~ Alan Dupont. Originally published in the Australian
Should Hamas be free to ignore the rules of international humanitarian law while Israelis are constrained in defending themselves by the laws that are meant to protect them?
The outpouring of pro-Hamas and anti-Jewish sentiment in the Middle East is hardly a surprise given the longstanding animosity between Arab nations and Israel over the intertwined issues of a Palestinian state and Israel’s right to exist.
More troubling is an emerging view in the democratic world that Israel should be judged by higher standards of behaviour than Hamas, a view Foreign Minister Penny Wong appears to share.
Let’s remind ourselves that Hamas is a proscribed terrorist organisation in this country and many others. Hamas has deliberately targeted Israeli civilians in one of this century’s most savage and indiscriminate attacks. And its central purpose is to destroy Israel, the only genuine democracy in the Middle East.
Wong concedes Hamas has “demonstrated that it has no respect for international law”. But, she says, “Australia is a democracy and so, too, is Israel and the standards that we seek and accept are higher.” Furthermore, “International humanitarian law is very clear about the principles that need to be applied by Israel – they are distinction (between combatants and non-combatants) … and proportionality.”
This smacks of double standards. Should Hamas be free to ignore the rules of international humanitarian law while Israelis are constrained in defending themselves by the laws that are meant to protect them? What legitimacy does international law have if only one side abides by it in a world inhabited by terrorists, militias and mercenaries acting as proxies for malevolent nation-states?
International law works only if it is applied universally. Hamas should be held to the same standards as Israel and not be falsely lionised as champions of the Palestinians. The terrorist group has shown as much disregard for the lives of Palestinians as it does for Israelis. Hamas knew full well the incursion into Israel would bring more suffering and misery to the people of Gaza. It has tried to prevent the besieged inhabitants of Gaza City from moving to safer areas. And there is mounting evidence that Hamas’s main military command and control complex has been deliberately located beneath the al-Shifa hospital and adjacent medical enclave.
When Hamas seized power in 2007, it ruthlessly executed or expelled rival Fatah officials who had run Gaza after the Israeli handover to the internationally recognised Palestinian Authority in 2005. The Palestinian Centre for Human Rights estimates that 161 Palestinians were killed and 700 wounded in the subsequent fighting.
Wong’s point about proportionality is fine in principle but contentious in practice. It needs to be deconstructed because it is central to the argument that Israel’s actions in Gaza are disproportionate to the Hamas attack and that Israel can no longer claim to be acting in self-defence.
How does Wong assess proportionality? Judged by the criticisms levelled at Israel it seems civilian casualties are the main criterion. The problem is that casualty figures are easily manipulated and difficult to verify. Around 1200 Israeli civilians have been killed by Hamas in the current conflict. The Hamas-run Gaza Health Ministry estimates that more than 11,000 Palestinians have been killed by Israeli strikes. This figure includes Hamas fighters, a crucial distinction. These are not like-for-like figures, underlining the imprecision of casualty counts.
As The Wall Street Journal reported on Wednesday, contemporary estimates of casualties are often wrong and cannot be easily compared. Each conflict is different. It often takes years and even decades before forensic investigations yield more accurate figures that can be verified.
Even allowing for casualty inflation there is no doubt that many thousands of innocent Palestinians have been killed. Unfortunately, wars kill innocents, which is why every effort must be made to prevent them. To put Palestinian deaths into perspective, 432,093 civilians are thought to have died violent deaths in wars throughout the first 20 years of this century according to Brown University’s Watson Institute.
But formulaic calculations take no account of the reality that Hamas is invested in increasing Palestinian civilian casualties to paint Israel as the aggressor and to create international sympathy for its cause. That’s why it locates military positions and command centres in hospitals, mosques and schools and prevents civilians from leaving combat zones.
Hostage taking, information warfare and the use of mosques and civil infrastructure to shield military command posts are central to Hamas’s strategy. This aims to counter Israel’s superior military strengths by winning the crucial battle for hearts and minds – not only those of the Arab street but also the citizens of Israel’s supporter states.
It seems to have escaped the attention of Israel’s critics that this is political warfare straight from the playbook of al-Qa’ida in Iraq. This terrorist group was led by Abu Musab al-Zarqawi, a brutal man widely acknowledged as the father of Islamic State, who was killed in a coalition airstrike in 2006.
When coalition forces confronted al-Qa’ida at the battle of Fallujah in 2004, they discovered that al-Qa’ida was using a hospital as a military headquarters. Fearing that Zarqawi “would publicise an extended attack on the hospital to sever political support for the operation”, the coalition seized the hospital to remove the critical command centre, according to an account of the battle by the Modern War Institute, foreshadowing the current controversy over the al-Shifa hospital.
Wong needs to apprise herself of Hamas’s political strategy. Asserting that international humanitarian law requires the protection of hospitals implies that Israel bears sole responsibility for the suffering of its patients. She should also clarify if hostage taking, a war crime, is included in her definition of proportionality.
Then there is the unanswered question of who is to judge proportionality. Should we accept the words of Hamas supporters and perennial critics of Israel whose commitment to human rights and international law falls glaringly short of Israel’s standards?
How about Iran, which demanded the Israeli army be branded a terrorist organisation at a hastily convened emergency meeting of the Arab League and the Organisation of Islamic Co-operation last week? This is a country with one of the worst human rights records in the world and, like Hamas, seeks the total destruction of Israel.
