Understanding ‘militant’ as a cover-up for civilian deaths, and other ways international law helps clarify the Israeli attack on Gaza

Israel/Palestine
on 34 Comments
Palestinians collect their belongings from damaged houses in Gaza City. (Photo: Mahmud Hams / AFP / Getty Images)

Palestinians collect their belongings from damaged houses in Gaza City. (Photo: Mahmud Hams / AFP / Getty Images)

At least 35 Palestinians have been killed and over 300 wounded in Israeli airstrikes on the Gaza Strip in the first two nights of “Operation Protective Edge.”  As Israel calls up thousands of army reservists for a potential ground assault, the deaths will likely increase even as their human cost is buried by misleading news and government reports.

News about Gaza can be confusing because it is hard to ascertain clear facts about a faraway place where reporters often are limited from entering or moving freely.  It is further complicated by the failure of media and various governments to apply international law correctly, and to instead accept definitions from the players themselves about the legitimacy of their military goals and actions.  Understanding what is happening in Gaza, and who is dying, is important because it happens with American aid, weapons, and complicity.  Understanding principles of international law is critical if we want a world that abides by rule of law.

Principle #1:  Israel cannot “defend itself” by any means.

There are laws of war, and they apply to all states.  Known collectively as international humanitarian law (IHL), they are made of a number of international conventions, including the universally-accepted Geneva Conventions and their Additional Protocols, and widely-accepted principles known as “customary international law.” The main purpose of IHL is to minimize the effects of war.

IHL applies to Israel and to Hamas’s military wing or independent Palestinian militias.  I’m not focusing on the Gazan militias because, despite their sincere intentions to commit war crimes, the damage they have wrought pales in comparison to Israel’s violations.  In the past 11 years, rocket fire from Gaza has claimed 17 Israeli lives; in the past two days, Israeli attacks in Gaza have killed 35 Palestinians.

Principle #2:  There is no legal meaning to the term “militant.” 

“Militant” is used as often to describe fighters as it is to describe vegans and feminists; it has no meaning in IHL.  There are only two types of people in IHL:  civilians and combatants.  A person’s status isn’t static:  a civilian who takes up arms becomes a combatant, much like an off-duty army reservist is a civilian.  For example, a woman who served in the Israeli army (as all Israelis are required to do) but is now escorting her children to school is a civilian.  Membership in a political party such as Hamas, or the holding of violent beliefs (as both extremist Palestinians and Israelis do) doesn’t make someone a combatant.

In the first 5 days of the brutal 22-day Operation Cast Lead in 2008-2009, 3 of the 4 Israelis who had been killed were classed as “civilians” in media sources; this was a proper classification even though it is likely that all three have served in the Israeli army.  In contrast, the reports on the Palestinian dead during the same period described only the women and children killed (9 women and 37 children) as civilians, letting readers assume that the rest of the dead were somehow engaged in combat.  While an accurate count of the dead is frequently hard to obtain in Gaza due to the continued assaults (the Palestine Red Crescent Society (www.palestinercs.org) , Palestine Center for Human Rights-Gaza (www.pchrgaza.org),  and B’Tselem (www.btselem.org) normally endeavor to keep count), from the targets and timing of many of the airstrikes it appears that most of the people killed were not combatants.  ).

Principle #3: Attacking civilians is prohibited.

Since “militant” lacks meaning, people are either civilians or combatants.  The most important principle of IHL is the prohibition on attacking civilians and civilian objects.  Only military objectives may be targeted.

A military objective is “limited to those objects which . . . make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage” according to Geneva Convention Additional Protocol I 52(2).  Absent evidence that a standard civilian objective has been converted to military use, it must be presumed to be a civilian objective.

During Operation Cast Lead, Israel targeted numerous civilian objectives including homes, mosques, a fitness center, a university, a pharmacy, government buildings, and civilian police stations; already during Operation Defensive Edge, homes and a poultry farm have been among the targets. Despite Israel’s claims to the contrary, everything Hamas-related isn’t a legitimate target; while Hamas has a military wing, it is also responsible for all civic functions in the Gaza Strip.  (To illustrate: Hamas may attack an Israeli military base but can’t legitimately attack the Ministry of Education.)

Principle #4:  Even if the target is a military objective, Israel must weigh the expected civilian damage.

Parties shouldn’t launch “an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated,” according to Additional Protocol I (52)(5)(B) (emphasis mine).

Israel maintains it doesn’t target civilians but incidentally kills them because of their proximity to military targets.  Gaza, with a population of 1.5 million in an area of 140 square miles, is one of the most densely populated places on the planet.  This poses special considerations for any military attack.

