunction against military recklessness. It is not enough to decide upon a means and plan of attack and carry it out unthinkingly – to hold the view that “We think there is a military objective and too bad if civilians get in the way”. Rather, everything feasible must be done to ensure that the objective is NOT civilian, that the “means and method of attack” is such as to “avoid” and “minimise” collateral civilian damage, and that an attack must be suspended or ceased if it becomes apparent that the objective is not a military one or that proportionality will be violated. The ICRC commentary also rejects the argument that large-scale damage could be justified by a military objective of great importance (viz. Walzer’s emergency ethics): “The Protocol does not provide any justification for attacks which cause extensive civilian losses and damages. Incidental losses and damages should never be extensive.”

In my view such provisions make a permissive or reckless interpretation of Article 51 dangerous. To this caution must be added the view – expressed in the ICRC’s Commentary on AP1 (paras 1932-33) – that “Article 51 [ Link ] is one of the most important articles in the Protocol” and that violations of it (especially precautions in attack) constitute “grave breaches” of international humanitarian law (grave breaches being the most serious violations, “war crimes plus”). Furthermore, the principles of distinction and “proportionality in attack” are accepted as Customary International Law applicable in both international and non-international (of which Gaza is an example) armed conflicts. This said, I have serious concerns that the vagueness in the law provides dangerous cover to militaries who see collateral damage to civilians and civilian objects as a natural or desirable outcome of operations.

Many examples of Israeli mortar attacks and air strikes during Operation Protective Edge raise concerns about grave breaches of this kind – even if the criminal burden of proof (intent, and awareness of likely results) is high. The many attacks on UN schools, shelters, and Gaza’s hospitals; the killing of the children on the beach; the enormous levels of destruction to apartment blocks, homes, and the electricity grid and water; all must raise searching questions both of IDF policy and practice, and the capacity of IHL to genuinely protect human security on the urban battlefield. To this we can add the appalling numerical imbalance between combatant and civilian casualties, and the vast numbers of wounded and displaced. Credible theories (see Andrew Flibbert writing for the Middle East Policy Council) that there is in fact an unofficial IDF policy and doctrine of causing disproportionate civilian suffering – the Dahiya doctrine – only magnify these concerns.

Here I would take issue with the Israeli practice of providing warnings to Gaza’s population to evacuate their homes and entire areas prior to attacks, which reflects Article 57(2)(c) of AP1 which states that “effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit”. Human Rights Watch reminds us that civilians who remain do not lose their protection, and that precautions must still be taken. And even if an area is completely evacuated, the burden to limit damage to “civilian objects” (along with places of worship, food and crucial infrastructure, and dangerous facilities) remains. How, then, has this war in Gaza demonstrated how problematic this part of the law is? My suspicion is that this provision all too often functions counter to its intent, providing military forces with further mental leeway to choose targets, and means and methods of attack, that will result in disproportionate destruction. Phone calls from nowhere, “knocks” on the roof from small explosives, and general evacuation warnings – surely, to families with small children and elderly, racing to flee as they suppress anguish at the imminent loss of their homes and treasured belongings, this must seem like some god’s idea of a sick joke. And where to go that is safe? Certainly UN shelters have not proven so. There are strong reasons for removing this provision from the Additional Protocol.

In short, we need an international debate about the profound flaws in the UN Charter and the Geneva Conventions that leave the populations of conflict-prone states (and the urban battlefield) so vulnerable, and urgent consideration of new international conferences to develop and push through far-sighted reforms. If we, as an international society of states, refuse to do so, we remain complicit in the crimes we condemn from afar.

The Law that is No Law

Overnight the international lawyer and advocate Geoffrey Robertson published an argument that the Palestinian authority should join the International Criminal Court as a member and  use that position to request an ICC investigation into the 2014 Gaza war. Without it, he remarked, “International law seems eyeless in Gaza”. I most wholeheartedly agree, but despair at the geopolitical game-playing (likely great power vetoes of a Security Council reference, US, British and French pressure on Palestine not to join the ICC) that has blocked serious moves toward such a solution. He rightly argues that an ICC referral not only would give IHL teeth it currently lacks, it would pressure member states to prosecute their own war criminals (which IHL gives them the power to do under its “universal jurisdiction” provisions for the prosecution of grave breaches). However this slow and backward-looking approach does nothing to address the constitutive flaws in international law itself (one dreads to imagine the legal sophistry that would be visible in discussions of proportionality), or restructure the diplomatic and strategic norms which are putting communities in such danger. Consider that neither Hamas, other Palestinian militant groups, nor the IDF, have ever had to account for past crimes; nor it seems will the Sri Lankan Army (after its brutal endgame to its war with the Tamil Tigers), or the Syrian regime, the Taliban, the vicious militants of ISIS, and many others.  While the Geneva Conventions and the ICC Statute are an impressive body of law, it is equally matched by a terrible pattern of impunity. What if the very source of that impunity, at least in part, lies hidden within international law itself?

It was Giorgio Agamben, in his books Homo Sacer and State of Exception, who decisively exposed the hollow core of the idea of sovereignty and the “social contract” by which the state would provide its citizenry with security and rights. Rather, the sovereign perpetually exposed both its citizens, and its others, to legal abandonment and physical degradation even within the armature of law. This was a dark secret that lay at the heart of modern sovereignty, whether it be exercised by a democratic or authoritarian state. Now we have to consider that such a destructive paradox inheres in the international law of armed conflict. Rather than entrench humanitarian protections, or promote liberal (or even cosmopolitan) ends of peace, security and justice, it too often functions to enable and entrench their opposite. Such a law enables lawlessness; it is a ghost of itself, a law that is no law. Is this not the tragic lesson of Gaza?