Getting the law right on the Israel-Hamas conflict

International law has quite a lot to say about the latest violence that has flared up between Israel and Hamas. So do the media. Unfortunately, they rarely match, leading to unfortunate — and sometimes egregious — misrepresentations. In an age when both real and perceived violations of international law have a substantial effect on the legitimacy of state action, getting it wrong is way more than just bad journalism.

The core purpose of the law of war — a centuries-old framework regulating conduct during wartime — is to protect civilians and minimize suffering during wartime. In any conflict, all parties — states, rebel groups, terrorist organizations — have obligations to minimize harm to civilians. For each party, these obligations take two primary forms: protecting civilians in the areas where it is attacking, and protecting its own civilians from the consequences of attacks by the enemy party. Attacking parties must 1) attack only enemy personnel and objects; 2) refrain from any indiscriminate attacks; 3) refrain from attacks in which the expected civilian casualties will be excessive in light of the military value of the target; and 4) provide warnings for civilians of attacks where feasible. In their own territory, militaries and armed groups must refrain from locating military objectives in densely populated areas and take other steps to keep civilians out of harm’s way. Specifically, the law also criminalizes the use of civilians as human shields.

{mosads}It is particularly disheartening, therefore, when perversions of this law, through biased or faulty media coverage, effectively promote the very opposite result. Consider media coverage of Israeli strikes on targets in Gaza, of Hamas and Islamic Jihad’s rocket attacks on Israel, and of Hamas’s actions in Gaza.

First, reports have described Israel’s comprehensive system of warnings to civilians before launching strikes in Gaza as “contentious” and suggest that it is motivated solely by the desire to evade potential war crimes charges. Under the law of war, warnings are designed to protect civilians by giving them the opportunity to leave an area of hostilities and seek safety. Examples of such warnings include radio announcements, leaflets, or other generalized communications. Israel’s use of individualized, specific warnings by phone and text goes far beyond what the law requires — it is hard to imagine how they could possibly be described as “contentious,” instead of unprecedented or protective.

At the same time, the law of war does not require warnings before targeting enemy personnel — indeed, the law authorizes the use of lethal force as a first resort against enemy fighters and military objects. Imagine the absurdity of a system that required soldiers to give the enemy a chance to hide or plan an ambush by giving a warning before attacking: The United States did not warn German or Japanese soldiers before attacking them in World War II, nor should it have. Hamas militants are fighters, not civilians, and therefore are not entitled to protection from attack, just as Israeli soldiers are not protected from attack during conflict. It is the civilians of Gaza and Israel and every other conflict zone that the law seeks to protect, through a comprehensive web of protections and obligations.

Second, Hamas has announced that it is launching rockets at Haifa, at Tel Aviv, at Jerusalem and other Israeli cities. Not at military bases, army units, communication networks or any other military target, but at cities populated by hundreds of thousands, even millions of civilians. The law of war requires that parties distinguish between military and civilian targets and only attack military personnel and targets. Deliberate attacks on civilians and indiscriminate attacks — attacks that are incapable of distinguishing between legitimate targets and civilians — are prohibited and are war crimes.

Hamas and Islamic Jihad fire their rockets with either no regard for the distinction between military and civilian objects or with direct intention to harm civilians and civilian infrastructure. There is no question of taking precautions to protect civilians, whether through warnings or other required measures; rather, every single rocket attack violates the law’s most fundamental obligation to protect civilians. And yet the word “indiscriminate” rarely appears in descriptions of such rocket attacks.

Third, Hamas’s use of civilians and civilian buildings in Gaza as a shield is well known. Media reports tell of rockets being launched from residential buildings and schoolyards, munitions stored in houses, mosques and hospitals, Hamas leaders using civilian homes as command posts, and civilians being encouraged to go up on their roofs as human shields. These reports unfortunately rarely, if ever, mention that such conduct violates the law and, even more important, puts civilians at ever greater risk of death and injury.

Using human shields is not a romanticized effort at neighborhood defense — it is a war crime. Using hospitals as munitions depots or sites for rocket launchers endangers every civilian who needs medical treatment, because once the hospital is used for military purposes, it loses its protection from attack. Using houses for all manner of military activity amounts to using the civilian population as a shield and risks the life of every civilian in the neighborhood. This conduct demonstrates that Hamas not only views every civilian and every city in Israel as a target — which is wholly illegal — but that it also views every civilian and every neighborhood in Gaza as an expendable pawn in a propaganda war, a tragic and equally illegal approach.

Facilitating that conduct is an unfortunate and deadly consequence of media coverage that feeds misperceptions about how Israel and Hamas are fighting. Legitimizing lawful conduct would be far better, because law has an essential role to play in war; indeed, adherence to the law is a matter of life and death.

Blank is clinical professor of law and director of the International Humanitarian Law Clinic at the Emory University School of Law.

Tags Gaza Hamas International law Israel Israeli–Palestinian conflict Palestine
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