Saturday, July 12, 2014

Does the Hamas Response to Israel’s Abrogation of the Cease Fire Violate Just War Principles?

The beginning of the current round of hostilities should be dated from Israeli actions in a Gaza tunnel that resulted in the deaths of six Hamas militants. Although Israel denied responsibility, it admitted that it had carried out operations in the area that plausibly led to the incident. This was Monday night, and Hamas retaliated with rockets. A time line can be found here; thus started the current round of hostilities.

If we assume that Israel had a hand, directly or indirectly, in the deaths of the Hamas militants, that would be a serious breach of the cease fire, and, assuming that no other effective recourse was open to it, it would be permissible for Hamas to retaliate militarily, at least according to just-war theory.  It would be hard to argue that just war theory can only apply to state actors, and that Hamas, a “terrorist organization”, is not a state actor – because Israel considers Hamas to be the governing body of Gaza, and hence accords to it some of the responsibilities of a state actor. (This would be different, for example, were Hamas to be operating in the West Bank in areas under Israel’s direct control.)

The only principle I can think of that would counter this is that the Palestinians do not have a right to self-defense. I can’t think of any convincing argument for this.

So having established that the Palestinians in Gaza have a right to self-defense, and hence, to retaliate (jus ad bellum), the question would then turn to the morality of their conduct of military operations (jus in bello) And here they are on much weaker ground, since their conduct consists solely in indiscriminate rocket firing towards civilian targets.

Yet this is where the question gets interesting:  were the Palestinians to have a serious weapons capability, and were they then to fire indiscriminately then it is clear that their conduct of the operations would violate just war principles. The same would certainly be true if Hamas turned to suicide bombing. But, paradoxically, the primitiveness of the rockets, together with the Iron Dome defense, and Israel’s early warning system, has so far guaranteed few if any civilian casualties. True, there is some damage, and certainly there is the inconvenience of having to go to shelters, and the rockets make people anxious, despite the heavy odds against them being hurt. It may be irrational to buy a lottery ticket, given the odds, but people do all the time. Still, the fact that the odds  that a given person will be actually hurt by a Kassam rocket are extremely low, virtually nil, given early warning systems and Iron Dome, plus the Hamas’ militants knowledge of this fact, suggest that if this method of conduct is not just (and I don’t think it is), it is a lot less unjust than the Israeli response, which has claimed to date over a hundred lives, most of whom are civilians.  It is certainly no exaggeration to say that the Israeli public’s suffering does not compare to that of the Gazan people on any metric; the Israelis have a highly effective defense against primitive weapons, whereas the Gazans have no defense at all against highly sophisticated and deadly weapons.

So both sides are committing war crimes, but those of Hamas pales in comparison to those of Israel. And this, of course, without reference to the fact that Israel broke the cease fire. 


Shaun said...

If we assume that both sides are guilty of crimes, and “…both sides are committing war crimes, but those of Hamas palls in comparison to those of Israel.”
I say that your assessment is missing two major definitions. Clearly defined by The Rome statute:
Attacks from populated areas
Article: 8(2)(b)
Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:…..
(xxiii) Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations;
By the above definition, any and every rocket launched from a populated area in Gaza, Regardless of the damage caused is a separate war crime. This exponentially increases the amount of Hamas war crimes.
More importantly, I would go further and argue that even though Israel activities may be defined as war crimes according Hamas should face harsher penalties than Israel for its actions, regardless of the causality rate.
Article 17: 3 Issues of admissibility
Israel has a judicial system that can in theory prosecute those who contravene these laws. Hence the International court’s jurisdiction, by its own definition is limited.
Hamas on the other hand has no such system in place hence the statue could apply to every Hamas violation more so than with Israel.
I realize that this is a highly emotional topic and despite what you may think I will not try and Justify Israeli actions. I am arguing in a detached manner that you are missing the above considerations.

Jerry Haber said...

If indeed Hamas fires from civilian areas, endangering the civilian population, than that constitutes a war crime. You are correct. But if you look at the Goldstone report on Cast Lead, you will see that the commission was skeptical of many of Israel's claims in this regard. Moreover, both the principle of discrimination and the principle of proportionality still limit Israel's reactions, and in this case, there is strong preliminary evidence that targets chosen are not related to eliminating rocket launches, etc.

Both Hamas and Israel's militaries have judicial systems in place to try their soldiers for war crimes. Neither has in fact done so in relation to Gaza. Well, that's not entirely so. Israel's military court famously found a soldier guilty in Cast Lead for misusing a stolen credit card. You are aware that soldiers are not judged in civilian courts.

