Judging Israel, Part 1
Judging Israel, Part 1
Gaza may be about to suffer a catastrophe of historic proportions.
As you are undoubtedly aware, on October 7th Hamas broke out of Gaza1 and launched a savage terrorist attack against Israel. There is little need to rehash the grim details, burned as they are into our collective minds. Suffice it to say, with over 1400 dead, thousands injured, and hundreds taken hostage, it was the worst atrocity against Jews since the Holocaust.
From the moment the news broke, it was clear that Israel’s response would be devastating. It was likewise apparent that the people of Gaza, more than Hamas itself, would be the ones to bear the consequences.
In terms of organization and regional support networks, Hamas is well-positioned to survive any Israeli assault. But the millions of Palestinians who call Gaza home? Not so much.
This was likely the whole point. Either Hamas is led by people with no ability to anticipate the consequences of their actions (not out of the question) or it expected precisely the sort of massive retaliation that ensued. Whether they thought it would discredit their rivals in Fatah, mobilize the support of besieged Gazans, or scuttle a possible Israeli-Saudi peace deal, they obviously figured they would gain something.
Israel, for its part, is predictably following the script Hamas laid out.
Since I began writing this, I have grown a bit more hopeful that calmer heads are starting to prevail among the Israeli leadership. It is still possible that the people of Gaza might avoid the worst, terrible though their circumstances already are. Nevertheless, one can discern an evolving Israeli plan for a massive campaign of ethnic cleansing, a genocide, or both.
I’m hardly the first one to point this out. But the signs are grim and they are numerous. And they betray a callous neglect for civilian life to a degree unprecedented even by Israel’s dubious standards.
Consider, first, the indiscriminate nature of Israel’s airstrikes. Israel has bombed Gaza before, but never like this. Although precise statistics are hard to come by, on October 12th the Israel Defense Forces (IDF) disclosed that it had “dropped about 6000 bombs against Hamas targets.”
Six-thousand bombs in five days? In an area one-fifth the size of London but with the same population density? You cannot tell me there is any reasonable effort on Israel’s part to minimize civilian losses.
Breaking the Silence, an Israeli veterans organization which aims to bring awareness to the effects of occupation, agrees. “The little restraint the IDF showed in past airstrikes on Gaza has now vanished,” it wrote. “The clear result of these policies: large-scale civilian casualties.”
Attacking civilians in a manner that is disproportionate to a corresponding military objective is a war crime.
This same indifference toward the welfare of civilians is evident in the IDF’s hopelessly unworkable evacuation orders. On October 13th, it warned the approximately 1.1 million residents of northern Gaza to take refuge in the southern part of the territory. They were given a mere 24-hours to comply, a requirement the United Nations deemed “impossible” without “devastating humanitarian consequences.”
One of the factors which rendered it impossible was the constant and ongoing aerial bombardment. Another was the hodgepodge of confused and contradictory announcements by the IDF such as this one, in which Gazans were informed that the main road south would remain open for another six minutes only. If that weren’t enough, Israel continued to bomb southern Gaza even as it advised people to seek shelter there, prompting many refugees to return north.
Ordering civilians to evacuate without providing a safe and realistic means of doing so is a war crime.
Israel’s wanton disregard for civilian harm is also apparent in its total blockade of Gaza, including of food, water, and medicine. The result, unsurprisingly, is a grave humanitarian crisis. It took a full two weeks for the IDF to begin allowing even a limited supply of goods through the Rafah crossing with Egypt. It continues to block all access from the Israeli side of the border.
This too almost certainly qualifies as a war crime and even a crime against humanity (defined as a widespread and systematic attack against a civilian population, as opposed to a war crime, which need only involve a single victim). In the words of the U.N.’s human rights chief, “[t]he imposition of sieges that endanger the lives of civilians by depriving them of goods essential for their survival is prohibited under international humanitarian law.”
Portents of doom
Far more worrisome than Israel’s current conduct is what it likely has in store. We need not rely on deduction to ascertain its plans; the eliminationist rhetoric of its top officials leaves little to the imagination.
