Posted on: May 20, 2021 Posted by: Mitchell Plitnick Comments: 0

Just before I started writing this, reports came in that a ceasefire between Israel and Hamas had been reached. I hope by the time you read this it is still holding.

In any case, over the past two weeks I’ve watched many discussions and debates about Israel’s latest assault on the Gaza Strip. Some have been familiar, others have taken on some new tones and nuances that, I think, reflect a growing disillusionment with Israel and a growing understanding that Palestinians have been denied the basic rights that most of us expect as a matter of course.

In those conversations I came across certain ideas that bear looking into. Rather than pick one and do a deep dive on it, I thought it would be beneficial to just examine some of the more common and, in my view, most important ones briefly. Four points

Hamas is a terrorist organization.

On one hand, this is self-evident in a technical sense. Canada, the European Union, Israel, Japan, and the United States have designated Hamas as a terrorist organization. Australia, New Zealand, Paraguay, and the United Kingdom have designated only its military wing as a terrorist organization. And, factually speaking, no one can deny that Hamas has employed terrorist tactics.

But the character of Hamas is not the point. I may find the group morally objectionable and may not like the harm it causes to both Israelis and Palestinians. I may not like the way it goes about its business on many levels. But the labeling of Hamas as a terrorist group in this context is intended to justify an approach that is more aggressive and more violent than would presumably be the case otherwise. Or, at the very least, it is being used as a rhetorical device to bolster the argument for a more violent Israeli response, such as the one we have been watching in Gaza.

That’s just wrong. The nature of the opposition does not change Israel’s responsibilities under International Humanitarian Law (IHL), or under the guidelines of human decency. Every country depicts their enemies as the very epitome of evil, and even if the characterization is accurate, it doesn’t change the rules. On the contrary, that’s precisely why the rules are in place.

Israel has the right to defend itself.

This statement is taken as axiomatic, but upon examination it is not so clear. Noura Erakat makes a compelling, and I would say convincing, case that the concept of the “right to self-defense” in international law does not apply to Israel as an occupying power ostensibly defending itself against the occupied people.

More accurately, what we have when talking about Israel and the Occupied West Bank and Gaza Strip is a clash between two other principles in international law: the right to resist and the duty to protect civilians.

While politicians and talking heads never forget to mention Israel’s purported “right to self-defense,” they very rarely mention that Palestinians, too, have the right to defend themselves and, more specifically have the right to resist occupation, including with armed resistance. No different than the Partisans or the French Underground in WWII.

Faced with overwhelming violence, Palestinians are uniquely expected to employ non-violent means exclusively, although when they do—such as through calls for BDS—they are accused of attempted genocide anyway.

IHL supports the right to resist, but within the boundaries of the law. For that reason, Hamas’ rockets, which cannot be aimed accurately and therefore cannot possibly distinguish between civilian and military targets, are still illegal under IHL. It’s something that should be considered by international jurists going forward, because Palestinians in Gaza are confined behind walls from which the massively superior Israeli armed forces can easily and safely target whatever they wish. Other than the random rocket fire, Gazan militants have no way to respond. But, for now, that is what IHL says.

While Erakat makes the case that Israel cannot claim self-defense against a people it is occupying, Israel does have a responsibility to protect civilians. That responsibility includes protecting its own citizens, but, crucially, it also includes protecting civilians it holds under occupation.

Israel may have eliminated its presence inside Gaza—which means day-to-day policing and other forms of protection are, indeed, Hamas’ responsibility—but it continues to control the borders, the airspace, the coastline, and all routes into and out of Gaza, with the sole exception of the Rafah crossing into Egypt.

As such, Israel is not only responsible to take all measures to avoid any harm to civilians and civilian infrastructure in whatever measures it employs, it is also responsible to protect civilians in Gaza in general. Obviously, that is not a responsibility Israel believes it has. The law disagrees.

