The Geneva Conventions—the bedrock of the laws of war and one of the world’s most widely ratified treaties— turned 60 this month. But one government was not celebrating. In fact, Israel had already launched a campaign to undermine these essential rules for protecting civilians caught in war.
Shortly after a UN fact-finding mission led by former South African Justice Richard Goldstone issued a report this fall lambasting Israel (and Hamas) for war crimes, Prime Minister Benjamin Netanyahu instructed his government “to examine the facilitating of an international initiative to change the laws of war in keeping with the spread of terrorism throughout the world.” Israeli officials said the laws of war tied the hands of democratic governments.
Israel is understandably frustrated by the difficulty of fighting Hamas, an urban-based armed group that indiscriminately attacks Israeli civilians. But the kind of asymmetric warfare that typifies combat with terrorist and other armed groups is nothing new. It was widespread at the time of the adoption of the Geneva Conventions in 1949, as illustrated by the militant Zionist group Irgun’s fight against the British colonial rule of what was then Palestine. And it continued during the many wars of national liberation of the 1950s to 1970s.
The Geneva Conventions and their additional protocols have long imposed strict rules on the conduct of hostilities designed to protect civilians from the hazards of these conflicts. These rules apply to governments and armed groups alike, regardless of who is the defender or the aggressor.
Governments confronting difficult conflicts sometimes argue that violations by terrorists or armed groups, such as deliberately attacks on civilians or the use of civilians as “human shields,” justify violations by opposing forces. But the laws of war are not built on reciprocity. They impose obligations on each warring party regardless of the conduct of others. The reason is that abuses are common in armed conflict, so if one side’s misconduct could be cited to excuse another’s, there would be an inevitable downward spiral of increasing abuse. Hamas firing rockets from civilian areas in Gaza into civilian areas in Israel thus does not justify Israel’s unlawful conduct.
In fact, Israel’s problem is not that the rules are inappropriate for asymmetric conflict, but that the government chose to ignore them in Gaza. As the Goldstone report pointed out, when the Israeli military used such weapons as heavy artillery, flechettes, and white phosphorous (which causes horrible burns) in densely populated areas of Gaza, and when it authorized the massive destruction of civilian infrastructure, it flouted the law. No other Western military doctrine today would permit such indiscriminate attacks or deliberate destruction.
Instead, there is strong evidence that Israel wanted Gazan civilians to pay the price for Hamas's abuses, and that the decision to impose that cost was taken not by junior officers in the field but by senior government officials. As Ehud Olmert, prime minister during the war, reportedly said in January 2008 about the Gaza blockade, Israel would not create a humanitarian crisis in Gaza, but "[t]here is no justification for demanding we allow residents of Gaza to live normal lives while shells and rockets are fired from their streets and courtyards at Sderot and other communities in the south."
Olmert repeated the notion after the war, reportedly telling his cabinet that, "The government's position was from the outset that if there is shooting at the residents of the south, there will be a harsh Israeli response that will be disproportionate."
With culpability running to such senior levels of government, it is no surprise that Israel wants to rewrite the rules.
Moreover, this stated rationale for ignoring the Geneva Conventions has nothing to do with the difficulties of fighting an urban-based militia such as Hamas. No one could credibly claim that an effective way to attack such a militia is by air-bursting white phosphorus or firing 155mm high-explosive shells indiscriminately over an area heavily populated by civilians.
Moreover, Olmert’s suggestion that it is appropriate to punish the people of Gaza—in retaliation for having voted for Hamas or, insofar as they have a choice in the matter, tolerating its policies—is dangerous. Hamas could say the same about Israelis’ support for their government to justify attacking them. That misguided argument is entirely contrary to the requirement that all sides in a conflict have a duty at all times to target only combatants and do everything feasible to spare civilians. This is the foundation of the laws of war.
Fortunately, most of the world seems to be strengthening its support for these principles. After the Bush administration’s indifference to the laws of war in response to the 9/11 attacks, the Obama administration has firmly embraced the Geneva Conventions. Today, the prevailing U.S. doctrine—most notably in Afghanistan—stresses the importance of protecting civilians, even in asymmetric warfare, as the key to winning “hearts and minds” and thus depriving insurgents of the general population’s support.
Israel’s view that one prevails in asymmetric warfare by pummeling rather than protecting civilians is not only illegal but also counterproductive. Contrary to Netanyahu’s claim, what needs rewriting is not the Geneva Conventions but Israel’s abusive and illegal war strategy.
Kenneth Roth is the executive director of Human Rights Watch and a contributor to Foreign Policy In Focus.
On January 7, 2010, Human Rights Watch has updated this article following suggestions that the quote of former Foreign Minister Tzipi Livni ("On my way here I heard that Hamas declared the man killed by a rocket in Ashkelon ‘one of the Zionists' despite being an Israeli Arab. They don't make a distinction, and neither should we.") is ambiguous on whether she meant that Israel will not distinguish between combatants and civilians. Other statements from Livni and former Prime Minister Ehud Olmert support the argument, and one from Olmert has been added here.
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Human Rights Watch has updated this December 30, 2009 article following suggestions that the quote of former Foreign Minister Tzipi Livni ("On my way here I heard that Hamas declared the man killed by a rocket in Ashkelon ‘one of the Zionists' despite being an Israeli Arab. They don't make a distinction, and neither should we.") is ambiguous on whether she meant that Israel will not distinguish between combatants and civilians. Other statements from Livni and former Prime Minister Ehud Olmert support the argument, and one from Olmert has been added here.