Shaun said...

Thanks for the answer.
Regarding the matter of Judicial systems I would argue that as cynical as Israel’s legal treatment of soldiers may have been in relations to Gaza, None the less, there exists a recognized judicial system. That has the potential and a past record of convicting soldiers of criminal activity in a war zone. Hamas does not have this system and have never to my knowledge convicted any of its members of wrong doing against Israeli non-combatants. If you have evidence to the contrary I will gladly withdraw this point.
Regarding the principal of distinction. While the death of civilians is always regrettable, civilian deaths is not a criminal act provided that the military attack is not intentionally directed against civilians. (Article 8 2b) However, this principal is partially negated when a civilian structure is used for clearly military purposes according to article 52 of the Geneva Convention. Hence Israeli attacks on houses that Israel claims are being used for military purposes, are legitimate and legal targets. Furthermore the IDF Israel acknowledges that as these structures are dual purpose, and they gives the mandated, prior warning to civilians before an attack, as stipulated by law.
The question of collateral casualties however is still a relevant issue and that I will answer with by countering your argument of proportion.

In the case of article 51 of the Geneva Convention and article 8.2 of the Rome statute, both make use of the terminology “clearly excessive”. Beyond legal jargon, I would argue on technicality that, if we look at the amount of attacks carried out by the IDF to date, coupled with the relatively low casualty rate vis-à-vis ordnance used, clearly is Israel is paying heed to the principal of excessive force with all the implied inter alia.
Finally in the case of Goldstone, I am skeptical of their skepticism regarding IDF claims of civilian structures being used for military purposes. Primarily, because I have personal evidence to the contrary. but also because, Justice Goldstone himself has said that his conclusion may have been different “if he had known then what he knows now…” referring to evidence of civilian structure being used for military purposes that was to the commission by Israel as it chose not to cooperate with the commission.
Finally, in further reference to Goldstone, despite the heavy criticism leveled against it by Israeli leaders and the IDF brass. The commission did have an effect on IDF operations and even though this effect may be limited may be limited, these changes further serve to reinforce the idea that the Israeli military has activity has taken into account pervious shortcomings that may have resulted in crimes and has worked to address these failings.

Sincerely Shaun

Side point, I have not opened my responses with a greeting as I’m really not sure how to address you on this forum. Do you have a preference of your nom de plume or your earned title?

Shaun said...

As of 12:30 today, Hamas has fired over 20 rockets since the cease fire. Do any of these count as violations?
The problem with you above legal definition is this: If the 20 rockets fired today are violation of the cease fire, then Israel may legally respond. Yet by responding Israel has threatened the status of the cease fire.
If today’s round of Hamas rockets are not any kind of legal violation, then Israeli is under no obligation to hold its fire and should continue attacking.
All of this is based purely on technical legal terms. Proportionality and distinction were discussed in my previous answer to you.

Jerry Haber said...

Shaun, quick answer to your latest comment. There is no agreed-upon cease-fire (as of 2:40pm) so Hamas cannot be violating it.

As for your other points, let me just focus on one: the question of intent. How is intent measured? If the IDF spokesperson says it doesn't intend to hurt civilians, or destroy civilian infrastructure, that seems to be sufficient for you. You write: Hence Israeli attacks on houses that Israel claims are being used for military purposes, are legitimate and legal targets. No, they aren't, if Israel is wrong, or if the force used is disproportionate, or if Israel doesn't sufficiently observe the principle of distinction (e.g., prefers civilian casualties of Gazans to that of its own soldiers.) Yet it is hard to expect Israel, or any country, in this day and age of international human rights law, to admit to any wrongful intent. So intent has to be inferred from all sorts of evidence. And I would suggest that a bit more skepticism is warranted, especially since there are documented cases of the IDF advancing claims, and then when confronted with video evidence to the contrary, had to backtrack.

I think you will agree that the last people to decide whether war crimes are being perpetrated are the parties to a conflict. What Israel and Hamas have to say about the subject has some relevance, but cannot be overriding.

Finally, I wrote a lot about what Judge Goldstone retracted and did not retract, defending him from misinterpretations of the left and the right.

Here's one piece:

YoMo57 said...

