The Al Jazeera English website had an interesting and tightly argued tribune a couple of days ago on “International law, the Gaza war, and Palestine’s state of exception,” by engagé academic MENA specialists Mark LeVine and Lisa Hajjar. The opening paragraph:
The large-scale military assault launched by Israel on Gaza, and the manner in which both Israeli and Palestinian forces are fighting this war, raise numerous red flags regarding large scale violations of human rights and international humanitarian law (IHL). Such violations have long characterised the Israeli-Palestinian conflict; yet despite post-Cold War improvements in the enforceability of international criminal law, in the Israeli-Palestinian context those who perpetrate human rights violations and war crimes seem largely immune to legal accountability.
They proceed to stick it to Israel as a big time violator of IHL. As I am not a jurist—and legalistic arguments can sometimes be over the heads of the non-initié comme moi—, I submitted LeVine & Hajjar’s piece to an associate who works on human rights in MENA—and who possesses specialized knowledge of IHL—for his expert assessment. When it comes to IHL in MENA (and anywhere else), he’s my gold standard (he requested that I not give his name and organization here). Here’s his response (before continuing, it will be necessary to read L & H’s piece)
LeVine and Hajjar explain IHL 101 OK, but then misapply it to the detriment of Israel. For example:
(1) They wrongly argue that Israel can’t kill a Hamas military commander when he goes back to his home at night because it’ll take out civilians. In my view, a proportionality test would apply to such an attack.
(2) If Israel misses the guy’s house due to a targeting error and kills an innocent family of 8, it’s tragic but would be a crime only if the attack flunked IHL tests of proportionality of “all feasible precautions,” etc. Not every military mistake is a war crime.
(3) They argue that it was wrong to kill Jabari because a peace deal was near and thus the danger to Israel was not such as to justify a military attack, and besides Palestinian rocketing had surged only in response to Israeli aggression. LeVine and Hajjar are entitled to their opinion, but IHL accords parties discretion in deciding when to strike, as long as they respect the laws of war when they do strike.
The authors do not address the build-up of more powerful missiles and anti-tank weapons that were entering Gaza, which also probably entered into Israeli calculations of when and how to strike. In terms of IHL they also change the proportionality calculus: if the IDF were to kill 10 civilians to take out a single Qassam launcher, the IHL calculus differs from a similar toll in destroying a Fajr 5 stockpile.
The authors criticize Hamas for firing at Israeli civilian targets but ignore the obligation of Hamas and others to take all feasible precautions not to fight among civilians. When we’re talking about Gaza, that is very hard to do because of population density and the short-range of their missiles, and I’m not sure that Hamas would fail the test (e.g., by stockpiling missiles in hospitals and crèches). Moreover, IHL does not forbid fighting from urban areas, it only requires that such positioning pass the “all feasible precautions” test.
The authors are right that there is a debate as to whether Gaza is still under occupation. It is sui generis but I agree with them that it is. However, they are wrong to suggest that this changes somehow that IHL calculus as it pertains to armed conflict. As they point out in their introduction to IHL, it’s all about sparing civilians and treating humanely enemy fighters when they are placed hors de combat (i.e., injured or captured). This applies to all armed conflicts, and thus to Gaza, whether or not it is deemed to be under occupation, and whether or not one recognizes a Palestinian “right to resist (militarily).”
It is relevant to monitor, as they do, the over-the-top statements by Israeli leaders as an indication of intent, but only if those leaders have a role in decision-making in the prosecution of this war. They don’t establish that case in their piece.
Basically, they reject the whole premise of HRW’s and AI’s approach, which is that in most cases, Israeli “crimes” can only be confirmed by going in and conducting a case-by-case analysis of the damage and the proximity of potential targets. The hugely lopsided casualty figures between the two sides certainly raises concerns of possible violations of IHL by Israel, but they are not in and of themselves proof of violations.
Regarding the attacks on media, we oppose Israeli arguments that Hamas-controlled media are not journalists but part of the war propaganda machine, but the Israeli case is not to be rejected out of hand, as LeVine and Hajjar do.
In the approach taken by international human rights organizations, a basic asymmetry emerges: we can denounce Palestinian rocketing of Sderot as war crimes without investigating, but it’s usually difficult to denounce Israeli operations against Gaza until we go in and investigate. Which means that the PAC decries the “bias” in our first communiques in these situations but then after we issue our reports from the field and point to Israeli crimes and excesses, it’s AIPAC who attacks our “bias.”
Those sympathetic with the plight of Palestinians often argue that IHL favors modern states armed with hi-tech weapons like smart bombs that can be aimed at military targets with precision. Give resistance fighters smart weapons and they’ll gladly abandon their Qassams, the argument goes. It is true that in this way IHL favors modern armies against crudely armed rebel movements. But in other ways IHL favors the latter, so the legal asymmetry works in both directions.
Voilà. À chacun de décider…
UPDATE: See Mark LeVine’s reply in the comments thread below.