At the highest levels of government this week, there was debate over whether Israel should or has the right to fire back at rocket launchers in Gaza, even when those launchers are located in the heart of civilian areas.
Ministers such as Haim Ramon argued that Israel has such a right, while legal authorities reportedly argued that such responses might be illegal under international law.
To some, this debate might sound surreal. The right of self-defense would seem to be meaningless if it does not include the right to hit back at the source of a rocket aimed at Israeli homes, schools and streets. On the other hand, Israel is determined - for practical, moral and legal reasons - to minimize Palestinian civilian casualties, even as Hamas is trying to maximize them.
How can this dilemma be confronted? The Foreign Ministry, to its credit, has issued an analysis of how international law deals with the challenge of avoiding civilian casualties during warfare, and how Israel applies this law. It is well worth reading, especially by governments making rather astounding pronouncements on the subject.
On March 2, for example, a European Union presidency statement urged Israel to "refrain from all activities that endanger civilians" on the grounds that "such activities are contrary to international law."
The first major problem with this charge is that, according to international law, all use of force by non-state organizations, and certainly by a terrorist group like Hamas, is illegal, while all states have not only the right but the responsibility to defend their citizens.
The second problem is that Article 28 of the Fourth Geneva Convention states, "The presence of a protected person [a civilian] may not be used to render certain points or areas immune from military operations." In other words, the idea that Israel must fight Hamas without endangering civilians is contrary to the letter and spirit of international law.
Third, as the Foreign Ministry paper put it with considerable understatement, "A survey of international practice suggests that... [Israel's] approach toward proportionality corresponds to, or is more stringent than, that taken by most Western countries confronting similar threats."
As the paper explains, Israel's military doctrine and practice strives to track international law, which requires that military actions target only "legitimate military objectives" and must be "proportionate." Moreover, proportionality is not defined by a numbers game of counting casualties on each side, or by a specific triggering attack, but by the overall threat that the operation is required to address.
Every nation is required to balance the threat faced by its citizens, the military advantage that may be gained from a particular operation, and the need to avoid "collateral damage" to civilians. This is, needless to say, not easy. Moreover, who is responsible for such delicate, life-and-death decisions in time of war?
According to a special committee established by the International Criminal Tribunal to review NATO bombings in Yugoslavia, some of which caused dozens of civilian casualties: "It is unlikely that a human rights lawyer and an experienced military commander would assign the same relative values to military advantage and to injury to noncombatants... It is suggested that the determination of relative values must be that of the 'reasonable military commander.'"
Nor is this all. When considering the risk to noncombatants, decision-makers and those judging them must consider the risks to Israeli civilians as well. When the EU speaks of the absolute requirement not to "endanger civilians," contrary to the Geneva Convention, its seems to be ignoring the human rights of the Israeli civilians who have been indiscriminately and illegally targeted by Hamas.
Anyone who accuses Israel of disproportionate action must answer some simple questions. What action would they consider proportionate? What would be the consequences of this action? Why are the lives and rights of Israelis seemingly considered to be inconsequential? Perhaps most importantly, there is the question of where overall moral responsibility lies.
International law expert Yoram Dinstein wrote, "Should civilian casualties ensue from an attempt to shield combatants [with civilians]... the ultimate responsibility lies with the belligerent placing innocent civilians at risk."
Israel is under illegal and unprovoked terrorist attack. The attempt to spread the blame, not to mention portraying Israel as the aggressor, serves to reward and encourage further Hamas aggression. To comply with international law and promote peace, Western nations must apply to Israel the standards they apply to their own military actions and place full responsibility for the casualties of both sides on the aggressor that seeks to maximize those casualties, Hamas.
