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.