Scorched earth and international law

Judging from recent events, it seems that the war of attrition launched against the nascent State of Israel in 1948 has not ended, only morphed.

Palestinians prepare an incendiary device attached to a kite before trying to fly it over the border fence with Israel, on the eastern outskirts of Jabalia, on May 4, 2018.  (photo credit: MOHAMMED ABED / AFP)
Palestinians prepare an incendiary device attached to a kite before trying to fly it over the border fence with Israel, on the eastern outskirts of Jabalia, on May 4, 2018.
(photo credit: MOHAMMED ABED / AFP)
The last few months have given rise to the return of a historical military strategy known as “scorched earth,” in which approximately 100 fires have ravaged and devastated hundreds of acres of the State of Israel, in particular in agricultural communities along the Gaza border. An hour’s drive from Tel Aviv, devastating fires have been set ablaze by balloons and kites flown over the border that have destroyed thousands of acres of fields, forests and wildlife.
Judging from recent events, it seems that the war of attrition launched against the nascent State of Israel in 1948 has not ended, only morphed. The commitment to its destruction has not vanished, only mutated. Enacting the age-old adage “Plus ca change, plus c’est la même chose,” it seems that those that did not accept the legitimacy of a Jewish homeland in the ancestral home of the Jewish people still do not, and are committed to its destruction utilizing any and all means to achieve their goal.
Ironically, the hope for finding a solution and of realizing the centuries-old dream of peace, persuaded many to adopt a paradigm that would enable a “way out.” According to this well-meaning, responsibility-taking paradigm, it was the results of the Six Day War (launched in a surprise, well-planned campaign by five neighboring Arab countries in 1967) that rendered Israel responsible for the terms and conditions of a much-coveted peace. If only Israel would withdraw from areas that it “conquered” in the aftermath of that war, there would be peace. If only there was a “two-state solution,” Palestinians would no longer carry out murderous attacks against Jews. Living under “occupation” resulted in “understandable” violent reactions according to this narrative, and “settlers” were vilified as the barrier to peace, the root of all evil. Herein lies the paradox. The adoption of this narrative actually fueled Israel’s hope, in keeping with millennia of Jewish tradition, that there is a chance to realize the dream of peace with its neighbors.
With all the incredible progress our world has made in the last century, including Israel’s contributions, despite the advances in health research, desalination of water, production of food, global online resources in education, that harbor the potential of improving the human condition, it seems that the machinery of hate and war has remained the same. Rearing its ugly head, recreating itself and holding the world back from genuine progress, it is a sad reminder of human inability to comprehend the repetition of history and recognize real threats as they arise.
Despite seeming progress, tactics of destruction and strategies of devastation reappear with ever so slight modifications or variations. Close and long-range missiles threaten and are launched into Israel, forcing it to develop self-defense systems such as Iron Dome to protect its civilian population; underground terror tunnels are dug into the country below external borders threatening individuals and communities, forcing Israel to develop technologies that address tunnel warfare; and now, in a cynical abuse of kids’ toys and joy, terror balloons and kites are utilized in an old-new version of scorched-earth practice, destroying decades of hard work, amazing achievement and dreams of a better future.
ONCE AGAIN, thousands of Israeli civilians, men, women and children, are living under daily threat and trauma.
Doing the only thing that can be done against the terrorism that seeks to instill fear and paralyze them, they work, shop, write exams, drop kids off at camp or school, doing their utmost to lead a semblance of normal life. In these heroic daily acts that should be understood and acknowledged as such, they are fighting terrorists by denying them the victory of instilling anxiety and dread. Hundreds of volunteers show their support by doing the only thing they can, showing up in solidarity and working with brave firefighters day and night, to minimize the damage and save what can be saved.
In defiant breach of international law, fires are ravaging Israel daily. It is noteworthy that this strategy of destroying the food and water supply of the civilian population in an area of conflict is banned under Article 54 of Protocol I of the 1977 Geneva Conventions. The relevant passage states: “It is prohibited to attack, destroy, remove, or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies, and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive.”
The past few months have brought many civilians to the very area that is burning, along the Gaza border, for a gathering that highlights the unacceptable breach of international law and offers much the same clarity as to the enemy that Israel faces. Week after week, we gather to demand the return of the remains of Hadar Goldin, abducted and murdered by Hamas, the very same terrorist organization responsible for the implementation of the scorched-earth strategy. In a cynical abuse of the humanitarian ceasefire, under the auspices of the UN and brokered by the US in the “last blast from the warfare past” in the form of underground tunnels. In a cynical abuse of the understanding of the sanctity of life, and in violation of international law, they have been holding Goldin’s remains for four years. Week after week, en route to the gathering, the heartbreaking changeover from green to black can be seen, the demoralizing smoke in the air can be smelled. Week after week, we continue to go, recognizing the importance of standing together in solidarity, and of understanding and sensing reality.
For those who recognize the significance of international law in a world rife with conflict, that believe in the power of humanitarian law in a world plagued by human suffering, the smoke should not cloud our vision or dull our understanding. The message is loud and clear if you are willing to look and listen. It must serve as a call to action. Transcending politics, the recent rebirth and implementation of scorched-earth strategy clarifies that the struggle against the State of Israel has absolutely nothing to do with post- 1967 borders. It has absolutely nothing to do with “settlements” or “settlers” who can be removed to create a Palestinian state that will coexist with the Jewish state. Dusting off the scorchedearth practice sets ablaze a simple and clear message, which appeared on a terror balloon launched from Gaza stating, bluntly and simply: “Leave our land or there will be nothing green.” If international law is to have any meaning at all, it is imperative that individuals, societies and countries that cherish international law and value humanitarian law hold those in outright breach of it accountable.
Adv. Michal Cotler-Wunsh is a PhD candidate in law at the Hebrew University of Jerusalem, researching the topic of free speech as part of the “Human Rights under Pressure – Ethics, Law and Politics” doctoral program and a research fellow at the International Institute for Counter-Terrorism at IDC Herzliya.