I am not sure why you evaluate the "justness" of the actions of the two sides according to the number of casualties caused as opposed to intent and rationale. Let's imagine that Iron Dome suddenly malfunctioned, and Hamas thereby managed to kill Israeli non combatants. According to your argument the same action by Hamas which you currently suggest is a lesser crime, would suddenly become a greater crime, even though the intent and action itself are identical. Israels actions being war crimes is predicatd on the notion that Israel intends to kill non combatants. Given the huge number of targets hit by Israel, and the location of Hamas weapons in civilian areas, the relatively low number of casualties would suggest enormous efforts to spare civilians.

YoMo57 said...

I am not sure why you evaluate the "justness" of the actions of the two sides according to the number of casualties caused as opposed to intent and rationale. Let's imagine that Iron Dome suddenly malfunctioned, and Hamas thereby managed to kill Israeli non combatants. According to your argument the same action by Hamas which you currently suggest is a lesser crime, would suddenly become a greater crime, even though the intent and action itself are identical. Israels actions being war crimes is predicatd on the notion that Israel intends to kill non combatants. Given the huge number of targets hit by Israel, and the location of Hamas weapons in civilian areas, the relatively low number of casualties would suggest enormous efforts to spare civilians.

Jerry Haber said...


Sorry, but that's Bernard Williams famous example of "moral luck". You are backing out of a driveway, and you don't look. Nothing happens. Most people would blame you for carelesness and nothing else. But suppose that you ran over a child on a tricycle. You would be blamed for a lot more than just carelessnes, but serious negligence. Now what's the difference in the cases. Basically, bad luck. Why should that factor in our ascriptions of moral responsibility?

The answer is in large part due to probability. Israel boasts about its ability to pinpoint targets. So were it to, say, bomb an orphanage and kill 100 children, that could easily be seen as negligence, maybe worse, but certainly insufficient discrimination. We don't excuse soldiers or police officers when they "oops, my bad; I didn't mean to." We investigate, and if insufficient care was taken in selecting or executing targets, blame should be assigned. And, needless to say, neither Hamas nor the IDF should be the last word in the investigation.

Frankly, all the evidence show that Hamas fully knows that the likelihood of killing any civilians with rockets is low. They are not stupid, nor are they endangering their lives and the lives of population, not to mention spending a lot of money, by firing rockets that they know will not succeed. So why are they doing it? I assume just to show that they can do it, that they can keep Israel busy trying to suppress resistance.

Numbers of civilian casualities is an indicator, not a determinant, of war crimes. Had the Nazis killed 1 million Jews, that would have been horrible, but the death of 5 1/2 million Jews is a lot worse. So, yes, what makes Hamas guilty of war crimes is indiscriminate firing of rockets, even though the chances of their killing people is nill. As to what numbers matter -- the answer is as an indicator of intention. How do we know the Israelis don't intend to scare the hell out of the Gazans in such a way as not to get the world too riled up against Israel. Because they say that's not their intention? And if Hamas sent out messages in advance warning civilians in Tel Aviv to leave their homes, we would believe that their intention was noble?

In short -- one cannot rely on what the IDF or Hamas says. What one has to infer from what they do.

YoMo57 said...

There are at least 3 critical distinctions between Hamas and a driver backing out of the driveway that greatly weakens the relevance of the analogy. The driver's intention is, say, to get to work. Killing a pedestrian would be 1. unintentional. 2 undesired and 3. greatly regretted. A lethal Hamas rocket would be inentional, desired and celebrated.
Regarding insufficient care, in the context of war, with all that implies for imperfect information in rapidly changing circumstances, the low (compared to potential) civilian fatality rate is strong prima facie evidence of enormous effort to minimise injury.Again, your comparison with a policing error is not entirely appropriate- rather use s your yardstick other war examples. Can you produce a precedent in war where a better standard of care was observed? If Hamas sent accurate warnings AND were doing their best to target military installations, then yes I would be more inclined to believe their intentions were "noble".

Jerry Haber said...
This comment has been removed by the author.
Jerry Haber said...

YoMo57, you missed the point of the analogy -- it was in reaction to your point about the sudden malfunction of Iron Dome, which would be something that Hamas would not anticipate, like the child on the tricyle.

You see, you think that the intention of the Hamas is to kill many civilians. But that assumes that they are idiots and they don't realize that that they have killed virtually no civilians. Do you really think that each time they fire a rocket they are hoping that this time they will kill civilians? That's simply pathetic.