As I write this, the loss of civilian life continues. The silence from the U.S. government has been deafening; we must demand that our country engage in a way that upholds IHL, or we risk encouraging further killing of civilians and breakdown of legal order.

People interested in learning more about IHL should visit the International Committee of the Red Cross’s helpful IHL explanation on their website (www.icrc.org), and B’Tselem’s website for information on IHL and Israel (www.btselem.org).

About Abby Okrent

Abby Okrent is a lawyer and a former board member of Jewish Voice for Peace.

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34 Responses

  1. mondonut
    July 9, 2014, 11:04 am

    Further:

    Geneva Convention IV
    Article 28 of the 1949 Geneva Convention IV provides: “The presence of a protected person may not be used to render certain points or areas immune from military operations.”

    • eljay
      July 9, 2014, 11:46 am

      >> mondonuteee: Further:
      >> Geneva Convention IV
      >> Article 28 of the 1949 Geneva Convention IV provides: “The presence of a protected person may not be used to render certain points or areas immune from military operations.”

      In other words, Sderot and pizza parlours are acceptable targets. Fair enough.

      • mondonut
        July 9, 2014, 2:45 pm

        @elijay

        That’s ridiculous, the Geneva Conventions in no way permit the terror you would seek to condone. What it means is that genuine military targets are not off limit due to the presence of protected persons.

      • eljay
        July 9, 2014, 9:42 pm

        >> That’s ridiculous, the Geneva Conventions in no way permit the terror you would seek to condone.

        1. I don’t seek to condone any form of terrorism.
        2. The section you quoted refers to “certain points or areas”. As far as I can tell, Sderot and pizza parlours are “certain points or areas”, no less so that Gaza police stations, residential buildings, hospitals and chicken farms.

      • mondonut
        July 10, 2014, 1:54 am

        @eljay
        >>>>> As far as I can tell, Sderot and pizza parlours are “certain points or areas”

        Yes, because the Geneva Conventions provide absolutely no context to help understand why they do not permit the bombing pizza parlors. That must be totally confusing.

      • eljay
        July 10, 2014, 7:25 am

        >> mondonuteee: Yes, because the Geneva Conventions provide absolutely no context to help understand why they do not permit the bombing pizza parlors. That must be totally confusing.

        Yes, I’m totally confused. I don’t see any context in the G.C. section you quoted that justifies the bombing of residential buildings and hospitals, but not pizza parlours.

  2. Justpassingby
    July 9, 2014, 11:11 am

    Sorry but this article read to me: “Israel can bomb BUT..”.

  3. mondonut
    July 9, 2014, 11:28 am

    BTW. Rockets and mortars from Gaza do not become war crimes only when they kill or main. They are war crimes when they launch.

    Even when they are launched by Al Aqsa Martyrs Brigades, controlled by President Mahmoud Abbas.

    • Sumud
      July 10, 2014, 1:20 am

      That depends on the target – the IDF doesn’t disclose when rockets are directed towards military targets – which is not a war crime.

      Undeniably Israel is now perpetrating massive war crimes in Gaza – above and beyond their usual daily violations of GC4.

      • mondonut
        July 10, 2014, 2:03 am

        @Sumud. That depends on the target…

        No, it does not. Rockets do not have targeting systems, they are launched indiscriminately in the general vicinity of places. Each one is a war crime.

      • Sumud
        July 10, 2014, 3:56 am

        mondonut – please cite (with links) the relevant laws and treaties stating use of unguided projectiles automatically constitutes a war crime.

        Are you also arguing that Israel only ever uses guided projectiles?

      • mondonut
        July 10, 2014, 10:54 am

        @sumud

        A new low for Mondoweiss, defending the attack of population centers with unguided (indiscriminate) rockets.

        Article 51(4) of the 1977 Additional Protocol I provides: “Indiscriminate attacks are prohibited.”
        link to icrc.org

      • talknic
        July 10, 2014, 3:59 pm

        @ mondonut “Article 51(4) of the 1977 Additional Protocol I …”

        FAIL!
        Neither Israel or Palestine have ratified the 1977 Additional Protocol
        .
        .
        .
        .
        Say…… I thought Israel claimed the GC’s aren’t applicable…

        Furthermore, although Israel might give a few minutes telephone forewarning, it has had all the crossings closed under the 2005 agreement and Peace Treaty with Egypt, (it is only possible to have such an agreement over a third party territory as an Occupying Power), thereby preventing civilians from fleeing a war zone.

