Apparently two Israeli soldiers were killed when attacked by Hamas fighters wearing IDF uniforms. This is a crime under the rules of war. You can disguise yourself to move around (a ‘ruse de guerre’), but not to attack enemy combatants.

There is logic here, which I’d like to explore more. And also to look at the broader implications of morality and otherwise (barbarism) on both sides of Operation Protective Edge.

Walzer in ‘Just and Unjust Wars’ explains that, in principle, in a war there are two classes of people with different privileges. Combatants have the privilege that they can kill enemy combatants. Non-combatants have the privilege that combatants will not try to kill them. Note that this has nothing to do with innocence or guilt. Hamas has no right to try and kill Israeli civilians because they are guilty (in Hamas eyes) of being Jews living in Islamic lands. And equally Israel has no right to attack Gazans because they are presumed to actively support, work for, or vote for, Hamas.

Clear identification of who is whom is critical to the application of this rule. Hence attacking when wearing the wrong uniform strikes directly against the moral intention of this classification.

A Lebanese-based Hamas spokesman (a lot of senior Hamas seem to live comfortably outside of Gaza) in an interview I saw recently argued that their rockets are aimed at military targets in Israel, not at civilians. Now, although this seemed at first a preposterous claim, it has some merit. Their defense argument (the rule of ‘proportionality’) says that you can risk enemy civilian lives if on balance the advantage of the military objective is greater, as perceived prior to the attack. So Hamas could say that, when they fired, their intent was to hit a military target.  ‘We missed 2003 times out of 2003. Sorry. We just made mistakes.’ (I mean they could say it in a theoretical defense.  I suspect the only apology they might actually make is to Gazans that they had failed to kill Israelis.)

Israel used the same argument when apparently a naval gun killed Gazan boys on a beach. They said ‘Sorry. Will look into it. When we fired we thought the beach activity could have been Hamas fighters. A tragic mistake.’

So what’s the difference between the two sides’ treatment of non-combatant privilege? How might the International Criminal Court (ICC) process these arguments?

As I see it, they would have to look at context. There would be no problem finding Hamas statements about killing Jewish and Zionist non-combatants. It would be easy to track missile trajectories to see how many (if any) were aimed at military targets. And to look at accessible military installations that appeared not to be targeted. To me the evidence is clearly of barbarism, not mistakes.

Conversely, the Israeli government isn’t raving in public about killing Muslims or Arabs. Israel could point to the numerous (but by no means universal) warnings given to non-combatants. Even though this give a military advantage to Hamas, it demonstrates that the IDF tries to maintain a level of morality although sometimes it mistakenly kills people. (Sorry. But armies are people killing machines.)

Endangering one’s own people by not recognizing the distinction between combatants and non-combatants is also a war crime.

First look at the Hamas perspective. Putting on uniforms would be suicidal. There are no resources to evacuate your non-combatants. Separating yourself from non-combatants (civilians, rescue services, the UN, etc) is nearly impossible in the crowded streets of Gaza City. Since you are out-numbered and out-gunned, you choose the tactical advantage of mixing with the general population when the IDF comes at you.

But now looked at from the Israeli perspective, this choice is disastrous for the non-combatants of Gaza. Some examples.

As I write, Hamas asked for a truce to evacuate wounded. Israel at first refused since it believed fresh Hamas fighters and weapons would be brought back in the Red Crescent ambulances.

An example from yesterday. 20 missiles were found in a UNWRA school. The UN returned them to Hamas (!!). So now, if the IDF thinks it sees missiles in a UN facility, is it going to say, ‘No, it can’t be true, the UN is a non-combatant’? Or is it going to fire a tank shell?

Another example. The only way Israeli troops can distinguish between combatants and non-combatants, when the fighters wear no uniforms, is if they are shot at. So you’re an IDF soldier. Someone in a white T-shirt, jeans, and black sneakers runs across the street firing at you and ducks into a building. Then someone in a white T-shirt, jeans, and black sneakers runs back across the street. You shoot him. But it’s just a father trying to rescue his child. A dreadful mistake.

This is why breaking the distinction between combatants and non-combatant is barbarism.