Blatant Misuse of International Law: “Proportionality”, “Collective Punishment” and “Genocide”
Oct 25, 2023 | Oved Lobel
A broad swathe of the pro-Palestinian – or rather, anti-Israel – movement seems to be afflicted with an uncontrollable tic disorder, which compels shouting or writing the phrase “war crimes” whenever Israel does anything in response to Palestinian terrorism. It is clearly a disorder, because it is obvious very few of these people have actually read the Fourth Geneva Convention of 1949, much less seriously studied its interpretation, and are simply spouting phrases without regard to their legal meaning.
These same people appear to imbue International Humanitarian Law (IHL), also known as the Law of Armed Conflict (LOAC), some of which is younger than the State of Israel, with some transcendental power, and believe that merely by repeating the phrase “war crimes”, they have won the argument and settled the matter.
The reality is that war is a hideously destructive and bloody affair, and our ability to watch it live and from multiple angles nowadays brings home the horror and intense empathy for those suffering in a way that was inconceivable for prior generations. Every child pulled from the rubble, every town or neighbourhood badly damaged, feels like a war crime.
But not everything that looks horrifying or impacts civilians is a war crime. Context and intent are everything in actual international law, contrary to what many people seem to believe. The widely believed fantasy version of international law often seems tantamount to saying no bad things should ever happen to innocent people in war.
In reality, IHL, and particularly the Fourth Geneva Convention, exists as an agreement among civilised nations to try to mitigate the impact of war’s horrors on civilians to the greatest extent possible without crippling the ability of nations to defend themselves. That is all it is. It is largely only Western countries, including Israel, that adhere to it at all, and Israel reportedly has a higher standard than most other Western countries in applying these laws.
Israel’s exceptionally high standards have been attested to by those in a position to know, including Col. Richard Kemp, the former commander of British forces in Afghanistan, as well as Senator Andrew McLachlan, who served in the Australian Army Legal Corps and told an AIJAC function several months ago that “[Israel’s] standards of applying the laws of armed conflict are higher than [Australia’s].”
David French, a well-known US political commentator and former judge-advocate general officer in the US army, explained: “The laws that apply are actually pretty simple. The facts are complicated.”
French also points out the double standard applied by many to Hamas, which commits war crimes incessantly, including with every rocket fired at Israeli civilians, yet is almost never subjected to the same levels of condemnation as Israel. The “pro-Palestinian” crowd doesn’t have the same “war crimes” tic when they are flagrantly committed by those they support. Almost as if their primary grievance is Jewish self-defence rather than “war crimes”.
Below are the three most common buzzwords that don’t mean what anti-Israel advocates claim they mean:
Whenever Israel attempts to defend itself, the constant refrain from anti-Israel advocates is that its response is “disproportionate” – as if the IHL concept of proportionality means a response that feels or seems equal in scope to the terrorist attack or act of war that provoked it.
The reality, as explained by the Red Cross, is this:
The principle of proportionality prohibits attacks against military objectives which are “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.”
In other words, the defending military has to assess whether the military advantage of a particular action outweighs the collateral civilian damage that might occur. Unless a critic is part of the military bureaucracy or knows precisely how and why a particular decision was made, they cannot possibly weigh in on the proportionality of an action
Proportionality certainly has nothing to do with the scale of the attack that provokes the defensive military action, and given what happened on October 7, “pro-Palestinian” advocates should be very happy that isn’t what it means.
As UK commentator Douglas Murray recently told an interviewer who insisted on a “proportionate” response the way most people are using the term:
[This] would mean that, in retaliation for what Hamas did in Israel on Saturday [Oct. 7], Israel should try to locate a music festival in Gaza, for instance – and good luck with that – and rape precisely the number of women that Hamas raped on Saturday. Kill precisely the number of young people that Hamas killed… They should find a town of exactly the same size as a town like Sderot, and make sure they go door-to-door and kill precisely the correct number of babies that Hamas killed in Sderot… and shoot in the head precisely the same number of old age pensioners as were shot in Sderot.
