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Ray Harris is a frequent contributor to this website. He has written articles on 9/11, boomeritis, the Iraq war and Third Way politics. Since 2007 he took to writing his novels Navaratri, Wild Child and Eden. Harris lives in Ballarat, Victoria, Australia.

The Hypocrites

Part Two: International Humanitarian Law

Ray Harris

An appeal to International Humanitarian Law (IHL) is a common rhetorical tool. It is perfectly valid when discussing specific violations, but all too often it is used selectively for partisan purposes.

Violations by one side are highlighted whilst violations by the other are ignored or minimised.

In many cases IHL is confused with personal moral or ideological principles. It is made to argue things that it does not actually argue. Some of this is based on a fundamental misunderstanding of IHL.

In other cases people who otherwise do not actually believe in IHL nonetheless cite it to make a partisan point.

International Humanitarian Law applies to all, equally

There is a principle under Western law that everyone is treated equally. It is more of an ideal that is constantly tested in practice. One of the most significant imbalances is access to the funds necessary to pay legal fees. In the more progressive liberal democracies the state sets aside funds to provide legal representation to those who cannot afford legal fees. In the more unequal societies there is little assistance. In the US for instance, the wealthy can simply bankrupt their opponents through lengthy and expensive legal proceedings, a tactic notoriously employed by Donald Trump. In autocratic societies such as Russia and China, the state can often dictate the outcome of a trial.

Fortunately the judicial bodies that decide on matters of IHL generally do apply the principle of equality before the law - much to the annoyance of those who have already decided who is guilty due to their ideological bias.

A good example is the International Criminal Court (ICC) applications for arrest warrants in the situation in the State of Palestine. These warrants listed three Hamas leaders, Yahya Sinwar, Mohammed al-Masri and Ismail Haniyeh, as well as the Israeli Prime Minister, Benjamin Netanyahu and Minister of Defence, Yoav Gallant. The application meticulously lists each of the alleged crimes committed.

It is worth noting that the ICC has also issued arrest warrants for six Russian officials: President Vladimir Putin, Commissioner for Children's Rights, Maria Lvova-Belova, Admiral Viktor Sokolov, Lieutenant General Sergei Kobylash, Defence Minister, Sergei Shoigu and Chief of General Staff, Valery Gerasimov.

So far no Ukrainians have been indicted.

An example of completely misunderstanding IHL

This one is curtesy of Joseph Dillard, a serial offender.

In his essay What is an Integral Approach to Gaza he writes:

“…state occupiers do not have the legal right to defend themselves from the non-state, occupied actors, as is the case of the relationship between Israel and Palestinians, including Hamas.”

He could not be more wrong.

Here he is deliberately misreading the right to resist principle.

Whilst it certainly exists, it is constrained by the principles of IHL in general. This includes the constraints of necessity, proportionality and discrimination between civilians and combatants.

Whilst I have covered this in my essays Against Political Violence and Strange Bedfellows it is worth repeating.

The attack by Hamas on Oct 7th was not a legal act of resistance. For it to be legal under IHL it must target the occupying power and/or its agents, in this case, the Israeli government and the enforcing agencies.

The Hamas attack was an attack against civilians, some of whom were not even Israeli citizens, for the illegal purpose of capturing hostages.

The entire operation from conception to execution was illegal under IHL.

And as such, Israel had every right under IHL to retrieve the hostages and to arrest the perpetrators.

To drive home the point, the ICC could not have issued arrest warrants for Sinwar, al-Masri and Haniyeh if no crimes had been committed.

Needless to say that in seeking to rescue hostages and arrest the perpetrators, Israel (like all police forces) had to act within the law and the ICC would not have issued arrest warrants against Netanyahu and Gallant if Israel had done so.

A question to ask at this point is if it was not Israel's place to rescue the hostages and arrest the perpetrators, then whose responsibility was it? This exposes the problem with IHL and its judicial mechanisms such as the ICC and ICJ, and that is the lack of an effective police force, a point I will return to below.

As it stands, neither Israel nor Hamas recognise the ICC and so it has no jurisdiction anyway.

Ongoing criminal acts

Hamas and Israel's contraventions of IHL continued long after Oct 7th. Whilst much has been said about Israel's actions in the war that followed, little has been said about the ongoing atrocities committed by Hamas, Islamic Jihad and others; against the hostages, but also against its own people, and yes, against the IDF.