Take defense minister Yoav Gallant who, in announcing a siege which would allow “no electricity, no food, [and] no fuel” into Gaza, added that “[w]e are fighting human animals and we are acting accordingly.” Whether “human animals” is meant to apply only to Hamas or instead to Gazans as a whole is a matter he does not clarify. But the fact that he made the reference in the same breath as he declared a total ban on food—a measure obviously meant to affect all Gazans—is rather telling.
Lest you need reminding, such dehumanizing language often accompanies genocide.
Other Israeli leaders have also assigned collective blame for Hamas’s attacks. “It is an entire nation out there that is responsible,” declared President Isaac Herzog. “It’s not true this rhetoric about civilians not being aware, not involved. It’s absolutely not true. They could have risen up, they could have fought against that evil regime which took over Gaza in a coup ‘d'état,” he said, referring to Hamas’s 2007 seizure of power.
If responsibility is shared, it follows that the punishment should be too. “Humanitarian aid to Gaza?” asked an incredulous Israel Katz, the minister of energy and infrastructure, on October 12th. “No electrical switch will be turned on, no water hydrant will be opened and no fuel truck will enter until the Israeli abductees are returned home,” he vowed, before adding that “no one will preach us [sic] morals.”
Despite being barred under international law, collective punishment has apparently become official Israeli policy. Commenting on the ongoing assault, an IDF spokesperson bluntly acknowledged that “the emphasis is on damage and not on precision.”
On October 21st, the IDF showered Gaza city with Arabic-language leaflets warning that any residents who remain there could be considered “complicit with a terrorist organization.” As the U.N. was quick to point out, attacking civilians is a war crime. “Under international humanitarian law,” a spokesperson announced, “civilians must be protected whether they move or stay.”
Nor was that the worst of it. If finance minister Bezalel Smotrich had his way, he would expand the list of the condemned from stateless Gazans to Israel’s Palestinian citizens (who make up about 20 percent of the population). “You’re here by mistake,” he shouted at Palestinian members of parliament on October 11th. “It’s a mistake that Ben-Gurion didn’t finish the job and didn’t throw you out in 1948.”
Expelling Israeli Palestinians is a longstanding dream of his. “Arabs are citizens of Israel, for now, at least,” Smotrich warned in April. “They have representatives, M.K.s [Members of the Knesset, Israel’s parliament], for now, at least.”
Such incendiary bluster has become par for the course across the Israeli establishment. After pledging the “total elimination of Hamas”—a perfectly legitimate goal in and of itself—Simcha Rothman, a far-right member of the ruling coalition, clarified just what he meant: “There’s a clear-cut test for it,” he told a reporter on October 13th. “With God’s help, a [Jewish] child alone can freely walk down the main street of Gaza. A Jewish child without anyone hurting him—if there will be a main street.”
Former deputy foreign minister Danny Ayalon suggested that Israel is planning the wholesale removal of Gaza’s two million inhabitants to the Sanai desert, in Egypt. Naturally, he made sure to note, any mass-expulsion would be “temporary.” As for how Israel plans to secure Egypt’s agreement to this, Ayalon predicted that it “will have to play ball, because human lives are at stake.” Asked why Israel itself could not receive the refugees—considering, you know, it is Israel’s own military assault that would be forcing them out in the first place—he smirked and tried to change the subject.
Israel, Hamas, and the Law of Armed Conflict
Some of the statements above imply a policy of ethnic cleansing. Others are what can only be described as pre-genocidal. All are unmistakably eliminationist. Not only do they contextualize Israel’s indiscriminate response to date. More ominously, they convey an intent to commit crimes against humanity far graver, and on a much larger scale, than anything Israel or the occupied territories have seen since the end of the British Mandate.
The parties to any war are bound by the Law of Armed Conflict (LOAC). The LOAC, also referred to as the Law of War or International Humanitarian Law, consists of over 150 years of rules and precedents which aim to make such conflicts more humane. No armed organization, whether Israel or Hamas, is exempt.
So long as it abides by the rules set forth in the LOAC, a warring party that causes the death or injury of civilians is not necessarily committing a war crime. The LOAC is based on a number of core principles which bind the conduct of belligerents. Parties must (1) treat both combatants and non-combatants humanely; (2) respect the distinction between combatants and civilians, (3) act in pursuit of a legitimate military purpose, and (4) avoid attacks which would cause civilian harm disproportionate to the corresponding military objective (e.g. you cannot nuke a country just because it lobbed a grenade over the border).
