Posted by MataHarley on 3 January, 2009 at 2:17 pm. 8 comments already!


Disproportionate Force – moral vs legal definitions

As yet another battle rages between Israel and a terrorist group that seeks it’s destruction in it’s charter, the int’l community and leaders speak… and what they rely on for their opinion is less morality, and more legalese. That’s what it all comes down to, folks. The words, “disproportionate force” gets bandied about in the media every time there is a flare up between jihad and zionists, or Israel vs just about anyone.

But, to quote Teflon Bill in his most remembered phrase to date… “It all depends on what the meaning of “is”… is”. So when speaking of “disproportionate force”, one must consider the legal vs moral meaning of such.

Proportionality principle in int’l law

First is the legal definition using the Geneva Convention, Additional Protocol I.

For some legal eagle eye interpretation, I’m going to use the Jurist contributor, Mary Ellen O’Connell’s article – Proportionality and the Use of Force in the Middle East Conflict
– published July 200t. Subject? Proportionality as it relates to int’l law on “humanitarian” warfare during the Hezbollah-Israeli conflict in Lebanon.

Lest any of you think I am picking an Israeli sympathetic article… I am not. Ms. O’Connell is rather brutal on Israel for their actions in that conflict. But she has some pertinent info as it relates to Gaza that I want to pass on.

First, some generalities on the Add’l Protocol articles: Note: all emphasis added by me

The principle of proportionality works in conjunction with other fundamental principles of international humanitarian law, including the principles of discrimination, necessity, and humanity. The principle of discrimination prohibits the intentional targeting of civilians, persons no longer taking part in fighting because of injury, surrender and the like, and civilian property. Additional Protocol I, Article 51(2) provides, “The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.” Parties using armed force may only intentionally target military objectives, and, even then, the proportionality calculation must be applied: Will the “collateral” damage be too great to justify the attack?

Additional Protocol I Article 52(2) identifies military objectives, incorporating the principle of necessity: “Attacks shall be strictly limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”

Basic humanity must also always be observed. The excessive use of force, targeting civilians, destroying civilian infrastructure and so forth are not only considered disproportionate, unnecessary, and indiscriminate, but also inhumane.

Since none in the int’l world dare to tread on Hamas (or Hezbollah and other jihad groups) and whether their attacks are “inhumane” and illegal in int’l law, we will only address the victim of these public accusations… Israel… and whether or not their responses fit the proportionality principle.

Oddly enuf, the Dec 28th Times Online article manages to portray the media’s determined anti-Israel bias, despite citing the facts about Israel’s targets.

After weeks of rising tension and repeated Hamas rocket attacks on Israeli territory, the air force struck with warplanes and unmanned drones loaded with guided missiles.

They hit at least 100 security compounds and rocket-launching bases across the heavily populated Strip.

The strikes caused panic and confusion as black clouds of smoke rose above the territory. Most of those killed were security men — including Gaza’s police chief — but an unknown number of civilians were also among the dead.

One perfectly aimed missile demolished the Hamas-controlled Rafah police station. But the building next door was a school and several pupils were on the street outside when a huge explosion sent shards of shrapnel and concrete hurtling in all directions. Parents rushed into the streets frantically looking for their children.

The strikes on Gaza yesterday were unparalleled. Israeli warplanes screamed in from the sea across Gaza in wave after wave, pounding at least 30 security compounds in the strip controlled by the Hamas government.

At 11.30am Israeli time, the first wave of 60 F-16s screamed over Gaza, launching missiles at more than 50 targets. Israeli military sources said a total of 100 missiles were fired at Hamas police stations, command centres, training bases and illicit manufacturing warehouses.

In the second wave, 20 Israeli jets returned, following up intelligence received from drones in the skies over the Strip. They launched 50 missiles aimed almost entirely at militants who had come out with makeshift rockets to hit back.

I must be missing that deliberate targeting of civilians and innocents because everything cited there fits the goal of targets that comprise military objectives… all of which do not present a risk of collateral damage so great that these targets should be ignored.

In fact, as Charles Krauthammer points out today in his WaPo article – Moral Clarity in Gaza – Israel is so “scrupulous” of civilian life that it risks the very element of surprise by giving the enemy and area civilians advance warning.

