Sunday, January 4, 2009

Law of war and Gaza

Under the 1907 Hague Conventions, a state can defend itself or right a wrong if the response is proportional, immediate, necessary, and avoids civilians.

Under Article 51 of the Draft Articles of the the Responsibility of States for Internationally Wrongful Acts, countermeasures must be commensurate with the injury suffered, taking into account the gravity of the internationally wrongful act and the rights in question.

Israeli forces outdo Hamas's and necessarily do greater damage. Hamas’s war aim is disproportionate to Israel’s: Israel’s is to stop rockets, Hamas’s to destroy Israel.

No eye for an eye war ever was waged. History is clear on that. Proportionality doesn’t require it.

Another doctrine of proportionality is found in the Law of Armed Conflict("LOAC")

LOAC is nations’ desire to lessen harm consistent with effective war. It is part of public international law. It regulates war and protects those outside war. It outlaws force beyond military objective. It prohibits force over that needed for military objective. If a surgical strike is apt, carpet bombing isn't.

Hamas rockets come. So Israeli force is underachieving. It, unlike Hamas, minimizes civilian harm. Hamas buffers civilians. Israel sends warning leaflets. Israeli commanders warn Hamas leaders their homes are targets, though they know that. Hamas rockets go willy nilly.

The law of Distinction, according to LOAC, discriminates between proper and improper targets. Its central idea is to highlight proper targets. A bad strike is without distinction. Distinction demands feasible distinction. Whoever deploys force amid men, women and children breaches Distinction.

Hamas breaches Distinction in two ways at once. It rockets Israeli civilian areas from civilian areas. Both are illegal. But Israel can and must strike military targets in civilian areas. Civilians can’t be an object; military targets can, even with civilian harm. Blame Hamas for injury and death to both Israelis and Palestinians.

LOAC forbids terrorism—tactics aimed at terrorizing societies.

Concern for the innocent is a given. But Israel meets the law of war. Hamas commits war crimes.

Itzik Basman

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