Friday, November 30, 2012

Ron Smith: Terrorist rules

A commentator on my previous posting (of 19 November) explicitly makes the argument anticipated but dismissed there, that weaker parties in these irregular wars will tend to see themselves as not bound by humanitarian law.  He says: “Having and obeying the rules of warfare tends to be something that only the strong can do. Without supporting one side or the other it is obvious that Hamas or the PLO is not militarily able to take on the IDF in the open.  To do so would be suicidal.  Were I a freedom fighter (which in their eyes they are) I’d use the means I had available and stuff the rules.” (emphasis added).

It is easy to understand the sentiment that lies behind this kind of observation, and the commentator is right to observe that Hamas cannot take on the Israeli Defence Forces in conventional conflict, with any prospect of success.  But it is a long way from this observation to justifying killing arbitrary Israeli citizens (not members of the military forces), which is the dominant Hamas tactic.  This, as noted earlier, is simply terrorism and has been universally condemned (in United Nations resolutions, international conventions and humanitarian law) and it doesn’t matter whose ‘eyes’ we are using.

To concede the point to Hamas is to concede it to all the groups around the world who have grievances about which they feel passionately (Taliban, al Qaeda, IRA,  FARC, Moro Liberation, Tamil Tigers, Basques, …).  International humanitarian law simply cannot work unless the same principles of moral/legal judgement are applied in all cases.  Claims of ‘war crimes’, made by parties to a conflict, are otherwise, hypocritical and self-serving.  If a party cannot fight within humanitarian rules, it cannot fight at all.  The deliberate decision to employ coercive violence to achieve a political end (initiate ‘war’, or respond to prior attack), inevitably brings an obligation to exercise restraint, both in regard to who is harmed and in relation to the overall destruction caused (the principle of proportion).  In this context, we can comment on what was done by Israeli forces in the latest phase of the long war in Palestine.

To begin with, I am taking it that Israel was justified in responding militarily to the preceding rocket bombardment and that the targeting of the Hamas military commander (Ahmad Jabari) was legitimate.  He was manifestly ‘participating in hostilities’ (as noted in earlier commentary, this is the Geneva (Protocol I) characterisation of ‘combatant’).  The same applies to strikes at lower-level operatives who were facilitating operations and/or manning rocket launch sites.  I also take it that launch sites or weapon stores are legitimate military targets, wherever they are.

Humanitarian law is less clear on the status of persons who are more ‘political’ than ‘military’.  Traditionally, Geneva has seen only uniformed members of the armed forces of a belligerent state as combatants, with everyone else (including government ministers) as ‘civilians’ (and thus protected).  This is anomalous in the case of officials who are involved in the direction of a war (Defence Minister) and particularly where the head of state is nominally also ‘Commander in Chief’.  It is arguable that such persons are participating in the hostilities in a big way and thus are also legitimate targets for attack.  If this is accepted, then Israeli targeting of Hamas officials and government offices is also defensible.

But there is a problem in all these cases (including the clearly military targets).  If local reports are to be believed (and that is an important caveat), most of the people actually killed (several hundred overall) were not in any of the categories above.  They were civilians.  The words of the Chief Prosecutor at the International Criminal Court are very relevant here: “Under international humanitarian law and the Rome Statute, the death of civilians during an armed conflict, no matter how grave and regrettable, does not, in itself, constitute a war crime.  It is (the prosecutor explains) a matter of proportionality between the value of the military objective and the incidental civilian harm.  In the circumstances I was describing in the previous column (‘A kind of terrorism’, 19/11/12), where such objectives are frequently found in civilian areas and, perhaps, intentionally so, this is inevitably a difficult calculation.  On the other side, there is also the matter of using civilians and civilian structures as a ‘shield’ for military operations, which is also a war crime.  Any prosecutions in this sort of case are going to depend crucially on the facts of the case, and any convictions that occur will clarify humanitarian law on many of the points that were the subject of some speculation above.

Recent events may have moved this issue beyond the academic, in that some supporters are suggesting that the new status of the Palestinian Authority may permit them to become a party to the Rome Convention and thus be in a position to initiate a prosecution of Israel for war crimes.  It would be strange, indeed, for this process to occur, whilst their defenders also claim that they (the Palestinians) are not, themselves, bound by the statutes of the convention, on account of their relative weakness and the strength of their cause.  Truly, we live in interesting times.


Brian said...

Ron Smith: Terrorist rules
With the United Nations voting for recognition of a Palestinian State (New Zealand changing sides on this issue), a lot easier politically under a MMP system. On can but wonder as this “new” state is acceptable to the United Nations, that Hamas and the rest of the Terrorist organisations will at once, stop their activities against the State of Israel??
It would be rather naive however to believe that this will happen, so whatever the motives behind this change at the U.N. Terrorism as a weapon will continue, together with the ultimate aim of the whole Muslim world to eventually destroy the “Infidel Unbelievers”.

Israel is not so naive as to believe that any real change will take place with regard to its nationhood. Iran will continue to develop its weaponry, and it is only a matter of time before they will be strong enough, and Obama’s America weak enough, to launch a pre emptive rocket strike against Israel.
Meanwhile here in God’s Own (Unless this phrase is banned and “Allah’s Own” substituted) we will continue to bury our heads in the warm Arab spring sand, hoping that our benign attitude and appeasement policies will eventually win the day.

Finally an economic suggestion, that before any new or reconstruction of our Churches takes place; provision should be made for the future by allowing plans be drawn up to included a Mosque adaptation. Failure in Britain on this score, has led to extra building costs involved after the changeover.

Ray said...

I believe it was me you quoted as commenting on your previous post. I wasn't saying Hamas was right I was pointing out that a believer will ignore rules that means his or her beliefs are frustrated.
Interesting the piece about the politicians in charge being legitimate targets. I've always found it strange that combatant states are willing to flatten cities and kill millions but political assassinations are seen as against the rules. Does that make Obama, or Key for that matter, a legitimate target of the Taliban?

Anonymous said...

Thank you Ron for clarifying the rules of war, such foundational information is consistently absent from the emotionally charged reports of the Robert Fisk types and BBC sound bites. The difficulty in identifying civilians is truly a tough challenge for the IDF, although not so for Hamas. Their justification is that all Israeli civilians could be reservists and children will grow up to serve in the IDF so are legitimate targets of the future. The legal reference points stated are very helpful to establish fair assessment in that the involved individual’s viewpoint is irrelevant.
I was in Israel during the Ramallah lynching of two reservists who made a wrong turn on the wrong side of the check point. A mob of 1000 civilians brutally dismembered these two, then celebrated while assaulting any media seeking to report the event. Two Italians escaped to share the horror with the rest of the world.
The next day’s paper showed the contrast between the worlds there – the IDF had court martialled a border guard for using excessive force on suspects while Arafat had ordered the execution of four young men who were accused of leaking information that helped prevent a truckload of explosives blowing up the major shopping mall in Jerusalem. They were shot to enforce ‘loyalty’.
Sitting in our armchairs here with different snips of dramatic rating grabbing footage playing across the TV muddies any chance of a clear critique – but stating, and restating humanitarian law and Geneva/UN conventions does help clean the lens, enabling perspective with a clear reference.

Anonymous said...

not completely within this thread but who are the palestinians? They did live on the land that is now Israel and Israel controls the land they live on now so my question is are they outside Israel and so should be considered a nation state in the land their homes are on or are they in Israel and so Israeli citizens.

This is important as they are either a country at war with Israel or citizens being persecuted and discriminated against?

Which are they?