What an army can potentially do is more complicated than you think. Say the US goes into Iraq and wipes out a town of one thousand civilians. When it is pointed out to the armty that this is hardly discriminate bombing, a US general says, "Excuse me, but we have the nuclear weapons to bomb them into the stone age. We could cause millions of causalities. So you are going to have trust us when we say that it was necessary to kill one thousand.

That's basically the argument you are making, and it rings hollow in both cases.

Israel doesn't have the ability to kill tens thousands of Palestinians. Technically, it does, but if it did, it would commit national suicide. May I remind you that Bibi called the Goldstone Report an existential threat. There are real limits to what Israel can and cannot do politically. So when you assess responsibility for war crimes, you have to take into account many factors.

Finally, it is clear that Hamas takes greatest pride in defeating Israeli soldiers, not in killing civilians. We know that from the events of today. So it is also clear that had they the ability. they would target Israeli soldiers, just as the IDF targets Hamas militants. But they don't have the ability. That may not be a factor in assessing responsibility for war crimes. There is no excuse for targeting civilians, even if there is virtually no chance the civilians will actually by hurt. But what one can say is that if Palestinians could fight effectively against the IDF, using advanced aircraft and missile systems, and preferred instead to target civilians, then that would be worse than the current state of shooting primitive pockets because those are the only rockets one has to fight the people who are oppressing you.

When the Zionists did not have military capabilities, some of their groups engaged in terrorism against civilians. it is very common in national liberation movements for this to happen. Common, but regrettable.

YoMo57 said...

yes, I understand the shared features of the two cases you emphasise is the unexpectedness of an intercurrent event creating an unanticipated outcome - but the wakness of the analogy holds in that in one case the outome is 1. unintentional. 2 undesired and 3. greatly regretted. and in the other, though unexpected, the outcome is plausible and desired (leving aside the ddersired outcome of engendering fear and social dispruption.
Ob the other point, can you cite an example of military operations in dense urban settings where the death/action ratio has been so low and the measures taken to warn civilians so great

Jerry Haber said...

YoMo57, an indiscriminate bombing of civilians, where discrimination is impossible, is sometimes morally preferable to a "discriminate" bombing, where the discrimination is based on the complete control the bombers have over those bombed.

Israel informs people to vacate their houses before those houses are bombed. At first glance, this seems more moral than not informing them. In fact, they can only do this because they have complete intelligence based on Israeli control over the cell phone network, where they collect data that in other societies would be subject to privacy laws. But Gazans have no right to privacy just as they have no right to free movement. Gazans are in a prison controlled by Israel. So your calls for examples of other "wars" where urban bombing is discriminate are irrelevant, because this is not a question of two countries at war; it is not even analogous to a civil war, because the Gazans have no effective control over Gaza, unlike, say Syrian rebels. So having Israelis say, "You have five minutes to leave your house" and then bombing the house in five minutes is deeply humiliating and degrading, and not a sign of humanitarianism or concern -- especially when Israel has no right to do so, does not intend to compensate the innocent, and in many cases, has not provided for places for people to take shelter.

Ael said...

I agree with Jerry.

A quick comparison of the ratio of military to civilian casualties caused by the IDF to the ratio caused by Hamas tells you a lot.

Furthermore, the IDF giving advance notice about bombing someplace tells you that they are *not* trying to target militants. After all, a military target will not stand still and get bombed after being given a warning. The IDF knows this and then bombs anyway.

Clearly, the intention is to punish the population in a hope to decrease political support for Hamas.

Aviv said...


You are missing some basic assumptions in under your facts :
1. Hamas had dropped missiles during the last months every now and then on civilian areas in Israel.
2. Hamas continued to dig tunnels aiming to kill and kidnap Israeli civilians (They equipped the tunnels with IDF uniform, anesthetic and weapons)
3. Israel indeed perform the operation in the tunnel you mentions BUT and here comes the big hole in your analysis - This is a PREVENTIVE action to avoid casualties , injured and hijacked civilians.

What do you expect Israel to do in order to prevent that from happening? Ask kindly from Hamas? That would surely succeed.

This is not the way any western country would solve such situations. There is no any other way (and that's too bad) to solve this issue when one side wants to destroy the other without any values to it's own people lives.

Aviv said...

Comparison of rations is irrelevant.
There is a clear advantage to the IDF and it takes the appropriate (Than any other country) precautions before doing an action (You can see that easily by going into IDF facebook page where there is movies documenting it on live).

It's a situation of it's them or us since there is nobody to talk with in the Gaza strip. and since this is the situations - This is the only way.