It follows that no belligerent may intentionally harm civilians or treat them with reckless disregard.
What Hamas did on October 7th was obviously a war crime. There can be no plausible military objective in storming a residential area and executing the inhabitants. Hostage-taking is likewise prohibited under the LOAC.
Israel has probably committed war crimes too, although it is less straightforward. For one thing, the IDF, at least in part, is acting in furtherance of a legitimate military objective—destroying Hamas. What’s more, aerial bombardments and even sieges are permissible under international law so long as they comply with the principles outlined above.
Whether Israel has committed crimes in the course these operations is a matter for legal experts, which I am not. I can certainly hazard a guess, and I have done so here. But I am hardly qualified to make a conclusive determination.
Judging by its actions and official rhetoric, however, Israel does appear to be attacking Gaza indiscriminately and with scant consideration for the civilians affected. What’s more, it is doing so on the same indefensible pretext cited by Hamas in its own attacks: Collective punishment.
Nor am I alone in this view; it is shared by the U.N. secretary general as well as a wealth of experts in international law and human rights. Raz Segal, an Israeli historian and professor of Holocaust and genocide studies, goes so far as to call Israel’s conduct a “textbook case of genocide,” a term which, according to other experts, might also describe Hamas’s slaughter on October 7th.
None of this bodes well for a land invasion of Gaza, which appears imminent. Very soon, hundreds of thousands of Israeli soldiers with a fierce and understandable desire for vengeance will be sent into a hostile and population-dense area. Once there, they will conduct urban-warfare operations against an enemy which is deeply embedded in the civilian population. Even without an overarching plan for mass-deportations or genocide, the potential for war crimes is enormous.
Unfortunately, mass-deportations or genocide seem to be exactly what is in the cards. If true, it means we are about to bear witness to one of the worst crimes against humanity since World War II. We can only hope that the mounting international pressure will prove sufficient to stop Israel from acting out its worse impulses.
Some will surely take issue with the foregoing arguments. Am I not holding Israel to a double-standard? Isn’t it wrong to assign moral equivalence to the two sides? Shouldn’t Israel get a pass given the extraordinary circumstances it faces?
Such objections are commonplace in discussions of Israel. They have been especially visible over the past few weeks. Next time, we will address some of these charges.
*Correction: The quote from Simcha Rothman, as initially presented, was mistranslated. He did not say “If there would be Gaza.” He said “if there will be a main street [in Gaza].” Thanks to Avishai Green for pointing out the mistake.
*Correction: Another quote, this one by defense minister Yoav Gallant, also appears to have been mistranslated, or at least incomplete. It initially wrote the following: “In other statements, Gallant has avoided such ambiguity. ‘Gaza won’t return to what it was before,’ he affirmed on October 13th. ‘We will eliminate everything.’” According, again, to Avishai Green, he actually said: "Gaza won't return to what it was before. There will be no more Hamas. We will eliminate everything." Thus, by “everything,” he could be referring only to Hamas and not all of Gaza. The section has been removed.
Together with the West Bank and Golan Heights, the Gaza Strip has existed under effective Israeli occupation since 1967. Israel’s presence in these areas has never been recognized as legitimate by the international community. Gaza and the West Bank are majority-Palestinian; together they are often referred to as the “occupied territories” or simply the “Palestinian territories.” Palestinians who reside in Gaza and the West Bank have no rights under Israeli law. They have launched two uprisings against Israeli rule, the first from 1987-1993 and the second from 2000-2005. In 2006, elections were held for a Palestinian legislature to govern the occupied territories. Those elections saw Hamas win a plurality of the vote, defeating its more moderate rivals in Fatah. When Hamas tried to form a government, Fatah, with the backing of the U.S., undertook a violent bid to displace Hamas and seize control. It did not succeed. In June 2007, Hamas managed to expel Fatah’s representatives from the Gaza Strip and secure control there, leaving Fatah in charge of the West Bank. No election has been held in either Gaza or the West Bank since then. Israel, for its part, withdrew both its military forces and settlers from Gaza in advance of the 2006 elections. But to this day it continues to control Gaza’s land and sea access along with its airspace.