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Israel and Gaza: With Rights Come Responsibilities

Israel has the right to defend itself, says Paul Heinbecker. But it must do more to distinguish between civilians and legitimate military targets.

By: /
30 July, 2014
By: Paul Heinbecker
CIGI Distinguished Fellow

“Canada believes that Israel has every right to defend itself, by itself, from such belligerent acts of terrorism” (Foreign Minister John Baird, July 8).

True, and accepted by most of the international community, with a caveat: with rights come responsibilities.

A central responsibility, in fact a legal obligation of any belligerent in conflict, is to distinguish between civilians and legitimate military targets. Indiscriminate military action is prohibited, as is the deliberate targeting of civilians (Hamas’s indiscriminate rocketing of Israel communities is prima facie a war crime). International law acknowledges that civilian casualties might occur when military targets are attacked, but it requires warring parties to minimize injury and death among civilians. Complexity gives no dispensation from this principle, nor does the unlawful behaviour of the other side.

Further, according to the International Committee of the Red Cross, the statutory guardian of international humanitarian law, “if an attack is expected to cause ‘collateral civilian damages’ that are excessive in relation to the concrete and direct military advantage anticipated, it must be cancelled or suspended” (ICRC–“International law on the conduct of hostilities: overview”).

The Israeli government thus has the right of self-defence under international law but its exercise of that right must itself comport with international law. The Israeli forces, with their vastly superior technology and firepower have a special responsibility when selecting targets in Gaza.

Gaza is a densely populated narrow strip of land of about 10 by 50 kilometers. It is penned in by closed Israeli and Egyptian borders and an Israeli blockade at sea. Unlike refugees fleeing e.g., Syria, Gazans have nowhere to go. Even before the current round of war, Gaza was described by British Prime Minister Cameron, as an open-air “prison camp”. It has no airport, the Israelis impose extremely tight restrictions on travel abroad and they have sharply curtailed imports and exports. Gaza is also dirt poor, with 40 per cent of the population unemployed and 80 per cent receiving some form of food aid. As observed by Yuval Diskin former head of Israel’s internal security service Shin Bet “When people lose hope for an improvement of their situation, they radicalize… The Gaza Strip is the best example of that.”

By July 27, 999 Palestinians had been killed. At least 760 were civilians, just over 75 per cent of the total death toll (UN Office for the Coordination of Humanitarian Affairs). Almost as many children had been killed as combatants. Injuries totalled more than 6,233. Twenty-two hospitals, clinics and medical centres have been damaged by shelling. Forty-six Israelis have been killed, including two civilians. According to the Israeli forces’ statistics, more than 11,000 unguided rockets have been fired into Israel since Israel withdrew from the Gaza strip in 2005.

The Israeli government states its military forces are acquitting their responsibilities fully, even admirably. Independent human rights groups disagree. Human Rights Watch is accusing Israel of numerous “unlawful acts” and “violations of the laws of war.” Amnesty International has alleged Israeli forces “flagrantly disregard civilian life and property”. B’Tselem and nine other Israeli Human Rights organizations wrote to the Israeli Attorney General to say Israeli military strikes “raise serious concern of severe violations of international humanitarian law.”

In understanding this tragic conflict, the larger context matters. Israel has occupied the Palestinian lands of the West Bank since 1967 (longer than the Soviet Union occupied Eastern Europe); it has formally annexed Jerusalem; and it has transferred 550,000 Israeli settlers into settlements in the West Bank and eastern Jerusalem, all of which violates international law and vitiates peace negotiations. Israel has continued building settlements to the point of derailing the most recent U.S.-sponsored round of negotiations, according to U.S. Secretary of State John Kerry himself. Mr. Kerry called the Israeli announcement in April this year of its decision to build 700 more settlement units as “the poof moment,” the precipitating event that ended the negotiations.

Philip Gordon, the White House Coordinator for the Middle East, recently asked “How will Israel have peace if it’s unwilling to delineate a border, end the occupation, and allow for Palestinian sovereignty, security and dignity?”

If the two warring sides and their supporters abroad do not take this context into account, they can content themselves with conscience-easing narratives and avoid confronting uncomfortable realities. Some, including the Canadian government, see the issue simply as a democracy confronting a terrorist group and doing what has to be done. It has said little about restraint, international law or Palestinian rights. Others, notably Mr. Diskin, and former U.S. National Security Advisor Zbigniew Brzezinski, think that the Israeli government is making a very serious mistake in conducting a war of choice. In doing so, the Israeli government is isolating Israel in global opinion, even in U.S. opinion.

Periodically “cutting the grass” in Gaza – the grotesque euphemistic term for periodic bloody invasions – produces more extremists. Further, each round of this conflict has seen Hamas (and Hezbollah) go up the technology curve to the point that all of Israel is now within range of rocket fire. Rather than launching a campaign against the Palestinian national unity government when Hamas agreed to back it, the Israeli government could and should have tried to work with it. At least they should have tested whether the new Palestinian national unity government could have been the negotiating partner whose absence Tel Aviv previously claimed to lament.

Ottawa, where all foreign policy decisions are made with an eye to their possible impact on 2015 federal election, but which are nevertheless proclaimed to be principled, has turned a blind eye to the rapidly increasing casualties. Ottawa decision-makers are apparently content to see the issue as being essentially black and white. According to the Prime Minister, “Canada is unequivocally behind Israel.” According to the Foreign Minister, “responsibility rests solely with Hamas and its allies” (a defence that got short shrift when President Vladimir Putin used it to try to shift blame for the downing of MH17). The Liberals and some all-purpose pundits have aligned themselves with this view. The assumption seems to be simply that in Israeli-Palestinian confrontations Israel is automatically right and the Palestinians are automatically wrong, international law notwithstanding.

When UN High Commissioner for Human Rights Navi Pillay observed that “Israel, Hamas, and Palestinian armed groups in Gaza have been down this road before, and it has led only to death, destruction, distrust and a painful prolongation of the conflict” and she “appealed to all sides to abide by their obligations under international human rights law and international humanitarian law,” Mr. Baird accused her of creating moral equivalence between Israel and Hamas. The irony is that Ottawa’s moral absolutism does not take anyone closer to an end to the conflict or Canada any closer to an effective foreign policy. Instead of repeating its apparently unconditional support for Israel, Ottawa should be promoting compliance with international law, working with others to interrupt the mad cycle of violence in Gaza and reminding all concerned of their legal and moral obligation to protect civilians. Innocent people are dying in droves.

A version of this post was originally published by the Globe and Mail.

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