Gaza: the international law of war and proportionality.

By: Ricardo Israel - 30/10/2023

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A new war in the Middle East is approaching and it is timely to remember that its origin is not only the Hamas invasion of Israel, but also what was experienced on October 7 with the total violation of the human rights of the victims, including the hostages taken to Gaza as human shields.

International Law deals with limiting war with the Geneva Conventions, Treaties whose content is found in four conventions and their additional protocols, which exist to regulate armed conflicts through humanitarian law, with the purpose of protecting victims. They were originally intended for regular armies, but today it is considered that they also cover irregular armed groups and terrorist groups, since otherwise Human Rights could not have universal application.

The first was signed in Switzerland in 1864, a year after the founding of the International Committee of the Red Cross, to concern itself with the wounded and sick of armies in the field and the rights of medical personnel, who were considered neutral in order to care for them ( updated in 1906, 1929 and 1949).

The Second Convention deals with uniformed personnel wounded, sick or shipwrecked at sea in 1906 (updated in 1929 and 1949). The Third refers to the treatment of prisoners of war, it is from 1929, and updated in 1949. For its part, the Fourth is the agreement for the protection of civilians in times of war, from 1949.

Contrary to what is believed, not only Israel is limited by it, but also the concept of war crimes reaches Hamas and other similar groups, even though the United Nations or international justice for more political than legal reasons, still take little of them.

This is how, in accordance with these agreements and protocols, Hamas can also be considered primarily responsible for civilian deaths in Gaza, since it violates protocol 1, article 58, since this group, by governing there, has an affirmative duty to protect and remove the civilian population under its control, and always avoid locating military objectives within densely populated areas.

Furthermore, Hamas has a duty that comes from Article 28, which says that the presence of civilians cannot be used to make certain places or areas immune from military operations. Hamas puts them in danger by forcing them to accept that buildings and houses are used as entrances to tunnels and that rockets are launched from there, also using kindergartens for this.

Another affirmative duty comes from Geneva IV, since Article 29 makes all parties to a conflict responsible for the treatment of “protected persons”, that is, civilians. In other words, the fact that combatants take refuge in tunnels under houses, but without worrying about feeding those who govern, has always been considered a violation of that provision.

Without a doubt, taking hostages is a war crime, and Article 34 is clear in stating that “taking hostages is prohibited.”

Hamas' obligations also include allowing civilians to leave their place of residence during the conflict, a duty that is restricted when Hamas establishes checkpoints on the way to southern Gaza not only for Palestinians, but also for foreigners residing there. It is Geneva IV, which in 1949 and with the experience of the Second World War, established in article 35 “the right to abandon the territory”, and not to force them to remain as human shields.

A rule already established in Protocol I, article 48, is that attacks must be directed against military objectives. It binds not only Israel but also Hamas, which violates this rule with thousands of rockets sent randomly to cities, which constitutes a war crime (see the “Basic Rule” in that article).

The obligations for Hamas do not stop there, since the use of places of religious worship to support the war effort is a war crime, according to article 53 of that same protocol when storing weapons in a mosque, which is not only a crime of war, but it removes the protection that these places have to avoid being attacked, something that the media does not notice when reporting news of the conflict. Therefore, this article is very clear as it is titled “Protection of cultural objects and places of worship” (religious).

For its part, contrary to what some believe, proportionality is not the same as the law of retaliation, that biblical provision of an eye for an eye, but rather something very different, since, if it were a question of inflicting the same damage that was received October 7, we would fall into the absurdity of asking for rape, dismemberment of corpses and beheading of children, in addition to hostages.

The principle of proportionality has never talked about it nor has it said that the number of deaths in the response is exactly the same as that received in the original aggression. What it refers to is nothing more and nothing less than the level of force that must be used with respect to the level of resistance, that is, in no case is the most powerful army asked not to use the means it has to win in the shortest time possible and taking care of the lives of its troops.

If it is about protecting lives, rather than preventing the use of the weapons that are available, the principle of proportionality refers to doing everything possible to warn civilians, with instructions to their own soldiers to avoid harm to innocent non-combatants as much as possible. , warning of what is intended to be done. In that sense, it is what is done when you warn with leaflets that you are going to attack or bomb.

