In the Media

Daily Telegraph – 24 October 2023

It was widely reported last week, based on claims from the Hamas-run Gaza Ministry of Health, that Israel had struck Gaza’s Al-Ahli Baptist Hospital, killing as many as 500 Palestinians. Israel has now supplied overwhelming evidence, including video footage and intercepted phone calls between Gaza terrorist operatives, that a rocket Palestinian Islamic Jihad launched nearby caused the carnage.

US President Biden has also agreed the evidence shows Israel was not responsible.

It was not simply the attribution of blame to Israel that was wrong – we now know the misfired rocket landed in the hospital car park with the hospital itself not suffering serious damage, while the death toll was also likely exaggerated. Indeed, one in five rockets fired by Hamas and Palestinian Islamic Jihad have misfired, landed in Gaza and often kill their own civilians.

The episode is a reminder claims by the Hamas-run Ministry of Health simply cannot be trusted, including its widely repeated claims about both the numbers and nature of the casualties from Israel’s bombing campaign against Hamas targets in Gaza.

Israel’s attacks on Hamas of course follow the vicious, depraved mass-murder Hamas unleashed inside Israel on Oct. 7, slaughtering more than 1800 innocent men, women and children, and kidnapping at least 210 people, including women, children and babies.

The lies about the hospital are part of a larger campaign by Hamas, together with willing allies devoted to supporting Palestinian “resistance”, to prevent effective Israeli self-defence against Hamas following the worst one-day slaughter of Jews since the Holocaust.

In addition to misinformation, another major weapon in this war to prevent Israel from responding to Hamas’ atrocities is the distortion and abuse of international law to argue virtually anything Israel might do militarily to try to end the ongoing threat Hamas poses is forbidden.

Hamas rules the densely-populated Gaza strip, which it seized from the Palestinian Authority in a bloody 2007 coup. Dedicated to Israel’s destruction, since then Hamas has launched more than 30,000 missiles against Israeli civilians – every single one a war crime – while embedding its military infrastructure deep within Gaza’s civilian population. Hamas hides weapons and fighters in homes, apartments, mosques, schools and even hospitals. Its military headquarters is reportedly in tunnels under Gaza’s main hospital.  It routinely fires rockets from dense urban areas, so any counter-attacks will risk harming civilians or their homes. All of this amounts to another war crime known as “perfidy”.

Yet it is being argued that, in essence, international law means these illegal tactics give Hamas impunity to massacre Israelis, because virtually any Israeli response amounts to a war crime.

To make this argument, advocates for the Palestinians throw around international law terms but grossly distort their meaning.

Take “disproportionate force”. It does not mean, as frequently implied, the IDF can only respond with the same degree of force used against it or inflict the same number of casualties Israel incurs.  Proportionality requires weighing the expected harm of an action to civilians versus the military advantage expected. It does not forbid any and all accidental harm to civilians, as is often implied. Essentially it means soldiers taking fire from a single house can destroy that house, but not the entire block.

People also throw around the term “collective punishment” irresponsibly, basically implying that any military policy or action that harms an enemy entity’s civilian population – such as blockades, sieges or sanctions – amounts to illegal collective punishment. But the treaties that underpin the Law of War clearly allow all these tactics when serving a valid military objective – such as denying enemy armies access to material that helps them fight.

Then there is the claim that Israel urging Gazan residents to evacuate the strip’s northern area is also somehow a war crime, even though the purpose is to protect these residents from becoming collateral damage in Israel’s planned ground incursion. The catch-22 being imposed on Israel is clear – Israel cannot invade Gaza to fight Hamas, it is claimed, because this will inevitably kill Gaza civilians in neighbourhoods where Hamas has embedded itself. And it also can’t ask these civilians to leave.

Of course, the statesmen and women who developed the treaties that underpin the Laws of War never intended them to be used this way to protect those who break that law. Hamas’ illegal embedding in civilian areas means the civilian casualties that inevitably result from Israeli self-defence are Hamas’ legal responsibility – though of course Israel is still obliged, as it is doing, to minimise such casualties as best it can.

Moreover, those seeking to protect Hamas from any Israeli counter-attacks are actually doing Gaza’s Palestinian residents no favours. Israel’s war on Hamas will inevitably be bloody and ugly in the short term – but is the only possible way for Gazans to get a better longer-term future. As long as Hamas rules Gaza as a permanent terror base for perpetual war against Israel, their lives will continue to be miserable. Removing Hamas from power is also an absolutely essential precondition for any hope for an eventual two-state resolution.

Dr. Colin Rubenstein is Executive Director of the Australia/Israel & Jewish Affairs Council. Previously, he taught Middle East politics at Monash and Latrobe Universities for many years.