Israel and Hamas both guilty of abandoning their responsibilities to civilians


Tom Clonanon the claims of violations of the Geneva Conventions and the legal obligations of the warring parties

AMID MOUNTING claims and counterclaims surrounding Israel’s intervention in Gaza, a simple military analysis reveals much about the legality of the conduct of the conflict by both the Israeli Defence Forces (IDF) and Hamas.

Israel’s ground incursion into Gaza is being conducted by troops from the IDF’s elite Golani brigade with support from armoured units and special forces. The ground combat operations appear to be concentrated at the northern end of the Gaza Strip on an axis from Deir al-Balah through Bureij towards Gaza City. Concurrent air strikes and further ground operations are taking place to the south near Khan Yunis and the border with Egypt.

The Israeli air force, navy and artillery are also being used to strike at targets throughout the Gaza Strip.

An analysis of the pattern of these missile and artillery attacks shows that they do not follow any predictable firing schedule, are not organised in sequential grid patterns, and so cannot be anticipated by Hamas fighters or humanitarian agencies within Gaza.

As a result, civilians who have been ordered to leave buildings by leaflet drop, text message or phone call from the IDF cannot predict where a “safe house”, “neutralised zone” or evacuation “corridor” might lie.

In response to IDF orders to leave their homes, Palestinian families must play a desperate game of Russian roulette, seeking unknowable safe havens in Gaza’s bombed-out streets.

This game is proving increasingly lethal, even when civilians obey the explicit instructions of IDF troops in this regard.

It appears that the IDF is using the full spectrum of its conventional combat capabilities indiscriminately. Under the terms of the Geneva Conventions, the use of such weapons systems in this manner among civilian population centres is interpreted as “indiscriminate”. In other words, the IDF can legitimately be accused of “wanton destruction” and “wilful killing” within Gaza.

Specifically, IDF attacks in recent days are in direct contravention of protocol one, article 51, sections four and 5a of the Geneva Conventions. They prohibit the use of weapons systems, or a “method of attack that cannot be directed at or limited to a specific military objective” or “where there is a concentration of civilians or civilian objects”.

The Geneva Conventions proscribe such attacks in urban environments where civilians reside and state that, when an attack “could cause incidental loss of civilian life or damage to civilian objects, then the attack must be called off”.

Given the ongoing loss of civilian life in Gaza, the IDF and Israeli government would appear to be legally bound to heed immediately the UN Security Council resolution requirement to halt the offensive.

Similarly, Hamas ought immediately to cease its ongoing war crimes against Israel and the civilian population of Gaza. The indiscriminate rocket attacks against Israeli civilians also represent attempts at “wanton destruction” and “wilful killing”. Unlike the IDF, Hamas does not have the fig leaf of claiming that some of its targets are “military”. It is self-evident that the attacks on Israel are calculated to kill civilians.

Hamas has also been shown to be launching rockets from the environs of schools, mosques and other civilian locales. Such attacks are clear breaches of the fourth protocol of the Geneva Conventions and represent war crimes.

By deploying among the civilian population, Hamas is using innocent Palestinian civilians as “human shields” against IDF retaliation.

By default or design, Hamas’s combat posture is in direct contravention of article 51 (7) of the Geneva Conventions.

The International Committee of the Red Cross has confirmed that the IDF is using white phosphorous (WP) shells in Gaza.

On detonation of these shells, WP burns at a very high temperature and is designed to illuminate targets at night. It is also used to generate smokescreens during daylight operations.

TV and still images from Gaza clearly show WP shells detonating – during daylight hours – at low altitudes over civilian buildings. Image analysis shows burning WP filaments striking rooftops and falling into densely populated streets and housing complexes.

For urban combat, smokescreens of this nature would not be considered useful by infantry units as they mask the firing positions of enemy combatants and inhibit precision targeting. This suggests that the WP shells may be designed to generate high-temperature airbursts as a weapon of area suppression to deny Hamas fighters freedom of movement.

The indiscriminate hailstorm effect of burning WP generated by such airbursts causes horrific burning to anyone caught in the open, and has an incendiary effect on civilian and commercial property. The use of WP shells in this manner would constitute a clear breach of international law.

Even without an immediate ceasefire, the IDF is under an obligation to organise or permit the evacuation of civilians from Gaza.

Under the fourth Geneva Convention, article 17 states explicitly that the belligerents in any conflict are obliged to secure “the removal from besieged or encircled areas, of wounded, sick, infirm, and aged persons, children and maternity cases”.

No such evacuation of Gaza has been organised by the IDF or negotiated by or facilitated by Hamas.

Article 15 of the fourth Geneva Convention states that “neutralised zones” ought to be established by warring parties into which civilians – particularly women, children and the infirm – can evacuate.

With the majority of IDF operations concentrated to the north of Gaza, such an evacuation corridor to the south could easily have been facilitated by the warring factions in the current conflict.

As recently as December 2004 – arguably under far worse combat stress – the US military facilitated the evacuation of 200,000 civilians from Fallujah in Iraq in the hours before its assaults on insurgents there.

The IDF and Hamas – whatever their stated war aims in Gaza – would appear to be equally culpable in abandoning their responsibilities to the hundreds of thousands of innocent Palestinians caught up in the fighting.

Dr Tom Clonan is The Irish Times security analyst. He also lectures at DIT school of media