The rights and wrongs of killing civillians New Economist

Gaza: the rights and wrongs
Dec 30th 2008
From The Economist print edition

Israel was provoked, but as in Lebanon in 2006 it may find this war a hard one to end, or to justify

THE scale and ferocity of the onslaught on Gaza have been shocking, and the television images of civilian suffering wrench the heart. But however deplorable, Israel’s resort to military means to silence the rockets of Hamas should have been no surprise. This war has been a long time in the making.
Since Israel evacuated its soldiers and settlers from the Gaza Strip three years ago, Palestinian groups in Gaza have fired thousands of rudimentary rockets and mortar bombs across the border, killing very few people but disrupting normal life in a swathe of southern Israel. They fired almost 300 between December 19th, when Hamas ignored Egypt’s entreaties and decided not to renew a six-month truce, and December 27th, when Israel started its bombing campaign .To that extent, Israel is right to say it was provoked.

Of provocation and proportion

It is easy to point out from afar that barely a dozen Israelis had been killed by Palestinian rockets since the Gaza withdrawal. But few governments facing an election, as Israel’s is, would let their towns be peppered every day with rockets, no matter how ineffective. As Barack Obama said on a visit to one Israeli town in July, “If somebody was sending rockets into my house where my two daughters sleep at night, I’m going to do everything in my power to stop that. And I would expect Israelis to do the same thing.” In recent months, moreover, Hamas has smuggled far more lethal rockets into its Gaza enclave, some of which are now landing in Israeli cities that were previously out of range. On its border with Lebanon, Israel already faces one radical non-state actor, Hizbullah, that is formally dedicated to Israel’s destruction and has a powerful arsenal of Iranian-supplied missiles at its disposal. The Israelis are understandably reluctant to let a similar danger grow in Gaza.
And yet Israel should not be surprised by the torrent of indignation it has aroused from around the world. This is not just because people seldom back the side with the F-16s. In general, a war must pass three tests to be justified. A country must first have exhausted all other means of defending itself. The attack should be proportionate to the objective. And it must stand a reasonable chance of achieving its goal. On all three of these tests Israel is on shakier ground than it cares to admit.

It is true that Israel has put up with the rockets from Gaza for a long time. But it may have been able to stop the rockets another way. For it is not quite true that Israel’s only demand in respect of Gaza has been for quiet along the border. Israel has also been trying to undermine Hamas by clamping an economic blockade on Gaza, while boosting the economy of the West Bank, where the Palestinians’ more pliant secular movement, Fatah, holds sway. Even during the now-lapsed truce, Israel prevented all but a trickle of humanitarian aid from entering the strip. So although Israel was provoked, Hamas can claim that it was provoked too. If Israel had ended the blockade, Hamas may have renewed the truce. Indeed, on one reading of its motives, Hamas resumed fire to force Israel into a new truce on terms that would include opening the border.

On proportionality, the numbers speak for themselves—up to a point. After the first three days, some 350 Palestinians had been killed and only four Israelis. Neither common sense nor the laws of war require Israel to deviate from the usual rule, which is to kill as many enemies as you can and avoid casualties on your own side. Hamas was foolish to pick this uneven fight. But of the Palestinian dead, several score were civilians, and many others were policemen rather than combatants. Although both Western armies and their foes have killed far more civilians in Afghanistan and Iraq, Israel’s interest should be to minimise the killing. The Palestinians it is bombing today will be its neighbours for ever.

This last point speaks to the test of effectiveness. Israel said at first that, much as it would like to topple Hamas, its present operation has the more limited aim of “changing reality” so that Hamas stops firing across the border. But as Israel learnt in Lebanon in 2006, this is far from easy. As with Hizbullah, Hamas’s “resistance” to Israel has made it popular and delivered it to power. It is most unlikely to bend the knee. Like Hizbullah, it will probably prefer to keep on firing no matter how hard it is hit, daring Israel to send its ground forces into a messy street fight in Gaza’s congested cities and refugee camps.

