The ongoing conflict between Israel and Hamas, the de facto governing authority in Gaza, has given rise to significant humanitarian concerns. Nearly two million Palestinians are in a state of siege, more than 13,000 civilians and aid workers have been killed since 7 October, and protected facilities like the al-Shifa Hospital have been attacked.
Every conflict has rules, though they don’t make war acceptable. But these rules, called international humanitarian law (IHL), protect innocent civilians and limit the means and methods of warfare. The key principles of IHL include distinction (between military targets and civilian objects), proportionality (anticipated military advantage of an attack should not outweigh the expected harm to civilians and civilian property), precautions (to prevent, as far as possible, harm to civilians), military necessity (necessary to accomplish a legitimate military objective), and effective warnings and ensuring that attacks are not indiscriminate.
While IHL is clear in its principles, the challenges in implementing it in the Gaza crisis are complex. There is no denying the fact that Israel has taken precautions in the campaign like broadcasting warnings and issuing pamphlets. Yet, the casualties have been high. That is because the Gaza Strip is one of the world’s most densely populated regions, and the inevitable proximity of military targets to civilians makes it difficult to ensure that attacks are proportionate and do not harm non-combatants. Israeli airstrikes have killed thousands and caused widespread destruction of infrastructure in Gaza. Blockades and limited access to certain regions have aggravated the situation by hindering the delivery of humanitarian and medical aid.
IHL has been blatantly violated in this war, beginning with the 7 October attack by Hamas and Israel’s reprisals on women, children, and the elderly and indiscriminate use of force. These violations can be difficult to investigate and prosecute. Identifying the accountable entity is a significant challenge, too, and the lack of international consensus on the situation complicates efforts to enforce humanitarian law.
So, whether it was Hamas or the Israeli military that fired the rocket that caused the al-Ahli Arab Hospital blast on 17 October is difficult to conclude in the fog of war. Militant and terror groups are known to conduct false flag operations, which involve carrying out an attack and making it appear as if it was perpetrated by the other entity. It is part of a broader strategy to conceal the group’s true objectives and intentions while portraying itself as a victim for propaganda purposes, gaining the sympathy and support of the international community.
Such incidents create a diplomatic crisis between states, taking away the lens from the activities of the group carrying out the operation. Last week, the Israel Defense Forces (IDF) carried out attacks on the al-Shifa Hospital and reported the existence of militarised tunnel networks. Even in this operation, many non-combatants became casualties.
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Law isn’t black and white
Under the Geneva Conventions, hospitals and medical facilities are granted protected status to ensure the care and well-being of civilians, wounded, and the sick during armed conflicts. However, these protections are not absolute, and certain conditions may result in the loss of their protected status. When a medical facility is used for purposes that are harmful to the enemy, weapons or soldiers are intentionally placed within or near it with the aim of shielding those military objects, or in cases where it provides support to combatants, then it loses the protected status.
What does the law say about using civilians as shields? Before looking into it, one must know how the civilians came to be in militarily exposed positions and the choices they made. In case they volunteered to stay back or were coerced into staying to, say, be used as human shields, then the responsibility lies with the defender. On the contrary, if civilians were not permitted to evacuate an area and were attacked in the natural place of residence, the onus of protecting non-combatants lies with the attacker.
Drawing from these rules, the deaths in Gaza are clearly attributable both to Israel and Hamas for forcing civilians to stay back to be used as human shields despite the warnings issued by the IDF for evacuation.
The laws of armed conflict are silent as to how far a combatant can protect a civilian. These decisions are left to the individual soldier who is guided by their military traditions and moral upbringing. The theory of double effect is a concept that helps in evaluating the ethical implications of actions that may have both intended and unintended consequences in the context of the just war theory and IHL.
The moral reality of war has two parts, the first being the reasons that it is fought for. The world stood in favour of Israel when Prime Minister Benjamin Netanyahu decided to go to war, as restraint was not an option. The second is the means and methods that are deployed during the war. There is much outrage against the Israelis, with many par-for-the-course attacks being called war crimes.
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Not the first time
This is not the first time in the history of modern warfare that civilians have been targeted. And it is not always the so-called ‘evil’ powers that defy the laws of war. During World War 2, American and British forces terror bombed Germany, killing nearly 3,00,000 civilians and wounding 8,00,000. The orders were clear: Targets were not to be dockyards and factories but the heart of the city and densely populated areas. The justification was that it was a reprisal and the aim was to render a third of Germans homeless to create intolerable living conditions.
Even when the war was almost won, Britain bombed the city of Dresden where nearly 1,35,000 civilians were killed. These inhuman bombings by Britain provided a precedent for US President Harry S Truman, who ordered the firebombing of Tokyo. While it is to the credit of the Japanese that they targeted only army and naval facilities at Pearl Harbor, American reprisal comprised the use of nuclear weapons on Hiroshima and Nagasaki.
More than half a million Germans were killed by the Allied forces, and there was nothing the civilians had done that forfeited them the right to protection. Although the number of people killed by the Axis powers and Germans during the Holocaust was much higher, it wasn’t something that was expected of those at war with Nazism.
Two decades later, it was acceptable for the US to bomb and strafe Vietnamese villages that were known to be hostile or where American troops were fired upon. It was in accordance with the American “rules of engagement” in Vietnam. There was also a free fire zone that permitted firing at will — anyone who stayed back did so by consent. In other words, Americans blurred not just the distinction between combatants and non-combatants but also created a new distinction—hostile or friendly and loyal or disloyal civilians.
Gaza is owed a negotiation
It is important to realise that the moral reality of war is not determined by actual activities and measures taken to prevent civilian deaths but by opinions. There can never be a consensus on who started the war and who has the onus to end it. Peace needs to be given a chance. Just as the attacks in Dresden and Japan went beyond the tipping point, the continued reprisals against civilians in Gaza are a repeat of the crime of aggression.
War is hell not just for those who fight it but also for those who live through it. There must be better ways to end a conflict than fighting to either finish the opponent or demand an unconditional surrender. No society would accept the deprivation of sovereignty and freedom, for then the war becomes indefinite.
In the current crisis, the argument appears to be that more and more rules can be violated for the sake of a more just cause. In other words, perceived justice or injustice allows the belligerent to justify acts that are considered inadmissible violence.
True victory is not in the defeat of an enemy, but that which paves the way for peace to prevail. The people of Gaza are owed an experiment in negotiations after having lived through hell. The hostage swap will hopefully resolve the current crisis and pave the way for acceptance of the two-state solution by Israel and whoever inherits the mantle from Hamas as the governing authority in Gaza.
Col DPK Pillay is an Army veteran and Research Fellow at MP-IDSA. He has served in the National Security Council Secretariat, the Ministry of Defence Secretariat, and the International Committee for Red Cross as Military Advisor for the After-Action Review for the wars in Iraq, Syria, and Yemen. Views are personal.
(Edited by Humra Laeeq)