Currently the IDF is facing around 50 cases against its members in domestic courts around the world. Australia recently strongly objected to the IDF's refusal to proceed with a criminal investigation into the death of Australian aid worker Zomi Franckom, who was killed along with six other World Central Kitchen aid workers.

This is appalling. All war crimes should be independently investigated.

But at least Israel opened an investigation even if they didn't follow through. What people ignore is that Hamas does not even bother to investigate allegations of war crimes committed by its fighters. War criminals are likely to be glorified as martyrs and their families compensated. I mean, have you heard of a single example of Hamas charging one of its own for breaches of IHL?

So we have the detail of the 50 cases against Israel, but what about the many crimes committed by Hamas, Islamic Jihad and assorted others?

Under IHL combatants must keep seperate from civilians. They must be easily identified through the wearing of uniforms, visible insignia or the open carrying of weapons. Adopting civilian clothes and hiding amongst the civilian population is a war crime classified as the crime of perfidy.

It is a crime to use civilian infrastructure for military purposes: schools, hospitals, ambulances, public buildings and especially civilian homes - see protected property. Hamas constructed an extensive tunnel system under civilian infrastructure. When combatants use protected property for military purposes, it ceases to be protected and becomes a legitimate target.

It is a crime to hide amongst the civilian population. This contravenes the prohibitions against using human shields.

It is a crime to take and hold hostages.

Hamas failed to uphold the conventions regarding the holding of hostages as prisoners of war.

It is a crime to torture or execute prisoners of war or alleged collaborators without a fair trial. This is the crime of Extrajudicial execution.

One of the charges the ICC made against Netanyahu and Gallant is the crime of using starvation as a weapon of war. I clearly remember the extensive coverage given to the food crisis in Gaza and the appeals for aid. What was rarely mentioned was another war crime that contributed to the aid crisis in Gaza and that is the crime of pillage. Hamas is known to have appropriated aid intended to be distributed freely to the population and handed it to the black market where it was sold at inflated prices. If you were connected to Hamas you got enough food and medicine. If you weren't connected you could miss out.

There is no more emotional issue than the deliberate targeting of children in war and Israeli snipers have been accused of targeting Gazan children. IHL is quite clear that children must be protected. Whatever the truth is regarding IDF snipers, it is known that Hamas did not spare children. 40 were killed in the raid and 36 were abducted and held as hostages. But Hamas is also guilty of crimes against its own children. It is guilty of the crime of indoctrination. The crime of exploiting child labour in the construction of the tunnel system. And the crime of recruiting children for combat roles, especially as spotters and runners.

Had Hamas, as the governing body in Gaza, fulfilled its obligations under IHL, the civilian death toll would have been much lower.

The Gazan political analyst, Ahmed Fouad Al-Khatib, who has first hand experience of living under Hamas has written and talked extensively about the conflict. In this video interview he explores the theme of his recently published book, Hamas and its Two Million Hostages. I realise that some will accuse him of being pro-Israeli. He is not. He is a Palestinian moderate.

None of this absolves the Israeli government of its obligations.

The weak and the strong

A common complaint from the pro-Palestinian side is that the Palestinians are the weaker and that this somehow justifies their actions.

It doesn't.

In his essay Simplifying the Israel/Palestine Conflict, Joseph Dillard outlines the equivalence argument:

“The reality is that Israel and Palestine/Hamas are nowhere near equivalent in force. Israel enjoys the full support of the US government as well as considerable support from the governments of the EU. Palestine and Hamas do not.”

This is a purely emotive argument based around the bully/victim stereotype.

And it is wholly irrelevant. The obligation to adhere to IHL is not contingent on the relative strength of the combatant forces. It is entirely possible for a weaker party to act illegally against the stronger with the stronger fully justified in retaliating.

There are two objections to this naive view.

The first is that lesser powers naturally seek alliances with great powers. This is fundamental to the realist school of international relations.

It ignores history.