        Illegal under Geneva Convention 1V…Section II..Occupied territories..Art49…The Occupying Power shall not detain protected persons in an area particularly exposed to the dangers of war unless the security of the population or imperative military reasons so demand. Civilians can not leave the war zone or even flee into the sea, because Israel also controls the Palestinian territorial waters.

      • Kris
        July 10, 2014, 1:37 pm

        @mondonut: “Rockets do not have targeting systems, they are launched indiscriminately in the general vicinity of places. Each one is a war crime.”

        Gosh, mondonut, the U.S. abhors war crimes, so please bring this to the attention of our government immediately! This is a horrible problem, but easily resolved. Once we arm the Palestinians with the latest in lethal military technology, the way we do Israel, there will be no more Palestinian “war crimes,” just videos of Israel in flames, and Israelis trying to get help for their wounded and dead family members, just like Gaza.

        We will all feel better when the Palestinians can fight back in this “war” with Israel without committing the “war crimes” of firing homemade rockets that rarely hit anything.

      • Sumud
        July 10, 2014, 4:26 pm

        @mondonut

        A new low for Mondoweiss, defending the attack of population centers with unguided (indiscriminate) rockets.

        Except I said no such thing, nor anything remotely like it.

        I asked you to cite relevant IHL stating use of unguided weapons automatically constitutes a war crime -as you claim. Instead you quote something about indiscriminate attacks. They’re quite different. Please try again.

        I also asked if you are claiming Israel only ever uses guided weapons, you didn’t respond. So…?

      • talknic
        July 10, 2014, 3:42 pm

        @mondonut: “Rockets do not have targeting systems..”

        … fletchettes do not have targeting systems!
        … cluster bombs do not have targeting systems!
        … white phosphorus in daylight where there are no Israeli troops to hide! does not have targeting systems!
        … landmines do not have targeting systems

        … each one is a war crime

  4. jenin
    July 9, 2014, 1:11 pm

    slightly off topic, but has anyone read the Times’ front page article today on the Gaza situation? all of the NYTimes “picks” for comments are pro-Israel/Zionist, although those are not representative

  5. jenin
    July 9, 2014, 1:17 pm

    actually, sadly, reading more of the comments shows that the ones defending Israel and blaming everything on the Palestinians ARE representative. I’m surprised as recently I’ve felt the NY Times comments section shows more criticism of Israel. Maybe hasbara central is sending in more reinforcements to mitigate the current PR disaster

  6. crone
    July 9, 2014, 1:50 pm

    mondonut… you got some back up for those statements?

    Gaza is occupied territory… do some homework.

    via link to btselem.org

    The Gaza Strip – Israel’s obligations under international law
    Published: 1 Jan 2014

    Despite Israel ‘s extensive control over the Gaza Strip, in its decision on the disengagement plan, the government stated that implementation of the plan would “invalidate the claims against Israel regarding its responsibility for the Palestinians in the Gaza Strip.” In response to several petitions filed in the High Court of Justice following implementation of the disengagement plan, the State Attorney’s Office has argued that, with the termination of the military government in the Gaza Strip, Israel has no obligation whatsoever under international law toward residents of Gaza, who should now direct all their claims and requests to the Palestinian Authority. Implicit in this claim is that Israel ‘s control over the lives of Palestinians living in the Gaza Strip, described above, exists in a normative vacuum in which Israel is not responsible for its acts and their consequences. As we shall see below, the argument is baseless, both under international humanitarian law and under international human rights law.

    much more at link

    • mondonut
      July 9, 2014, 10:50 pm

      @crone

      What point are you trying to make?

      • talknic
        July 10, 2014, 3:50 pm

        crone “Gaza is occupied territory… “

        mondonut then demonstrates the typical empty handed zionist apologist ‘how to be an annoying prick technique’, in the hope that someone will spit the dummy and call the annoying prick an annoying prick so the annoying prick can claim ‘they’re abusive at MW’, when in fact they’re just giving an apt description of an annoying prick, which is exactly what the annoying prick wants

        ———–

        @ mondonut “What point are you trying to make?”