Now cease fire

Can Israel have forgotten the lesson of Lebanon so soon? Hardly. If anything, its campaign against Hamas now is intended to compensate for its relative failure against Hizbullah then. With Iran’s nuclear threat on the horizon, and Iranian influence growing in both Lebanon and Gaza, Israel is keen to remind its enemies that the Jewish state can still fight and still win. Precisely for that reason, despite its talk of a long campaign, it may be more receptive than it is letting on to an immediate ceasefire. Its aircraft have already pummelled almost every target in Gaza. Further military gains will be harder. A truce now, if Hamas really did stop its fire, could be presented to voters as the successful rehabilitation of Israeli deterrence.

But a ceasefire needs a mediator. Mr Obama is not yet president, and George Bush has so far hung back, just as he did in 2006 while waiting for an Israeli knockout blow that did not come. This time, he and everyone else with influence should pile in at once. To bring Hamas on board, a ceasefire would need to include an end to Israel’s blockade, but that would be a good thing in itself, relieving the suffering in Gaza and removing one of the reasons Hamas gives for fighting.

After that, Mr Obama will have to gather up what is left of diplomacy in the Middle East. It is not all hopeless. Until this week, Mahmoud Abbas, the Palestinian president, was talking to Israel about how to create a Palestinian state in the West Bank and Gaza. But Mr Abbas presides over the West Bank only, and little progress is possible so long as half of Palestine’s people support an organisation that can still not bring itself to renounce armed struggle or recognise Israel’s right to exist. Since Hamas is not going to disappear, some way must be found to change its mind. Bombs alone will never do that.

Proportional to what?

Dec 30th 2008
From The Economist print edition

The rights and wrongs of killing civilians

IN THE arithmetic of death, the latest fight between Israel and Hamas has been an unequal contest: more than 350 Palestinians killed in Israeli air strikes in the first four days, many of them civilians, against four Israelis killed by Hamas’s rockets. But does such one-sided bloodshed make Israel guilty of using “disproportionate force”, as argued by, among others, Amnesty International and Nicolas Sarkozy, the French president, just ending his six-month presidency of the European Union?

Proportionality is intimately bound up with notions of the just war, and has been enshrined in treaties regulating warfare’s conduct since the Hague Convention of 1907. But familiar as it is, proportionality is a slippery idea. It has two different meanings in Western theory. On the grounds for going to war, jus ad bellum, the cause must be important enough to justify force; any good that will follow must outweigh the inevitable pain and destruction. In the conduct of war, jus in bello, any action must weigh the military gain against the likely harm to civilians.
Human-rights law has developed mostly in terms of jus in bello. The Geneva Conventions of 1949, dealing mainly with the protection of non-combatants in conflicts between states, were updated in 1977 to include more explicitly wars within states. Israel and the United States have not ratified the later protocols, though they do not really question the principle that armies must avoid “an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated”.
The arguments are over the nebulous facts of a particular incident. Did Israel do enough to avoid civilian deaths? Do Palestinian policemen count as combatants? For Israel, the use of overwhelming force is both legitimate and, given its desire to restore its “deterrent effect” towards its enemies, sometimes necessary. Israel says that intent is what matters: it says it tries to avoid civilian deaths, whereas Hamas deliberately seeks to kill Israeli civilians with its rockets, relatively ineffective as they may be. Hamas responds with two arguments: as the disproportionately weaker party, Palestinians must use the crude means at their disposal to free their lands from Israeli occupation; more controversially, it often says there are no Israeli civilians since most Israelis serve in the army.

Proportionality in jus ad bellum and jus in bello are hard to separate: indiscriminate killing will colour the view of whether a war is justified; and even proportionate actions in battle will be denounced if the war is deemed unjust. In the Israeli-Palestinian context, arguments about legality fast turn into ones about history. If the tit-for-tat starting point is Hamas’s rocket attacks, then the Israelis have a right to defend themselves; if it is Israel’s occupation of Palestine or the dispossession of Palestinians when Israel was born in 1948, then Palestinians can argue for a right to resist. Proportional or not, the killing of innocents will go on until the dispute is settled.