OPINION
Jamie Hyams
Jamie Hyams is a senior policy analyst at the Australia/Israel & Jewish Affairs Council.
The West Australian – 15 November 2023
Imagine a world where terrorists could attack neighbouring countries, safe in the knowledge they would be immune from any armed response provided they had civilians they could hide behind. They could attack innocent civilians without fear of consequences, comfortable they could then retreat to plan their next barbaric attack.
This is the obvious corollary of claims that simply by fighting Hamas in Gaza, and tragically killing civilians despite its efforts to minimise civilian casualties, Israel is committing war crimes.
In fact, the law of armed combat uses precisely defined terms that do not mean what Israel’s rusted-on critics think, claim or would like them to mean.
Take accusations of Israeli disproportionality. Proportionality doesn’t mean Israel is limited to doing to Hamas what Hamas did to it. The idea of war is to defeat the enemy. Israel is entitled to attack any legitimate military target, provided it does so in a proportionate way. So, for example, it should use only the force needed to destroy a legitimate target, but not cause excessive collateral damage.
Israel’s recent attack on the Jabaliya refugee camp was labelled a war crime, but Israel struck a legitimate military target — a military command centre with numerous terrorists including a senior Hamas commander responsible for various atrocities.
It must also minimise civilian casualties. Israel does this by warning civilians of coming attacks, giving them time to evacuate. In this conflict, it has also urged residents in the north of Gaza to escape the fighting by evacuating to the south.
Israel is also accused of collective punishment. In fact, it is not capable of committing that crime. Collective punishment only applies when a party that has physical control over a population punishes members of that population for actions of others, for example, by executing prisoners of war because of sabotage by those prisoners’ compatriots. Israel cannot carry out collective punishment simply because Hamas controls Gaza, not Israel.
This allegation has mostly been raised regarding Israel’s siege of Gaza. A siege is a permissible wartime tactic, and Israel is certainly not required to assist its enemy to fight against it, provided Israel is not subjecting civilians to starvation. In this case, Israel is allowing increasing amounts of humanitarian aid to enter Gaza from Egypt. Israel also knows Hamas is hoarding large supplies of food, water and fuel, which should be made available for Gaza’s civilians. Fuel is especially sensitive, because while civilians need it to generate electricity, Hamas uses it to power its rockets and ventilate its military tunnels, and has stockpiled between 850,000 and one million litres.
Israel has even recorded Hamas members discussing fuel they have stolen from hospitals. Nevertheless, Israel has now agreed to supply fuel to Gaza hospitals to power their generators.
Some critics have even seized on Israeli efforts to avoid civilian casualties to accuse it of war crimes. Israel’s calls for Gaza’s civilians to evacuate south have been mischaracterised as ethnic cleansing.
So apparently Israel can’t attack where civilians are, but can’t help them escape the danger either.
Israel has even been accused of genocide. Genocide is the intention to eradicate all or a significant percentage of a particular ethnicity, racial or religious group. Given the strength of Israel’s military, the steps it takes to minimise civilian casualties, and the numbers it could actually kill in Gaza if genocide was its intention, anyone making that accusation has forfeited any right to be taken seriously.
Numerous war crimes have been committed in this conflict, but all by Hamas. Its barbarous October 7 massacres were clearly war crimes, as is every rocket it fires at Israeli cities and towns. Its members dress as civilians, or even Israeli soldiers, while fighting or carrying out terror attacks — also a war crime.
Hamas also demonstrates its own callous disregard for its own people’s lives, using them as human shields by hiding its fighters and military infrastructure among and under them. It even prevents them from escaping danger, blocking roads and reportedly shooting people to stop them evacuating south. Israeli forces attacking Hamas at Jabaliya were confronted with a line of 100 women and children pushed out by Hamas to protect its fighters. The main Hamas military headquarters is in a bunker under Gaza’s main hospital, Shifa Hospital.
For Hamas, every Palestinian civilian killed is a small victory in its propaganda battle against Israel.
Of course, it also lies about civilian fatality numbers for that precise reason. These Hamas war crimes make it infinitely harder for Israel to minimise civilian casualties as it does what it now must — uproot Hamas so that it can never again commit atrocities like those of October 7. Those who falsely accuse Israel of war crimes, especially while overlooking Hamas’ genuine transgressions, are giving comfort to a genocidal terrorist group that brings death and destruction to civilians on both sides.