According to international law, it is not about quantity, which is also the reason why the use of human shields is punished, which seeks to increase the number of deaths to influence emotionality through propaganda effects and social networks. .

The purpose of war is the subjugation of the enemy, so the choice of means and methods should not have as its primary objective the death of civilians. On the contrary, every just war is understood as the defense of human beings, so what is sought to be punished is that the main objective of the war activity is harm to the civilian population, especially if this exceeds the military advantage. that the attack provides, that is, the opposite of what happened on October 7, where its main objective was to attack civilians, usually the 'purpose of all terrorist action.

In any military action, innocent people can suffer, but what the principle of proportionality seeks is not an “eye for an eye,” but rather, if there are consequences for civilians, these should not be the objective, but only “collateral damage,” an expression that does not hide the suffering of the innocent, but that it was not wanted or sought.

Although the press generally does not report it this way, there is an application of the principle of proportionality, when, for example, in the latest confrontations with Hamas, attacks have been notified via text messages to residents or by placing bombs on the roofs of buildings. delayed effect, to give the inhabitants the opportunity to escape, in cases where those places are being used to attack Israeli territory. The above takes place in accordance with the principle of proportionality, and the Geneva conventions and their additional protocols.

All wars have been different for Israel, the war of independence in 1948-49, and those of 1956, 1967 and 1973. This one will also be different, in addition to being long, it has been warned. On October 7, Israel lost deterrence, and now it must win this war, since weakness is not welcomed in the Middle East.

We do not know whether this war will be limited to Hamas or will lead to a regional conflict, which depends on Iran, given its control of militias in Iraq and Syria, as well as Hezbollah in Lebanon and the Houthis in Yemen. Since October 7, the USA has received at least 19 attacks on its troops in Iraq and Syria, so perhaps it already feels one, and testimony to this is that on 26-X it responded as a message to Iran, in addition to sending two aircraft carriers, but if history is of any use, it is that its troops will not fight for Israel, which has never required soldiers other than its own. The USA fully supports it as in 1973, but unlike that war, today Israel has a very developed defense industry.

The novelty seems to be Europe, which since 1967 began to distance itself from Israel. Now, the United States has managed to convince its most important countries of Israel's right to defend itself. Although it is not a completely reliable partner, Emmanuel Macron's proposal to build an international alliance against jihadist terrorism, similar to the one achieved against Saddam Hussein, seems interesting, although for now, it is just an idea, with the addition of Whether European countries like France itself will be able to collaborate, given the internal division of those countries on racial and religious bases, and the amount of immigrant population from Muslim countries.

Support from many other countries does not seem to be expected either, since it is not certain that governments can count on the necessary support to collaborate on an initiative of this type. To begin with, even if it is defeated, there is no evidence that Hamas will completely disappear, since in addition to being a terrorist group it is a movement that originated for religious and social reasons. In fact, neither ISIS nor Al Qaeda have completely disappeared. To begin with, the interventions have not been very successful for the USA, which after 20 years in Afghanistan returned power (with many weapons in the warehouses) to the Taliban itself, and withdrew from Iraq, leaving none other than Iran there, as the most influential country.

What it did achieve was annihilate ISIS's ability to control territories and military aggression, as well as prevent them from threatening the stability of the governments of the countries where they operate. With Hamas, what is sought is its beheading and that it no longer have the power to cause the horror of October 7, nor control Gaza in the way it does today.

It is not true that Hamas has no real support. In 2006, the year before his coup d'état against the Palestinian authority, he won the local elections in Gaza cleanly, and if Mahmoud Abbas has not made the due elections for more than a decade, the reason is that he would surely lose them, just as This is recognized in the latest survey by the Palestinian Center for Policy and Survey Research, which in September reported that Hamas leader Ismail Haniyeh would win them with 58% of the vote, replacing the Palestinian Authority in Ramallah.

That should not be surprising, since they triumphed in Egypt with the Muslim Brotherhood and in Algeria in the 90s, both overthrown by the military and representing fundamentalist movements, as is Hezbollah, which wins its elections in the south of Lebanon, the territory it controls.