This has two purposes. First, counting on the moral scrupulousness of Israel, Hamas figures civilian proximity might help protect at least part of its arsenal. Second, knowing that Israelis have new precision weapons that may allow them to attack nonetheless, Hamas hopes that inevitable collateral damage — or, if it is really fortunate, an errant Israeli bomb — will kill large numbers of its own people for which, of course, the world will blame Israel.

For Hamas, the only thing more prized than dead Jews are dead Palestinians. The religion of Jew-murder and self-martyrdom is ubiquitous. And deeply perverse, such as the Hamas TV children’s program in which an adorable live-action Palestinian Mickey Mouse is beaten to death by an Israeli (then replaced by his more militant cousin, Nahoul the Bee, who vows to continue on Mickey’s path to martyrdom).

At war today in Gaza,one combatant is committed to causing the most civilian pain and suffering on both sides. The other combatant is committed to saving as many lives as possible — also on both sides. It’s a recurring theme. Israel gave similar warnings to Southern Lebanese villagers before attacking Hezbollah in the Lebanon war of 2006. The Israelis did this knowing it would lose for them the element of surprise and cost the lives of their own soldiers.

To battle the historic media bias Israel is always subjected to, they attempted to use the new media to promote transparency in their warfare by the creation of their own YouTube channel to disseminate footage of their precision bombing operations in Gaza. This dedicated IDF/YouTube site has, at this publishing, 24 videos available, and the ability to subscribe to the newly added footage.

The YouTube censors have removed some of the footage presumably since some have shown militants blown up while in the midst of operations (i.e. loading rockets into trucks). YouTube has not issued a public statement on their censorship.

Again, using Ms. O’Connell’s rationale for protection of citizens, and targeting only military objectives, Israel’s response to Hamas in Gaza does not meet the “disproportionate” accusations per international law standards.

It can, however, be said that Hamas’ actions most definitely violate int’l law.

Old rules of warfare for a new kind of enemy

Today’s enemy is most often stateless. They do not wear not distinguishing uniforms, and more often conduct their cowardly warfare while hiding behind civilians as a human shield.

This, of course, makes the use of int’l law as the criteria for morality in warfare somewhat laughable. For example – again from the Additional Protocol, established in the late 70s:

Article: Art 44(3) In order to promote the protection of the civilian population from the effects of hostilities, combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he
carries his arms openly:

(a) during each military engagement, and
(b) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.

Since we already know Hamas does not necessarily have all it’s operatives in uniform, what is the IDF supposed to do when it’s unclear if the target has majority of Hamas operatives, or civilians?

According to Chapter II, Article 50(1):

Art 50. Definition of civilians and civilian population
1. A civilian is any person who does not belong to one of the categories of persons referred to in Article 4 (A) (1), (2), (3) and (6) of the Third Convention and in Article 43 of this Protocol.In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.

Using that as a guideline, US or coalition troops will have little chance of defending themselves.. nor of winning conflicts. In fact, we have just described the politically correct NATO rules of engagement for the most part. When in doubt whether a person is a civilian, that person shall be considered to be a civilian. It’s a recipe for death… waiting for the enemy to show his or her status as a combatant.

As if identifying the enemy were not complex enough, this conveniently vague language allows Hamas to claim deaths of their operatives and cohorts *not in any uniform* as “citizens”… therefore allowing them to slide beneath contempt of international law.

Are we done? Heck no. Chapter II, Article 53(a, b & c) prohibits targeting places of worship and cultural landmarks.

Without prejudice to the provisions of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954, and of other relevant international instruments, it is prohibited:

(a) to commit any acts of hostility directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples;
(b) to use such objects in support of the military effort;
(c) to make such objects the object of reprisals.

But, as the IDF YouTube Vlogs openly state, Hamas uses mosques and civilian facilities for storage for munitions. They fully admit targeting mosques used in this purpose, and make no apologies for it.

Needless to say, using the int’l laws created decades ago for an era today (when the enemy is not a country, but ideological power mongrels) has it’s drawbacks. It’s time for the international world to get on the stick, and recognize the rules have changed… at least for those who actuall follow rules.

Morality – The legality of Hamas in Gaza

Again, back to Ms. O’Connell’s Jurist piece in 2006…

…the case of Hamas in Gaza is much more complicated. It seems most accurate to continue to treat Gaza as an area of occupation. Palestine as a whole is not yet a sovereign state, in part because Israel is still in occupation of the West Bank. Israel pulled its settlements from Gaza but seemed to continue to exercise a sort of quasi-occupation of Gaza. Israel has the legal obligation to end its occupation, but, while the occupation continues it has the right to keep order. Thus, Israel may have had a lawful basis for responding to Hamas that included sending forces into Gaza. The forces needed to respect the principle of proportionality in using force to respond to Hamas.

