Israel’s War is Against Hamas; It Must Not Become a War Against the People of Gaza
Elsewhere, I have argued that Israel has the right to defend itself, and that the death of innocent civilians resulting from the bombing of Hamas positions is a tragic consequence of war. But this war must not be waged against innocent civilians by depriving them of the food, water, electricity, and medicine that they need to survive this conflict. Fundamentally, there is no difference between a child murdered by a terrorist and a child who died of starvation. Palestinian parents grieve as must as Israeli parents do.
The law of war prohibits targeting civilians. Civilians are to be spared from being killed or wounded unless they are in an area of fighting. Targeting civilians solely for the purpose of terrorizing the enemy and destroying a nation’s will to fight is a war crime.
For thousands of years, going back to the earliest religious writings in the Indian Mahabharata and the Hebrew Torah, philosophers, theologians, and rulers have debated what conduct is permissible between enemy combatants. From the time of the American Civil War, nations sought to regulate the conduct of their own soldiers. Beginning in the 1899 nations have entered into treaties protecting enemy soldiers from mistreatment and outlawing the use of certain weapons. But the modern laws of armed conflict began with the four Geneva Conventions that were negotiated after the end of the Second World War.
Prior to the enactment of the Geneva Conventions, the prosecution of war criminals was the province of those nations who prevailed in a conflict. The Nurenburg and Tokyo prosecution of Germans and Japanese military and civilian leaders are the prime examples of such prosecutions.
What constituted a war crime was defined not by statutes or treaties, but by principles recognized by customary international law. Customary international law consists of rules that nations have found to be in their mutual interests to follow. Customary international law, however, can become so universally recognized that it becomes jus cogens. Jus cogens are rules that bind every nation, even those nations who refuse to abide by these rules.
A treaty, by contrast, is different. A treaty only applies to those nations who agreed to be bound by it.
The four Geneva conventions were negotiated in 1949. Geneva Convention I protects the sick and wounded in the field [meaning on land], as well as medical and religious personnel. Geneva Convention II affords similar protections to those armed forces at sea. Geneva Convention III protects prisoners of war. Finally, Geneva Convention IV provides for protection of civilians in times of war.
Each of the conventions proscribes various violations of international law, but also identifies the worst offenses which are called “grave breaches.” Grave Breaches are those crimes that each signatory to the Convention agrees to be bound by and punish those found within its jurisdiction who have been found to have committed these offenses.
ART. 147. — Grave breaches— Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: willfull killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or willfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.
As noted earlier, the Geneva Conventions only apply to those nations who have ratified it, which at this time are most of the nations of the world, some 196 nations. Significantly, because Hamas has not agreed to be bound by the Geneva Conventions, it is not entitled to the protection of the Conventions and thus Israel is not required to follow the Conventions in the conduct of its war against Hamas.
But Israel is still bound by GC IV to the extent that the Geneva Convention protects civilians.
Moreover, Geneva Convention IV is now part of customary international law which also protects the residents of Gaza.
Thousands of innocent civilians will be killed in the fighting between Hamas and the Israel Defense Forces. So long as the IDF respects the principle of military necessity which is a rule of customary international law that requires that any attack be directed at a legitimate military objective and that harm caused to civilians be proportional and not excessive in relation to the concrete military advantage anticipated, the deaths of civilians, as tragic as that is, will not violate any peremptory norm of international law.
But Israel has not articulated any military advantage obtained from denying innocent Palestinians food, water, electricity, and medicine.
If Israel’s leadership continues to prevent innocent Palestinians from getting the aid they need, the United States must threaten to cut of the military supplies Israel needs. I am convinced that Israel will listen to “reason” if faced with such an ultimatum. As a Jew, committed to the survival of Israel, I fully support Israel’s actions to rid the world of Hamas. But that war is against Hamas, not the Palestinians, and everything that can be done, must be done to protect innocent people.