The ‘disproportionality’ of the ICJ ruling brought home to me, as an activist against the Uyghurs’ very real Genocide, how much all of us, including Gazans, need fair application of international law
A Manchurian, who supports Israel because “I know what it is like to live with a totalitarian genocidal regime ” left me, one of many Jewish activists against China’s Uyghur Muslim Genocide, with this conundrum.
If I use the international rules-based order of laws and conventions (and Jewish ethics) to call China to account for the Uyghur Genocide, shouldn’t I call Israel to account if it breaches the same rules-based order (or ethics) regarding Laws of Warfare?
Put more simply, am I having my Babka (1) and eating it?
I wouldn’t be the only one!
What about Muslim nations and others, silent on China regarding Uyghur Muslims, now castigating Israel?
What about China, whose fear of Islamist extremism drives the Genocide, selling arms to Islamist Hamas, while Hamas, in return, boosts an economy partly fueled by Uyghur slave labour?
Research in Gaza that finished on October 6th revealed little support for Hamas or wiping out Israel. Although subsequent polling shows this has partially reversed, and others cite celebration of October 7th and other evidence, as proof of civilian complicity, who can be indifferent to the death toll in Gaza? As it mounted, I added a private prayer at the end of my thrice-daily Amidah (2), that no innocents die. And why not? Forefathers Abraham and Jacob and had similar concerns regarding inhabitants of Sdom and Amorah, and Shechem, as did God himself for Egyptian charioteers at the Red Sea.
Very ‘yefei nefesh (3) of me!
But to get real, I read exactly what the codified Laws of Warfare, the Geneva Convention, say. I read it mindful of the unprecedented difficulties imposed upon Israel and Gazans by Hamas, which violates the convention by embedding military assets deep within civilian infrastructure and indiscriminately targeting Israeli civilians, and which infiltrates and staffs its own Health Ministry and international aid agencies like UNWRA.
What I found surprised and slightly shocked me. For, the Laws actually make very tough provision for nations to defend themselves against such enemies.
The legally tolerable level of harm to civilians when pursuing military objectives (proportionality) is therefore higher, especially if the overall objective is to uproot such an entity and its infrastructure, provided civilians aren’t the primary target and receive whatever prior warning “circumstances permit”.
Evacuation of civilians at risk “to the maximum extent feasible” is a legal obligation on both parties. It is not ‘ethnic cleansing.’
Siege is legal.
There is no obligation to supply electricity.
There is an obligation to supply aid and fuel for civilians, through third parties, but this is problematic if significantly siphoned off by the enemy (4).
It is illegal to supply anything to a terrorist organization directly or indirectly.
As a matter of legal fact, neither I (whose military experience amounts to three trial weeks in the combined cadet force at school, aged 12, before my Dad hoiked me out!) nor any other commentator, can tell you, even in the most extreme cases, if Israel is acting disproportionately to its military objective, without knowing the information available then to the ‘reasonable commander” on the ground and the IDF, including expected collateral damage.
I also read what Halacha, Jewish Religious Law, said for, as the Psalmist puts it, “Some trust in chariots, some trust in horses, but we make mention of the name of the Lord our God”. What seemed definitive to me was that as Israel signed the Geneva Convention, breaching it could be a Chillul Hashem (5) and that modern luminaries Aharon Lichtenstein and Shaul Yisraeli (6) regard the international Laws of Warfare as a meta-form of “Dina de Malchuta Dina” (the law of the land is the law), provided they are not antisemitic and are universally enforced. Halacha is clear that in war, the normal ethics of interpersonal relations are replaced by an ethic of relations between nations, the simplest example being that in the former you are forbidden to risk your life; in the latter you are, as soldier, obliged to. And yes, my blood is redder than my enemy’s! “Choose life so you and your offspring will live”
My lay understanding therefore is that the Laws of Warfare (and therefore Halacha) allow states to defend themselves vigorously against entities like Hamas, provided civilians are not primary targets, and all ‘feasible steps” in the ‘particular circumstances’ are taken to limit non-combatant deaths: prior warnings, evacuation, facilitating provision of basic aid.
The consequences, however, are potentially horrific for non-combatants used as human shields by those who prevent their evacuation, divert their aid, manipulate circumstances to restrict the feasible options to limit their deaths, and who are therefore ultimately responsible for their fate, especially in a setting where neighboring states, uniquely, deny civilians temporary refuge.