A recent exchange between a Palestinian journalist and State Department spokesperson Matthew Miller is illustrative. The journalist asks the following:
Suppose, assuming, that you have Hamas fighters or Hamas operatives in every single building in Gaza. So they have the right to strike every single building in Gaza?
To which Miller responds:
If there is a legitimate military target, they have the right to strike it, yes, and do so in a way that, to the maximum extent possible, minimizes civilian harm.
In the minds of anti-Israel advocates, the phrase “collective punishment” appears to mean anything Israel does that impacts the lives of Palestinians not directly involved in terror attacks. Once again, the law on “Collective Punishment” is about the intent and target of the military action, not the outcome.
Article 33 of the Fourth Geneva Convention, from which this concept is derived, simply states:
No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.
This provision is generally interpreted to apply only to populations directly under the control of the warring state – such as Prisoners of War or conquered civilian towns – who have penalties imposed on them for crimes or actions committed by another person or persons, such as the Nazi practice of butchering whole towns if one of their soldiers was killed by a partisan.
The provision doesn’t generally forbid actions that may adversely affect the citizens of enemy territory, and certainly not legitimate military actions that have the side effect of doing so, so it’s unclear how any of this applies to current Israeli operations in Gaza. The Gaza Strip, after all, has not been occupied by Israel for nearly 20 years despite absurd claims by the UN and NGOs to the contrary.
Palestinians are suffering from actions aimed at Hamas, which has turned nearly the entirety of the Gaza Strip’s civilian infrastructure into military targets by building tunnels underneath and throughout cities and using everything from hospitals to mosques to UN schools as arms depots and HQs, or areas close enough to endanger them. Unfortunately, any rocket launched from a civilian area turns that area into a military target. It absolutely is not “collective punishment” against innocent Palestinians to attack legitimate military targets, even if civilians are affected by those attacks.
Other groundless claims about supposed “collective punishment”, like ceasing electricity provision to Gaza, are dealt with more comprehensively here. As for the “siege” of Gaza, IHL does not prohibit or even define sieges, which are an acknowledged and legal tool of warfare, providing the aim of the siege is not to deliberately starve the civilian population (which of course is not the case here).
Perhaps the most ridiculous and vile claim by Palestinians and their useful idiots in the West is that Israel is committing genocide against the Palestinians. The Palestinian population has been growing rapidly, more than doubling in 30 years – Israel’s incompetence at “genocide” must know no bounds.
Genocide is not simply large numbers of people being killed, something that occurs in every war, especially in dense urban environments like Gaza. Millions can die and it still wouldn’t be considered genocide without a clearly formulated intent, as defined by the Genocide Convention, “to destroy, in whole or in part, a national, ethnical, racial or religious group.” Israel very obviously has no intent to destroy the Palestinians in whole or in part, unlike Hamas, which openly declares such intent in its Charter and whose attacks against Jews match that intent.
One perceptive Tiktok user pointed out that Israel has dropped a staggering amount of munitions in two weeks on one of the most densely populated residential areas in the world and hasn’t even killed one person per bomb, despite the fact that each bomb could theoretically kill hundreds.
Yuan Yi Zhu, an assistant professor of International Relations and International Law at Leiden University, the Netherlands, and a Research Fellow at Harris Manchester College, Oxford, recently tweeted:
International humanitarian law has broad acceptance because it seeks to mitigate the worst effects of armed conflict instead of banning it entirely. If it’s construed in a way that allows no practical military operations to take place, belligerents might just ignore it outright.
In the end, Israel will set the goals for this war and define the means it uses to accomplish them within the bounds of IHL in the war of self-defence it is permitted to launch under the UN charter. That won’t mean there won’t be continuing horrendous carnage and Palestinian civilian suffering – and we will see all of it in gruesome detail every day, and it will shake all of us.
But not every example of the horrors of war is a war crime, nor every large number of deaths genocide. Pretending that they are does not make war less deadly and horrific; rather, by rendering the existing legal framework completely unworkable, it actually helps make wars both more likely and even more unconstrained.