International law

Clare’s accusation of war crimes aimed at the wrong target

There’s no comparison between those who deliberately kill innocents as their goal and those who cause unavoidable civilian deaths when fighting their adversaries.

Education Minister Jason Clare. Photo: Facebook
Education Minister Jason Clare. Photo: Facebook

Education Minister Jason Clare recently accused Israel of breaching international law and committing war crimes in bombing hospitals and schools.

Hospitals aren’t protected if they’re used for non-hospital military purposes. If they are used for acts harmful to the enemy such as directing terrorist forces or storing arms and munitions they change from protected objects to military targets. In 2017, for example, US coalition airstrikes took out an Islamic State group headquarters located in a hospital in Mosul. Islamic State operatives had been using a building located within the hospital to oversee its operations in Iraq.

Apart from hospitals and schools, Hamas places its military infrastructure in houses, mosques, and businesses. It’s permissible to direct attacks toward these sites: by Hamas’ actions they’ve lost their civilian nature and so become legitimate military targets. But Israel is still required to fulfill its obligations toward Gaza’s civilians; the laws of war are binding even when the other side blatantly violates them.

Attacks on terror cells or terror bases inside of hospitals in Gaza are done only with the supervision of Israeli military legal advisors, and with careful assessments of possible civilian casualties and whether the military value of an attack would justify an attack and if so what kind of attack. The IDF’s Military Advocate General’s Office investigates questionable incidents. Compare Jason Clare’s response to that of White House and State Department who are conscious of this process and, with rare exceptions, don’t jump to conclusions.

Some hospitals have been damaged in fighting when Hamas launched attacks from them and the IDF responded in self-defence. This was the case with the Shifa Hospital where Israel took great care to leave it up damaged and after clearing it in search of hostages left it alone while ensuring supplies got in. Then Hamas occupied it with a large battalion size force and a fight ensued with this force being eliminated.

In some cases, there was damage when fighting took place in proximity to hospitals, again because Hamas was compromising them and operating from within them. In at least one case the hospital was damaged by an Islamic Jihad rocket misfire. Some hospitals have ceased to function due to loss of utility services and running out of diesel. Severe cases requiring high level sophisticated medical technical support are being evacuated to Israeli hospitals and elsewhere as occurred before the war.

Clare’s remarks echo the views of those that argue that Israel has been indiscriminate, resulting in a scale of civilian casualties that violates international law. The Hamas attack that began on 7 October triggered Israel’s right to use military force in self-defence. Deliberately attacking civilians is of course absolutely prohibited. But Israel isn’t targeting civilians. Gazan casualties have been incidental to the fight against Hamas but certain because of the deliberate approach Hamas and Islamic Jihad – and Hezbollah in Lebanon – have taken in preparing and conducting the war. They have constructed their facilities in and around vulnerable civilian centres and in the heart of densely populated areas, even right alongside seemingly unwitting UN monitoring bases, as we’ve just seen recently in Southern Lebanon.

Israel’s inherent right of self-defence doesn’t require a proportionality of harm between the aggressor and the defender. The measures taken must, however, be reasonably necessary to reduce the threat. In other words, the response must be proportional to the threat. But this isn’t about “tit-for-tat”: the express goal of Hamas is to annihilate Israel and kill as many Jews as possible as it does so. That was also the goal of its October 7 “Al Aqsa Flood” attack.

Even assuming some validity to the civilian death numbers provided by the Hamas controlled Ministry of Health in Gaza (the numbers don’t identify Hamas casualties, those killed by the regular misfires of Hamas rockets, those killed by Hamas looting supplies, or those executed by Hamas who it accuses of co-operating with the IDF), the fact that more civilians have been killed in Gaza than were killed in Israel on October 7 or since doesn’t indicate a disproportionate response. The victorious allies in World War Two would tell themselves they acted proportionately, including with their devastating strategic bombing campaign that lasted years and targeted German and Japanese cities and the civilian populations living in them – and their claims aren’t easily dismissed given the stakes of that war and the barbarity that was practiced by the Axis powers during it.

Professor John Spencer is chair of urban warfare studies at the Modern War Institute at West Point. He judges the ratio as one combatant to 1.5 civilians in the Gazan war and that given Hamas’s likely inflation of the death count, “the real figure could be closer to one to one. Either way, the number would be historically low for modern urban warfare”. That’s a remarkable result in an environment where Hamas exploits the presence of civilians to shield its vital assets.

Jason Clare – and perhaps much more importantly, Anthony Albanese, Richard Marles and Penny Wong – should answer the question of how they’d suggest Israel eliminate the threats it faces to return Israel’s 9.4 million people to a sense of physical security. And it would have been useful for Clare to have balanced his comments by denouncing Hamas’ recent execution of six Israelis held hostages since the October attacks, along with their announcement that this would be done when other remaining hostages were close to rescue. One of the most egregious violations of the laws of armed conflict is to murder captives.

Our government should understand there’s no comparison between those who deliberately kill innocents as their goal and those who cause unavoidable civilian deaths when fighting their adversaries while applying the rules of international humanitarian law deliberately and rigorously, knowing that their terrorist adversaries don’t even pretend to do so.

Dr Anthony Bergin is a senior fellow at Strategic Analysis Australia. A version of this article appears on the SAA website.

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