I don’t mean to minimize innocent Gazans’ suffering, but after 29,000 Israeli attacks had killed 20,000 Gazans, including 8,500 from Hamas, and an unknown number killed by the 12% Hamas rockets landing in Gaza, the ratio of civilians’ to terrorists’ deaths was, at most, 4:3, every ten attacks, compared to the 8:1 global average for war in densely populated areas.
This doesn’t demonstrate proportionality, but suggests, along with the many warnings and evacuations, Israel is making stronger efforts than people claim to avoid killing non-combatants. I think, therefore, that until incontrovertible evidence suggests otherwise, Israel is attempting to follow the international rules-based order through the Laws of Warfare, in circumstances unlike anything other armies have faced.
Nonetheless, I understand the public outcry. One close Muslim friend described what Israel does as “evil”. It must hurt. Gazan civilians, now crying out against their leaders, are caught between the rock of being held hostage by Hamas’s military infrastructure and the hard place of Israel’s overall military objective to dismantle it.
I still have questions of Israel. What’s wrong with more short humanitarian pauses to avert any moral, legal or diplomatic risks of starvation? Why doesn’t Israel deliver aid itself to avoid its diversion?
I have other deeper questions.
Why, to stop the war, don’t the International and Muslim community turn their anger on Hamas, demanding they surrender themselves, their hostages, arms and installations, and that others cut their funding?
Why is it not possible to take Hamas to court for its routine breaches of the Geneva Convention, to protect Gazans and Israelis, and the Genocide Convention, to protect Jews?
However, it seems clear to me, that everyone needs to know the Laws. Indeed this very week, a more lawyerly understanding has been published, as a digital Q & A to help laymen, especially in the diaspora, to have difficult conversations about these issues.
The Manchurian grasps what the international community seems unable to:
If Hamas is allowed to survive this war with a future role in a free Gaza, it encourages any fundamentalist religious or political entity to use the Hamas model of governance to achieve its aims. If China is allowed with impunity to oppress its Uyghur and other minorities with its high-tech digital genocidal model of governance, it encourages other authoritarian regimes to do likewise. Unfortunately, the International Institutions seem unwilling, with the exception of the United States, to face down either model!
To prevent such outcomes Uyghurs, Jews, and Gazans need fair un-politicized application of humanitarian law.
All this was written before the ICJ ruling, which conferred plausibility on South Africa’s concerns about Genocide. Others more qualified have written about its flaws. To me, as a non-lawyer, the ruling seemed not to take into consideration how the particular circumstances of Hamas’s deep military entrenchment within civilian infrastructure impose severe limits on the feasibility of protection of non-combatants.
As an advocate for Uyghurs, I felt extreme sadness that the UN’s top court should upscale WHO’s claim (based on Hamas Health Ministry data) that 15% of women giving birth will have complications, and that peri-natal mortalities might rise to an accusation of deliberate “birth prevention,” whilst the UN’s report into Human Rights in the Uyghur region downscaled the extent of China’s official documented policy of forced birth prevention targeting 80% of Uyghur women.
I have no difficulty with the ruling’s provisions about aid or incitement, but is there not something wrong with an international legal system that cannot take China or Hamas (the government of part of Palestine, a signatory to the Genocide Convention) to the ICJ?
Maybe you think I’m still ‘having my babka and eating it’, or suffering cognitive dissonance?
But having seen, at a private screening, the raw footage from October 7th’s massacre, I understand what is at stake, why the Laws of War are so tough on entities like Hamas, and why we are right to say on our marches, “Free Gaza From Hamas”.
Both Gaza and Israel must renew themselves after this war, without Hamas and Israel’s ‘Kakistocracy’ (Government by the worst type of people in a society), and within the framework of regional prosperity and peace envisaged by the Abraham Accords and Saudi normalization. Perhaps we need a ceasefire that demands this?
There really isn’t another game in town. Unless you want a replay of this war!
VIEWS ARE MY OWN AND EXPRESSED IN MY PERSONAL CAPACITY ONLY
- Popular Jewish yeast cake flavored with chocolate, cinnamon or apple originating in Poland and Ukraine
- Main central prayer said morning, afternoon and evening. At the end in Elohai Nzor Leshoni Mei Rah is one of the places one can add prayers for non Jews
- Bleeding Heart Liberal
- Article 23 in 4th Geneva Convention
- Desecration of God’s name
- Shaul Yisraeli: Amod Hayamini Chapter 16