        Seems rather obvious pal link to mondoweiss.net

  7. DICKERSON3870
    July 9, 2014, 4:26 pm

    RE: “Understanding principles of international law is critical if we want a world that abides by rule of law.” ~ Abby Okrent

    FOR ISRAEL’S ÜBER-CYNICAL VIEW OF THE “GAME” OF INTERNATIONAL LAW AND ‘THE RULE OF LAW’, SEE: “The Second Battle of Gaza: Israel’s Undermining Of International Law”, by Jeff Halper, mrzine.monthlyreview.org, 02/26/10

    [EXCERPT] The Israeli attack on Gaza in December 2008/January 2009 was not merely a military assault on a primarily civilian population, impoverished and the victim of occupation and besiegement these past 42 years. It was also part of an ongoing assault on international humanitarian law by a highly coordinated team of Israeli lawyers, military officers, PR people, and politicians, led by (no less) a philosopher of ethics. It is an effort coordinated as well with other governments whose political and military leaders are looking for ways to pursue “asymmetrical warfare” against peoples resisting domination and the plundering of their resources and labor without the encumbrances of human rights and current international law. It is a campaign that is making progress and had better be taken seriously by us all.

    Since Ariel Sharon was indicted by a Belgian court in 2001 over his involvement in the Sabra and Chatila massacres and Israel faced accusations of war crimes in the wake of its 2002 invasion of the cities of the West Bank, with its high toll in civilian casualties (some 500 people killed, 1,500 wounded, more than 4,000 arrested), hundreds of homes demolished and the urban infrastructure utterly destroyed, Israel has adopted a bold and aggressive strategy: alter international law so that non-state actors caught in a conflict with states and deemed by the states as “non-legitimate actors” (“terrorists,” “insurgents” and “non-state actors,” as well as the civilian population that supports them) can no longer claim protection from invading armies…

    . . . A few years ago (April 15, 2005, p. 34) the ‘Up Front’ weekend magazine of ‘The Jerusalem Post’ published an interview with an Israeli “expert in international law” who, tellingly, chose to remain anonymous.

    This is what s/he said:

    International law is the language of the world and it’s more or less the yardstick by which we measure ourselves today. It’s the lingua franca of international organizations. So you have to play the game if you want to be a member of the world community. And the game works like this. As long as you claim you are working within international law and you come up with a reasonable argument as to why what you are doing is within the context of international law, you’re fine. That’s how it goes. This is a very cynical view of how the world works. So, even if you’re being inventive, or even if you’re being a bit radical, as long as you can explain it in that context, most countries will not say you’re a war criminal. . .

    ENTIRE ARTICLE – link to mrzine.monthlyreview.org

    • lysias
      July 9, 2014, 5:05 pm

      Unfortunately, the U.S. government has shared that contemptuous attitude towards international law.

      I am reliably informed (by someone who was at the meeting, and told me shortly thereafter) that Bush père‘s Attorney General William Barr said at an interdepartmental meeting of the U.S. government circa 1990: “Fuck international law!”

      Then again, Richard Clarke has written that, in the White House on the evening of 9/11, Bush fils said, “I don’t care what the international lawyers say, we are going to kick some ass.” Which he then proceeded to do, by launching torture and a war of aggression.

      • DICKERSON3870
        July 10, 2014, 11:45 pm

        RE: “Unfortunately, the U.S. government has shared that contemptuous attitude towards international law.” ~ lysias

        MY REPLY: I agree, and it seems as though they have shared that contemptuous attitude towards international law more and more so in recent years*.
        “Down, down, down we [the U.S.] go into the deep, dark abyss; hand in hand with Israel.”

        * SEE: “Obama’s kill list policy compels US support for Israeli attacks on Gaza”, By Glenn Greenwald, guardian.co.uk, 11/15/12
        The US was once part of the international consensus against extra-judicial assassinations. Now it is a leader in that tactic.

        [EXCERPTS] Israel’s escalating air attacks on Gaza follow the depressingly familiar pattern that shapes this conflict. Overwhelming Israeli force slaughters innocent Palestinians . . .
        . . . Meanwhile, most US media outlets are petrified of straying too far from pro-Israel orthodoxies. . .
        . . . Obama had no choice but to support these attacks, which were designed, in part, to extra-judicially assassinate Hamas military leader Ahmed al-Jabari as he was driving in his car. . .
        . . . Extra-judicial assassination – accompanied by the wanton killing of whatever civilians happen to be near the target, often including children – is a staple of the Obama presidency. That lawless tactic is one of the US president’s favorite instruments for projecting force and killing whomever he decides should have their lives ended: all in total secrecy and with no due process or oversight. There is now a virtually complete convergence between US and Israeli aggression, making US criticism of Israel impossible not only for all the usual domestic political reasons, but also out of pure self-interest: for Obama to condemn Israel’s rogue behavior would be to condemn himself.
        It is vital to recognize that this is a new development. The position of the US government on extra-judicial assassinations long had been consistent with the consensus view of the international community: that it is a savage and lawless weapon to be condemned regardless of claims that it is directed at “terrorists”. From a 15 February 2001 Guardian article by Brian Whitaker on the targeted killing by Israel of one of Yasser Arafat’s bodyguards [emphasis added]:
        “International opprobrium was directed at Israel yesterday for its state-approved assassinations of suspected terrorists – a practice widely regarded as illegal. . .
        . . . “The United States, while also condemning Palestinian violence, made clear its disapproval of the assassinations. . .
        “State Department spokesman Richard Boucher said: ‘The use of Israeli helicopter gunships, Palestinian attacks against settlements and motorists, the use of mortars by Palestinians and the targeted killings by the Israeli Defence Force … are producing a new cycle of action or reaction which can become impossible to control. . .