Moreover, while Israel is entitled to protect its civilians, its Iron Dome system does the overwhelming majority of that task. The massive Israeli strikes on Gaza cannot be understood as protection, as there is no evidence at all that it protected any lives. On the contrary, the evidence suggests that Israel’s assault only brought more rockets into Israel.

On every level, this claim of self-defense in the case of the assaults on Gaza is bogus. Although Israel does have the same right of self-defense as any other country, it does not apply to its conflict with a people it occupies. This can be a difficult idea—I admit, it took me some time to wrap my mind around it when Noura Erakat first made the argument to me years ago. But it is correct, and she proves it. Again, I strongly recommend everyone read her piece on this point.

More than that, its actions have not been defensive in any sense of that word. Even if we consider them retaliatory, a characterization I consider inaccurate, retaliation that merely escalates is not defensive. It is purely destructive.

Hamas rockets target civilians, while Israel targets military sites.

I touched on this above. It does need to be stressed that, because Hamas’ weapons are indiscriminate by definition, firing them at Israel is illegal under IHL. Israel, however, has created a situation where Hamas either commits that violation or it has no way of using force when Israel does things like fire on worshippers in the al-Aqsa Mosque. One can argue that Hamas should do nothing then, and that is clearly the choice the Palestinian Authority made. But it’s far from a cut and dried issue, beyond the letter of the law.

On the other hand. Israel not only has the technology to target with near-pinpoint accuracy, but they also have extensive intelligence about Gaza. They know which structures are residential, which are military, which are hospitals, which are schools. There is, therefore, no excuse for the kind of destruction we have seen in Gaza time and again.

Sometimes Israel warns residents of apartment buildings that they are about to be bombed. That may allow the people to scatter, but it leaves them homeless in the already impoverished Strip. And those warnings don’t always come.

Israel often boasts of destroying the homes of Hamas leaders. We need to understand that anyone connected to Hamas is considered a target by Israel. But Hamas is also the administration in Gaza (calling them or the PA a “government” is a horrible misuse of that word). Some so-called Hamas members may be in charge of civil matters, but might also express political views in public, attracting Israel’s attention.

In any event, even combatants’ families and homes are not legitimate targets.

Israel has damaged hospitals, schools, and, famously, a building housing international media. In fact, Israel has targeted many civilian structures, including the Strip’s biggest bookstore, which is now rubble.

It is not Hamas that is maximizing civilian damage, it is Israel.

Hamas uses Palestinian civilians as human shields and sets up in civilian areas.

The Gaza Strip is one of the most overcrowded and densely populated places in the world. Two million people are crammed into 141 square miles.

But when Israel says Hamas is operating from civilian areas, they include the fact that Hamas members and leaders have residences, that Hamas has offices. Even aside from that, it is simply impossible for Hamas to completely remove their military activities from civilian areas.

Israel’s main military installation, HaKirya is in the middle of Tel Aviv. Military bases and installations are all over the country, and soldiers are everywhere, carrying their weapons and in uniform even when off duty. Surely, Israel is not arguing that these practices amount to the use of human shields.

The use of human shields is a clear violation of IHL. But crucially, that doesn’t mean the other side has the right to disregard the safety of the civilians being used in such a manner.

Israel may argue that, if Hamas uses human shields (a point which is not proven, although we have seen numerous instances of Hamas using civilian and even UN sites for military purposes, such as storing weapons) it has no choice but to fire anyway. This is simply wrong.

This is where the question of proportionality comes in. This principle is widely misunderstood. It does not mean that one side can only respond with a measure of force comparable to the other. Rather, proportionality “requires parties to balance military advantage against the risk of harm to civilians and civilian objects.”

Proportionality is normally applied in a case where you can reasonably expect a level of collateral damage to civilians or civilian infrastructure. In the case of human shields, the likelihood of such damage is much higher, and therefore, the military objective must also be of a greater benefit. There is simply no way to make that case with regard to Israel’s assault on Gaza.

While of course, there will be lengthy investigations, there seems to be little question that Israel committed massive crimes here. Again.