Israel, Gaza and the tragic justifications for war
By Binoy Kampmark, RMIT University
Gaza, ostracised, enclosed and pummelled, is being levelled – again. Israel’s case against Hamas, expressed both via air strikes and a social media war, is one of self-defence. Article 51 of the United Nations Charter affirms that right, one accepted in customary international law.
But the comments of the Israeli minister Operation Pillar of Defence are instructive and existentially terrifying: “the goal of the operation is to send Gaza back to the Middle Ages”. By any stretch of the imagination, such a statement is tantamount to evidence of a war crime, both in preparation and in commission. It is disproportionate and heedless of resolution, though it is justified by a shock and awe campaign via social media.
So where does international law stand on the conflict?
In terms of the dry legal matter, the jus ad bellum conditions must exist before conflict commences. Policy makers, in other words, must be justified to start the war.
The second set of conditions are jus in bello – the way a war is fought.
Israel might well have been justified in the first premise, but the second is more difficult to sustain – shelling, for instance, densely populated residential areas, and destroying militants’ family homes are problematic. Such instances are bound to result in collateral killings, which violates that condition.
But what are they fighting for? Justice in war is often the noble dream, an aspiration rather than a realisation. More often than not, the more suitable motif is tragedy; a conflict, as Hegel defined it, of right against right. The Israeli-Palestinian conflict is a reversal of that premise, a persistent attempt to correct wrongs with an application of other wrongs.
The only justice here is that of the barrel, the missile and the tank. The tragedy is that Hamas feeds off such logic as well. Its leaders, fighters and family members are being killed, and the response, rather than reconsidering the use of missiles on Israeli civilian targets, is to ramp up the pressure. For about a decade, their crude projectiles have been used with effect, killing 15 civilians. New rockets have been used – the Iranian Fajr and Russian Grad, to name but a few examples. Israel’s Iron Dome anti-rocket missile system has been deployed with some success, but still missiles get through.
The argument from the Palestinian side is that justice should come in measures of proportion. Yes, the rockets might stop, but what of Israeli settlements, and the crippling blockade of Gaza? Aggression of one sort is supplemented by aggression of another, the violence of the gun with the violence of strangulation and malnutrition. The blockade of Gaza is tantamount to an act of war for some, even if others see it just falling short.
Israel’s blueprint is simple and disproportionate – incursion, retaliation in the form of strategies such as Operation Cast Lead of 2008-9, that led to the deaths of 1300 people. Again, we have a wrong against a wrong, an allegiance to violence rather than an allegiance to peace. The victory, if there is ever such a thing in these conflicts, will always be with a force like Hamas. The terms of the game were dictated by Hamas, enabling them to claim what Carlo Strenger has described as “a symbolic victory” when the dust settled.
And now the pattern is repeating itself: initial Israeli public approval for air strikes, but a fear of a bloody ground assault.
The law can only ever be a blunt instrument when confronting war. No “right” to defence can be translated to a right to starve subjects and delegitimise political orders. Justice, in a sense, is often outside the law. Acknowledgement, memory and forgiveness are often apart from the otherwise encumbered legal process.
Whatever military “operations” are called – be they Cast Lead or Pillar of Defence, their modus operandi is not so much an expression of justice but its silencing. It is precisely this form of atavism that must be challenged.
Binoy Kampmark does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations.
This article was originally published at The Conversation.
Read the original article.
{ 5 comments… read them below or add one }
Kim 11.21.12 at 6:22 pm
Personally, I think the Palestinians should be grateful for the generous humanitarian gesture of the Israeli minister that “the goal of the operation is to send Gaza back to the Middle Ages.” Compared, say, to US General Curtis LeMay’s May 1964 message to the Vietnamese that “they’ve got to draw in their horns or we’re going to bomb them back into the Stone Age.” I mean, the Stone Age ended between 4,ooo and 6,500 years ago, so a send-back to the Middle Ages, a mere few centuries, constitutes real moral progress, the war-plan of a truly civilised society.
I suppose it would be churlish to mention that, of course, LeMay lived to eat his words. Churlish too to mention that in Amos 1-2, the prophet pronounces judgement on the war-crimes of Israel’s neighbours — including Gaza! (1:6-8) — his hearers no doubt shouting in righteous triumph, until — what goes around, comes around — he pronounces that same judgement on the people of Israel themselves (2:6ff.).
By the way, on “just war” doctrine, Judaism has developed its own ethical norms. Interestingly, however, unlike traditional Christian jus in bello doctrine, these do not include “proportionality”. Hmm.
geoffff 11.21.12 at 10:02 pm
Thank you Richard for posting this. I would have overlooked it and not taken the opportunity to reply at the Conversation and the blogs.
