Apply international law and decide if Israel is guilty

The disproportionate and deadly force applied by Israel violates the principle of proportionality. (EPA)

The disproportionate and deadly force applied by Israel violates the principle of proportionality. (EPA)

In the past weeks, thousands have protested in London, Paris and Frankfurt, triggered by the Israeli attacks on Gaza, which many consider to be in violation of international humanitarian law and international human rights law. South African public intellectuals have been particularly vocal on Israel’s treatment of Palestinians.

But the South African response often lacks reasonableness. For Jessie Duarte to compare the Israeli government to the Nazi regime is wrong.
This kind of deliberately inflammatory rhetoric is not only ignorant of the context of the attacks but is entirely unconstructive. It merely serves to vindicate those who believe the South African government has a pro-Palestinian agenda. It does damage to the memory of those who were murdered in the Holocaust. Not only Jews but civilised people everywhere should be incensed by this kind of statement.

Opinions cannot be formed merely on the basis of whether one loves or hates Israel. The conflict should not be assessed on the basis of emotion or religious affinity. The conflict should not be viewed as a “clash of civilisations”.

One way of injecting reasonableness into the debate is to focus on international law and to ask whether Israel has violated international law in its war on Gaza. International law is a great equaliser. No country is exempted from respecting the rules of international humanitarian law.

There are three reasons, I argue, to say international humanitarian law has been breached.

First, the disproportionate and deadly force applied by Israel violates the principle of proportionality. It is not only the number of casualties that are radically disproportionate: the weaponry used by Israel is disproportionate in its impact.

The rockets fired from Gaza have steadily increased in range but remain unsophisticated. Israel’s sophis­ticated missile defence system has intercepted 71 of the 255 rockets fired since the start of this conflict. Israel uses heavy mortar systems as well as a sophisticated missile system.

Second, Israel’s actions violate the principle of distinction, which requires the protection of civilians during armed conflict. The majority of Palestinians killed in the current conflict are civilians. The UN estimates that 80% of the casualties have been civilians. More than 30 children have died. There is universal consensus that the indiscriminate killing of civilians is a war crime.

And it is not just the deliberate targeting of civilians that is prohibited. Strikes that indiscriminately harm civilians or civilian objects are also forbidden. Military strikes aimed at a military target but which hurt civilians can be prohibited if precautionary measures are not taken.

Third, Israel’s actions amount to collective punishment, which violates the Fourth Geneva Convention and international humanitarian law. Soon after the kidnapping of the three Israeli teenagers, members of the Israeli Defence Force stormed into civilian houses in Hebron and terrorised the inhabitants.

These actions have been justified by Israel’s highest court, which said that any perpetrator of a crime such as the abduction and murder “should know that his criminal acts will not only hurt him but also cause great suffering to his family”.

Israel’s acts of reprisal in the West Bank and Gaza are evidence of a belief that the entire Palestinian community should suffer.

Is there another side to the coin? Those who focused on the kidnapping of the Israelis forgot about the less-publicised killing of two Palestinian teenagers by Israeli military forces on May 15 during a demonstration in the occupied West Bank.

Human Rights Watch described this action as a war crime.

It is often argued that Israel’s existence is at stake. Groups such as Hamas deny the legitimate existence of a state of Israel. It is also argued that the hundreds of rocket attacks on Israeli territory by Palestinians make counterattacks inevitable.

But it is difficult to ignore the critical fact that no Israeli has been killed in the latest rocket attacks launched from Gaza. But nearly 200 Palestinian civilians have been killed and the Palestinian healthcare system is strained to the point of collapse.

The purpose of international humanitarian law and human rights law is to protect human life, particularly civilian life and human dignity. Only the most irrational observer would not see that Israel routinely violates these values.

After the previous Gaza war, the international community was too timid to condemn the violence with one voice. If the killing of Palestinian children does not motivate the international community to intervene and stop the latest cycle of killings, nothing will. Non-intervention will be a victory for the enemies of freedom, democracy and peace.

Mia Swart is a professor of ­international law at the University of Johannesburg

Mia Swart