There are all sorts of things that go unmentioned in the conflict between Israel and Hamas. I’ll list a few.
Hamas is composed primarily of irregulars and as such they are not protected by the laws of war.
Hamas’s tunnels are themselves a war crime. Attacking them is not a war crime or, more precisely, civilian deaths that result from such attacks are Hamas’s war crimes.
The same is true of placing military headquarters, ammunition dumps, etc. under or within hospitals, schools, or mosques—those are war crimes. Civilian deaths that result from attacking them are Hamas’s war crimes.
The laws of war were fashioned for Western societies. Western societies have made distinctions between combatants and non-combatants that simply don’t exist in any other culture and those distinctions go back thousands of years. Arab societies do not make such distinctions. Neither do Jewish societies except to the extent that they’ve been Westernized.
I’ve posted about this before but I have long thought that Israel has erred in not granting the West Bank + Gaza statehood. Then, when the inevitable attack against Israel occurs, they should declare war against that Palestinian state and seize some of its territory as a buffer. Lather, rinse, repeat. Eventually there would be no Palestinian state. I don’t support or approve of the Israelis’ (or the Palestinians’) goals. I merely point this out in passing.
It’s not actually the case that Hamas, for example, putting its fighters and military infrastructure in/below a hospital gives Israel carte blanche to attack that infrastructure without having to consider the consequences to civilians. Israel is still obligated to minimize civilian casualties and use proportional force to meet its legitimate military objectives. But those judgments are inherently situational and subjective. There is no hard and fast rule about the number of acceptable civilian deaths compared to achieving any particular military objective.
That may be true but it makes it impossible to prosecute. In theory the military value of an attack must be proportional to risk to civilians. In practice that becomes impossible to prove with Hamas’s practice of undermining civilian structure and using those underground facilities to make war on Israel. At that point it’s just claim vs. counter-claim.
I think you’re misstating the rule of proportionality. The Israelis are NOT required to absolutely minimize damage to civilians. They are required to ensure that the risk to the civilian population is proportional to the military value of the attack.
Another factor I failed to mention in the post: that the Egyptians bar Palestinian refugees from fleeing to Egypt is a violation of its obligations under multiple accords governing refugees to which they are signatory. That’s not Israel’s fault.
I would argue that vitiates the argument that there is nowhere in Gaza to which Gazans may flee. If war crimes arise from that, it’s Egypt’s fault. You tell people to leave. That’s your responsibility. If they don’t leave that’s not your responsibility.
Basically, what I’m saying is that there is considerable wiggle room between “carte blanche” and taking appropriate steps to reduce civilian casualties.
“That may be true but it makes it impossible to prosecute. ”
Definitely. Very little of this has been meaningfully adjudicated, which is why claims and counterclaims are based more on personal subjectivity and not objective criteria – because there is no hard line between legal military action and a war crime.
I think it would be useful if people went through the mental process and energy to come up with an objective set of criteria that they like that could be used to evaluate any action. But that is extremely difficult, especially for non-experts – there’s no simple pattern or formula to use.
That’s why I primarily look at intent. To what degree is a combatant attempting to adhere to the spirit of LOAC, and has the principles and processes in place to enable that? I think comparing Israel and Hamas there is no comparison, but that’s a relative judgment, not an absolute one.
There is no comparison between Israel and Hamas. Hamas is a terrorist and Israel is a sovereign nation that generally abides by the LOAC. The issue, as described above is that there is no bright line. Is it OK to kill civilians if there is a 50% chance you kill some Hamas? How about 10%? How many and what ratio? How valuable must the military target be? If Israel is pursuing killing off Hamas I think they get a lot more latitude in these numbers. If they are just doing their usual ie kill enough Hamas to claim revenge, then I think those ratios should be smaller. Remember, Hamas is evil and let’s hope they all get killed.
Steve