I believe that Israelis may be interested to know what is being said about their human rights in polite circles in the West while their lives are being so grotesquely molested by rage infused killers with manufactured grievances off the shelf.
I also thing that Jews everywhere may be interested in Kim’s comment about proportionality.
I’ll post my comment at the Conversation separately
geoffff 11.21.12 at 10:04 pm
This article is a classic example of how murderous attacks on human rights can be dressed up in some Tolkien language that I cannot believe any serious lawyer still uses to make the attacks look like perfectly legitimate exercises of international law.
I am of course talking about the human rights of the Israelis.
Let’s be specific about this. The human rights of the remaining Jews of the Middle East and all those who shelter under their strong but tiny democracy on the spit of land that the world has begrudged her, barely larger than a decent sized sheep run.
This latest attack on the Jews is obscene but no more than all before. Watch closely as it unfolds.
Religious fuelled fanatics toss rockets mortars and missiles over the border aimed specifically at the civilian population. Acts that by any standard are vicious war crimes.
They shelter these cowardly attacks from under their own dragooned civilian population. Women and kids. Terrible acts
Another war crime.
The Israelis have responded with a precision that leaves military tacticians everywhere quietly astonished. Nothing like this has been achieved before. Over 2000 air strikes and the civilian death toll has been so low that the Hamas blood libel specialists and their allies in the Western left have been forced to use the corpses of kids killed in Hamas misfires and Syria for their propaganda dead baby pictures aimed at infuriating the mob.
At the time of writing it looks possible the Hamas war criminals have been dragged to their knees and will agree to stop trying to murder Jews in this way for a while in return for Israel doing what it was doing to start with. Minding her own business.
So it is a distraction from the vicious war crimes that they and the other sick political cultures that infest the Arab Muslim world and Iran and rage through Gaza like the Brisbane River in flood are inflicting on the civilian populations of one another right now.
A distraction from the crimes and wars against the people that political Islam is waging into the Arab Autumn just as it has since the end of the First World War..
In human carnage on a vastly greater scale as it has always been for sixty or indeed a hundred years. You would have to be strangely indifferent to the value of human life to overlook that.
So here we are on the other side of the world in a peace taken for granted engaging in what passes for intellectual polite discourse and all that can be offered to half the surviving Jews of the world and their remarkably productive and brave little democracy is what?
Take the rockets mortars and missiles among your women children and old folk for a week and the world will not notice. The ABC didn’t even bother to report it even though they have correspondents living in the country. Arabs trying to murder Jews. Dog bites Man. Not news the old joke goes except it is no longer funny. A dog biting a man is news.
There is something very sinister that a discussion in the West cannot begin from the starting point that the Jews of the Middle East once widespread throughout Muslim lands, but dispossessed and now focused almost entirely in one remarkable little country, have the rights of all other people whether or not they are denied from other populations by ugly tyrannies like Hamas and its allies in Gaza and abroad..
By this stage in the ascent of civilisation
The writer talks about the Middle Ages. That would be progress for Hamas and its allies.
One might wonder what Israelis who are currently going through the hell of terror attacks that no Australian would tolerate for a second might think of an article that so callously brushes over their legal and human rights as if they have none at all. As if they are not human.
You might find out if you are interested. .. This comment together with the post will shortly be front paged on this and allied blogs.
http://geofffff.blogspot.com.au/
cross posted Geoffff’s Bar and GrillL
hat tip the connexion
Richard 11.21.12 at 11:00 pm
Can I ask what gives you the idea that this article provides a legal justification for the attacks on Israel? It does no such thing!
geoffff 11.22.12 at 10:18 am
It provides no basis for denouncing the attacks as illegal and depraved. Western academic thought has long ceased to be so judgemental in the face of Islamist imperialism.
Take another look at the article.
It barely mentions the attacks on Israel at all until the web has been spun.
The starting point is Israel’s defence. Is it legal? Is it proportionate? Is it moral? What about the UN Charter? Does it meet the Charter? Does it qualify for the Christian theological stamp of approval as a “just war”? (As if any Christian war has). What about how the war is waged? Does that make it illegal? And finally, given Israel’s original sin , no matter what t does it must be in the wrong and Hamas must have won.
Then, when Israel is found guilty of illegally defending itself, then, and only then are the attacks on Israel introduced for passing consideration.
Guilty. Not of war crimes of the most vicious kind. No way.
Guilty of responding to a wrong with a wrong. The Jewish defence was the wrong to which the preceding attacks on the civilian population of Israel was a wrong, but an understandable wrong given the retroactive wrong of the Jews.