Rather prescient, tho not unexpected, by Ms. O’Connell. At this time the Palestinian Authority had recent elections… elections that were only made possible by the Oslo Accords back in 1993, and ensuing amending agreements. Per the agreement’s principles, there was supposed to be a five year period for the policing, security and transfer of territories…. the specifics of such to be determined later… and the withdrawal of Israeli forces in Gaza and the West Bank.

From the onset, the areas were split into three..

Area A – full control of the Palestinian Authority.
Area B – Palestinian civil control and Israeli security control.
Area C – full Israeli control, except over Palestinian civilians. These areas were Israeli settlements and “security zones.”

In addition, both the PLO and Israel signed letters of mutual recognition… Israel acknowledged PLO was the representative of the Palestinians, and the PLO recognize Israel’s right to exist, and would renounce terrorism and drop it’s stated destruction of the Jewish state.

Many events have transpired, and many updated agreements. But one thing has never altered. Hamas does not recognize, nor honor the Oslo Accord agreements. In fact, Hamas leadership has labeled implementation of shared security agreements under the Oslo Accords as “treasonous”…. Which is rather ironic as their very existance in the PA government was only made possible by that same agreement.

After Hamas’ majority victory over Fatah in Jan 2006, infighting broke out between the two parties resulting is as many deaths as Israel has inflicted on Hamas agents and leaders in this conflict. PA’s President Mahmoud Abbas outlawed the Hamas militias and executive forces in June 2007.

In response, Hamas staged a coup and seized control in Gaza that same month. By one year later, the news was reporting about the increased al Qaeda activity in Gaza under Hamas control, operating overtly, but in smaller mosques. Hamas was careful not to be seen as an Islamic state, preferring instead to allow extremist thinking to breed armed cells

Many Gazans say they have felt pressured by the widespread presence of Hamas fighters into adopting more Islamic ways. “I know many people who have changed their mobile phone ringtones to Islamic songs,” said teacher Abu Emad. “Some women have started covering their hair especially when they go out.” Yet some women say they have even felt freer not to wear a headscarf because of a sense of greater security in the streets following the end of the factional fighting last June. “I don’t like Hamas but I feel more secure these days going without a scarf in the street because Hamas policemen do not curse us,” said Ahlam, a secretary. Abu Emad, who asked that his full name not be used for fear of problems with the authorities, said he believed people were wary of their new Islamist rulers. “Yet still, Hamas is not the Taleban and their rule is not so strictly Islamic,” Abu Emad said.

Talk about the lesser of two evils…

Returning Gaza to the Palestininan Authority

Instead, the int’l community seems to accept Hamas’ control over Gaza as legitimate. Which becomes even more interesting, because the true representative of Gaza – the Palestinian Authority – is standing by, prepared to reassume control if Israel succeeds in removing the illegal presence of Hamas militants and their control.

Palestinian Authority officials in Ramallah said Saturday that they were prepared to assume control over the Gaza Strip if Israel succeeds in overthrowing the Hamas government.

“Yes, we are fully prepared to return to the Gaza Strip,” a top PA official told The Jerusalem Post. “We believe the people there are fed up with Hamas and want to see a new government.”

Another PA official said Fatah had instructed all its members in the Gaza Strip to be prepared for the possibility of returning to power.

“We have enough men in the Gaza Strip who are ready to fill the vacuum,” he said. “But of course all this depends on whether Israel manages to get rid of the Hamas regime.”

This is looking less and less like a Palestinian v Israel battle, and more an endeavor to return to the Oslo Accord original principles between the PA and Israel. An agreement where security was shared, and withdrawal and control were turned over after benchmarks met by both sides.

Disproportionate? Israel is defending not only itself, but Palestinians in a territory where Israel has security obligations. The Gazans have lived under Hamas control gained by violence and military coup. And apparently, even the Palestinian Authority would welcome the removal of their presence.

There is no doubt that both sides have had their setbacks over the past 15 years since the Oslo Accord I. And you’ll find that the majority of those setbacks included interference by Hamas leadership. The PA, the Gaza Strip residents will benefit along with Israel with Hamas’ removal from illegit power. And I, for one, wish them luck.

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