In 2021, Human Rights Watch said about Iran: “Iranian authorities continued to repress their own people. The country’s security and intelligence apparatus, in partnership with Iran’s judiciary, harshly cracked down on dissent, including through excessive and lethal force against protesters and reported abuse and torture in detention. Supreme Leader Ayatollah Khamenei continues to green-light these rampant abuses.”
Should we listen to Brazil’s President Luiz Inacio Lula da Silva, a purveyor of the contentious “moral equivalence” line, who accuses Israel of dropping bombs on innocent Palestinians “on the pretext that a terrorist is there”?
Perhaps we could take a lead from supposedly impartial UN officials such as Special Rapporteur for the Palestinian territories Francesca Albanese. She says Israel is committing war crimes and has no right to self-defence under international law because it was not attacked by another state.
Such sophistry comprehensively fails the pub test and any reasonable sense of balance or proportionality. In this imperfect world, few countries or people can lay claim to being the objective arbiters of proportionality.
Ignorance – feigned and genuine – of the military strategy employed by Hamas is another reason for the failure to understand how difficult it is for Israel to destroy Hamas without killing innocents.
Knowing that it is militarily inferior to Israel, Hamas seeks to level the playing field by drawing the Israel Defence Forces into the densely populated urban environment of Gaza City where Israel can’t use its full military power without inflicting casualties on the civilian population.
It’s easy for armchair critics to rail about proportionality and high standards. But urban warfare is dirty, bloody and complex. It favours the defending side and typically results in three to six times the number of casualties in other, less demanding operational environments.
High civilian casualties are unavoidable when one side fights among the people as Hamas does. Democracies are far more sensitive to casualties than terrorists and autocracies. They strive to minimise collateral damage.
If Israel took the gloves off, the IDF could obliterate the al-Shifa hospital and destroy the tunnel complex beneath it, bringing a speedy end to the conflict. But the casualty count would be far worse. That it hasn’t done so reflects well on Israel. Russia has no qualms about directly targeting civilians and civilian infrastructure in Ukraine.
Throughout history it has been demonstrated repeatedly that if an attacking force can isolate a city, the battle will be shorter, casualties fewer and victory more likely. There are other lessons for Gaza that can be drawn from an analysis of the battle for Fallujah.
According to the Modern War Institute, the coalition’s information campaign involved “extensive actions to encourage the city’s civilians to leave before the battle. The campaign proved effective with only 30,000 remaining at the battle’s start. This greatly reduced the incidence of civilians being wounded or killed and the likelihood that political pressure would once again prematurely end the battle due to a concern over civilian casualties.”
That’s why Israel is emptying Gaza City and Hamas has tried to prevent the exodus.
In setting a high benchmark for Israel that Hamas clearly fails, Wong says: “International humanitarian law is very clear about the principles that need to be followed by Israel. They are distinction, they are precaution, and they are proportionality.”
Wong should understand that Israel fights like Australia where distinction, precaution and proportionality are an intrinsic part of military decision-making, unlike most of the countries that have criticised the conduct of Israel’s operations in Gaza.
Former Australian major general Jim Molan, who sadly died this year, was intimately involved in planning military operations for the 300,000 coalition troops in Iraq including the battle for Fallujah. In his seminal account of this battle (Running the War in Iraq), Molan describes in detail how Wong’s principles are applied by democracies such as Israel, Australia and the US.
“A critical part of the targeting process was the collateral damage estimate, or CDE. It brought up the fundamental legal and moral considerations of proportionality, humanity, discrimination and necessity.
“The term ‘collateral damage’ can prompt cynicism from the uninformed,” Molan writes, “who see it as military techno-speak sanitising the impact of war on ordinary people. Nothing could be further from the truth. We did not use the term to dehumanise what we were doing. We did everything we could to avoid killing civilians. If the CDE was too high, we had the option of not striking the target.”
Where possible, Israel uses precision-guided munitions to strike selectively at targets and minimise civilian casualties.
Molan describes how bombs such as the Joint Direct Attack Munition can be dropped through cloud, “pick up” a whole house and dump it in the street, sometimes without damaging the houses on either side, even if they have a common wall. Their “unsurpassed accuracy and effectiveness in cities” best satisfies “the requirements of international law”.
“As long as we apply considerations of proportionality, humanity, discrimination and necessity both legally and morally, the fault for the death of innocents lies with those who chose to wage war from the bosoms of their families.” Molan did not accept “that there is any moral equivalence between what I did and what our enemies did”.
The intense debate about proportionality and standards of behaviour in war transcends the Israel-Hamas conflict and goes to the fundamental issue of how democracies can defend themselves against less scrupulous adversaries who care little for civilian casualties, including their own.
Hypocrisy and double standards abound. Brazil’s President accuses Israel of war crimes but has nothing to say about Russia’s attacks on Ukrainian civilians. The startling assertion of Francesca Albanese that Israel is not entitled to defend itself under international law because Hamas is not a state is egregious and unprincipled.
Instead of criticising Israel for not meeting an undefined, notional higher standard of war fighting, the aim should be to bring all countries up to the same standard – including terrorists, who must be held accountable for their actions.
Unless we level the legal and ethical playing field for all protagonists, the rules of war will continue to be ignored and manipulated by autocrats and terrorists to the detriment of democracies such as Israel and Australia.