It must be remembered that Europe was moved when those who had been born and educated there traveled to Syria and Iraq to fight for the Islamic State, as well as other young women to marry fighters. And today, with the support that Hamas has in its universities, the USA must prepare for the possibility that some of these radicalized young people end up fighting as jihadists.

The truth is that religious-political Islam has won the few elections that have been held fairly, in some places like those mentioned. The truth is that, in the 20th century, after the fall of the Ottoman Empire, the Arab world related to the West in three main ways. The first was religious Islam and the promotion of Jihad, with the sacralization of the century in which Muhammad lived, with ideas that believed ideals for the political and social organization of the new countries, although they did not recognize those borders, but rather the community. world of faithful.

A second path was Arab nationalism, which had leaders such as Gamal Abdel Nasser and which functioned fundamentally as military dictatorships in Egypt itself, and with al-Assad, father and son in Syria and Saddam Hussein in Iraq, who also had a single governing party, the Baath. As a personalist dictator, Libyan Muammar Gaddafi was also part of this orientation.

The third was that of monarchies such as Jordan, Saudi Arabia and others, which generally adapted to the United States and its orbit of influence, and to a lesser extent, to the former colonial powers, the United Kingdom and France.

In the 20th century, most of the countries that constitute the Islamic community or the Arab league were also created, after the decolonization of Africa and Asia. In fact, most of the Middle Eastern countries were created in a similar way, either by international decision or when, starting in the 1930s and 1940s, it became very difficult for colonial powers such as the United Kingdom or France to maintain your domain.

This is how many Arab countries acquired their current appearance in years similar to Israel, whether they were new or the recreation of old nations that were dominated from abroad for centuries. As an example of new developments, Jordan had a British mandate until 1925 and the Kingdom was declared in 1950. For its part, Lebanon became independent in 1943, but French troops withdrew only in 1946. In the case of the United Arab Emirates, the independence is only from 1971.

For all this history as well as that of Judeophobia, the words of Antonio Guterres, Secretary General of the UN, never cease to surprise, when he said that October 7 “did not happen in a vacuum” but because of “56 years of suffocating occupation.” , forgetting the previous “occupation” of Egypt. As usual, he later said that he had been misrepresented, but he did not retract his statement at any time. There is no doubt that his intention was that the Jews or Israel must have done something to deserve it.

It hurts to hear those words as well as to observe what happens in the universities, because it is the United States, where a new generation displays the same Judeophobia that has existed for so long, since it is not so much about supporting the Palestinians as questioning the existence of Israel and offending the Jews, where more than freedom of expression, there is incitement to hatred.

What about the USA is surprising, but it shouldn't. Great tragedies have happened to them in history, precisely when Jews felt safe. It happened in Spain with the expulsion of all the Jews who did not want to convert in 1492, and that is the origin of my surname Israel and this family branch. It happened certainly in Germany from the 1930s onwards.

Who is responsible for what happens in Gaza? First of all, Hamas and not only because of the international law cited, but also for the same reason that the responsibility for the Germans killed by Allied bombings was Hitler's.

We know that war is thousands of years old, perhaps since the appearance of Homo Sapiens, and to understand it as a cultural phenomenon forever, it is necessary to read the British John Keegan and “A History of War”, more than Carl von Clausewitz who only He sees in it “the continuation of politics by another means.” For its part, diplomacy is only centuries old and human rights are barely decades old.

In a historical perspective, as the oldest phobia in the world, Judeophobia is not new nor are those who support terrorists. The differences with another historical era are two: that now Israel exists and that today no one can claim that they “did not know”, unlike those Germans that General Eisenhower took to visit a concentration camp in 1945. It is the good part of the existence of social networks, with Hamas itself uploading the videos with what they did on October 7 in the kibbutz.

Peace continues to be the great objective that Israel accepted in 1947, and that many still reject today: two States, one side by side, unlike Hamas, which wants one instead of the other, one also only Islamic and with Sharia.

@israelzipper

--PhD. in Political Science (U. of Essex), Lawyer; presidential candidate (Chile, 2013)

«The opinions published herein are the sole responsibility of its author».