RTÉ's Tony Connelly looks at how Israel is interpreting international law, and whether or not there is a road to peace
The car stopped dead at the junction of Yitzhak Sadeh and Yigal Alon Streets as we clambered out and over to a cluster of trees.
It was an unsettling episode, but nothing compared to the death and destruction that rain down on Gaza every day and night.The UN Secretary General Antonio Guterres says there is"something clearly wrong in the way that military operations are being done." Israelis are not just emotionally raw: there is a blanket consensus that the Israeli Defence Forces must eliminate Hamas because Israel’s very survival is at stake.
But even among thoughtful, liberal Israelis who sympathise with the Palestinian population, there is the unanimous belief that this is a just war and the IDF are conducting it according to international law."I have a very hard time watching the news. My heart does break for every Palestinian mother who is now terrified for her children.
This is not a claim that sits well with the daily images of pancaked buildings - whole neighbourhoods destroyed - and crushed bodies piling higher each day in Gaza. "Therefore, when people look at images from war they intuitively assume that something wrong has happened, and we very quickly, in the modern age, translate morality to war, so it’s got to be a war crime."
A fundamental rule of jus in bello is to distinguish between soldiers and civilians, and between military objectives and civilian objects . There are heavy qualifications - militaries cannot use indiscriminate force, or weapons whose destructive force are unlimited. In response to this asymmetric situation, Hamas has built a network of tunnels and a vast supply of rockets positioned, according to numerous reports, in civilian locations in order to leverage its threat against Israel.
The Gaza War of 2014 was triggered by the kidnapping and murder of three Israeli teenagers in the West Bank . "Now, they came to the fork in the road which Israel assumed they would get to," says Ziv Bohrer, of the Law Faculty at Bar-Ilan University. Israel therefore no longer sees Hamas as a force it can deter. In turn, the military establishment has upgraded its understanding of"proportionality" and"military advantage."
"We are interested in dismantling Hamas and the governmental facilities of Hamas because they facilitate its military activities," says Professor Asa Archer, the philosopher who jointly wrote the IDF’s first code of conduct. In 2002, the Public Committee Against Torture in Israel and a Palestinian NGO took the government to court arguing the policy of targeted killing was in breach of International Humanitarian Law.The court did not conclude that targeted killings were illegal, but held that under"customary" international law civilians were protected against attack if they weren’t taking part directly in hostilities.
After the Gaza War of 2014, Israel formalised this policy in a report, contradicting not just its own Supreme Court but also a United Nations investigation into the horrendous level of civilian casualties during the 2014 war. Following the 2014 Gaza war the US head of the Joint Chiefs of Staff General Martin Dempsey said Israel had gone"to extraordinary lengths to limit collateral damage and civilian casualties."
"Proportionality is monitored," Schmitt and Merriam concluded,"to the extent feasible, until the moment of weapons release. If significant new intelligence surfaces, a reassessment by all relevant officers involved in the targeting process, including the legal advisor, is required. Whenever feasible, the IDF employs various precautions aimed at avoiding, or at least minimizing, the collateral damage expected from the attack.
He cites a scenario where a terror target has been located but a school bus full of children appears. Ziv Bohrer, from the law faculty in Bar-Ilan University, argues the high death toll is a function of Israel’s expanded war aims, and the density of the population in Gaza. On 30 October, the International Criminal Court prosecutor Karim Khan acknowledged that Israeli military lawyers were part of a system"intended to ensure their compliance with international humanitarian law".
The view in Israel is that not only has Hamas changed the character of Gaza, it has, in the words of law expert Ziv Bohrer,"designed the battlefield in a way that necessarily increases civilian casualties."
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