        . . . As the Council on Foreign Relations documented in April of this year:

        “The United States adopted targeted killing as an essential tactic to pursue those responsible for the terrorist attacks of September 11, 2001. The Pentagon and the Central Intelligence Agency have employed the controversial practice with more frequency in recent years. . .

        In essence, what we find, yet again, is that the governments of the United States and Israel arrogate unto themselves the right to execute anyone they want, anywhere in the world, without any limitations, regardless of how many innocent civilians they kill in the process. . .

        ENTIRE COMMENTARY – link to guardian.co.uk

  8. yonah fredman
    July 9, 2014, 6:35 pm

    Quote: “a woman who served in the Israeli army (as all Israelis are required to do)” (Besides the “obvious” exception that this statement equates Israeli and Israeli Jews…) In fact most Israeli Orthodox women do not serve in the army. Even in Modern Orthodox communities where male service in the army is considered a no brainer, good deed, mitzvah, many of their daughters perform national service Sherut Leumi rather than serve in the army.

  9. lyn117
    July 10, 2014, 12:49 am

    If a reservist can put down her arms and become a civilian, why can’t any “militant” do so as well? (funny that you use a female reservist as example, but whatever). Is the requirement that the reservist not have arms in his/her house, or on their person, or what? Does the fact that many settlers are armed make them “combatants?” even if they aren’t directly attacking someone at the time? I mean, Palestinians are frequently described as “taking part in hostilities” when the only criteria seems to be membership in a militant group. I never hear settlers who are killed by Palestinians described as “taking part in hostilities,” I never hear any Israeli who is other than an active-duty member of the armed forces described as other than “civilian” on the btselem web site.

    • Annie Robbins
      July 10, 2014, 12:57 am

      Palestinians are frequently described as “taking part in hostilities” when the only criteria seems to be membership in a militant group.

      hamas has a militant wing. but lots of people who are members of hamas are not militants.

      • tree
        July 10, 2014, 1:23 am

        And they are being targeted for killing in their homes so even those who are part of the military are being killed in violation of international law. If its OK to kill military members when they are not serving in a combat role, as Israel insists, then it must be OK to target IDF reserve members in their homes as well. Except of course that Israel has rules for “them” and different rules for “us”.

        Annie, I just read this from the Washington Post.

        link to washingtonpost.com

        Amazingly even-handed with reporting from Gaza interviewing relatives of those killed. Check it out.

      • Annie Robbins
        July 10, 2014, 1:30 am

        thanks tree. yes i had read that as well as another (recent) wapo article. putting something together sort of merging news i am hearing from ME analysts along with these reports from western sources.

      • tree
        July 10, 2014, 1:35 am

        You’ve been doing some great reporting lately, Annie. I look forward to your next piece.

      • Annie Robbins
        July 10, 2014, 1:53 am

        thanks tree, but i’ve hardly been reporting at all lately. soon, some interesting observations hopefully.

      • tree
        July 10, 2014, 2:11 am

        I meant in the last several months. :-)

      • Annie Robbins
        July 10, 2014, 2:13 am

        ;) appreciated.

    • Maximus Decimus Meridius
      July 10, 2014, 4:52 pm

      Plus, how is ‘membership in a militant group’ defined? I doubt most of the smaller ‘militant groups’ actually have ‘members’ who sign up and carry club membership cards around with them. Is someone who once drived a car for Islamic Jihad a ‘militant’ for ever after? And what is a ‘militant group’ anyway? Are the settler vigilante groups on the WB ‘militant groups’, especially given that so many of their ‘members’ are heavily armed?

      Then there’s the irony that Israel is one of the most militarised societies on earth. We’re being told that 40,000 reservists are on standby for a possible ground invasion of Gaza. Where do these men live? Presumably in ‘civilian’ homes, in ‘civilian’ neighbourhoods with their families. Yet by Israel’s own standards, they are ‘militants hiding behind civilians’ and perfectly legitimate targets for attack – along of course with any of their family members how happen to be nearby.

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