On the eve of the Israel's independence in 48, it was attacked by five Arab armies. It was attacked again in 67 by three Arab armies supported by the Soviet Union. Israel did not gain military superiority until after 67. Given this history it is inevitable that Israel would seek a security partnership with a great power. It would be suicidal not to. (It is worth noting that Israel survived the 48 war because it received ex-Soviet weapons from Czechoslovakia with Stalin's approval.)

This argument can be stripped down to one essential objection. Israel is allied with the wrong superpower, the US.

The numbers game

The death toll in the Gaza conflict is shocking. As I write this the death toll is estimated to be around 76,000. Even more shocking is the extent of destruction with an estimated 81% of all buildings damaged or destroyed. Images show a distressing hellscape.

It is hardly surprising that people are appalled by such death and destruction and react emotionally with anger, sadness, and a need to blame.

As hard as it may be to understand, the total death toll is irrelevant under IHL.

“…neither IHL nor the Rome Statute of the International Criminal Court (ICC) recognizes any numerical ratio as establishing illegality, culpability, or moral violation. Aggregate figures may warrant scrutiny or prompt further investigation, but they do not function as legal or ethical benchmarks in their own right.”

There are a set of cold, technical calculations that determine the tactical and strategic success of any military operation, especially in regard to the principles of necessity, proportionality and discrimination.

One such calculation is the civilian to combatant ratio. The numbers regarding Gaza are in dispute. One of the difficulties has been ascertaining the number of combatant deaths, which have not been included in the data released by the Gaza Ministry of Health. This leaves independent experts to guess. Of course, it serves a propaganda purpose for Hamas to minimise the number of combatant deaths, just as it is to Israel's advantage to maximise the number.

The independent analyst Andrew Fox, who completed an in-depth examination of the available data, has suggested the ratio for the Gaza conflict is between 1.4:1 and 3:1. This compares favourably to similar combat scenarios, namely urban warfare in densely populated areas. See both his extensive original report Tactical Lessons from Gaza and his response to a critique by Milburn On the Rocks: a rebuttal.

Here I want to note again, that the indicted war criminal, Yahya Sinwar, declared that the death of 100,000 civilians, including children, would be an acceptable sacrifice. The actual civilian death toll is currently well below that number.

Applying IHL to the larger I/P conflict

There is an ugly truth to the larger conflict. The Palestinians have never abided by IHL. Over the length of the conflict their primary target has been Jews in general with no attempt to distinguish between civilians or Zionists. The massacres of Hebron and Safed in 29 targeted long established Jewish communities. Children, women and the elderly and infirm were not spared.

The same with the many terrorist attacks, suicide bombings and rockets fired from Gaza over the decades. All indiscriminate and all war crimes under IHL.

A note on the Russia/Ukraine conflict

As I mentioned above the ICC has indicted six Russian officials, including President Putin, for war crimes.

As the war continues Russia commits more war crimes. Since it began around 16,800 Ukrainian civilians have been killed, many from the deliberate targeting of apartment complexes. The ICC has opened an official investigation into the Situation in Ukraine.

The doctrine of realism and IHL

There can be no greater example of hypocrisy than citing the offensive realism of John Mearsheimer to justify Russia's illegal invasion of Ukraine and then pivoting 180 to use IHL to criticise Israel.

The reason is simple. As I explain in my essay International Relations Theory realism believes that ultimately might equals right. As Mearsheimer himself explains in this debate:

“And I am a Hobbesian. Hobbes talks about the state of nature; I talk about anarchy. They're synonymous. He talks about individuals in the state of nature; I talk about states in anarchy. And my basic argument is that when you don't have a higher authority you cannot be certain about the intentions of individuals in Hobbes' case and states in my case. When you encounter somebody very powerful, you have no choice to privilege survival and the balance of power, and that causes you to violate international law.”

I want to repeat part of that last sentence. “When you encounter somebody very powerful, you have no choice [but] to privilege survival and the balance of power, and that causes you to violate international law.”

This perfectly explains Israeli foreign policy. It privileges survival and seeks the necessary power to achieve that goal regardless of IHL.

The same applies to the Palestinians.

This means that if you appeal to the doctrine of realism, to be logically coherent, you must apply the principle consistently. You cannot argue that the Palestinians are not required to follow IHL, but the Israelis must.

Unfortunately this reduces the Israeli/Palestine conflict to a contest of power, a contest the Israelis have consistently mastered.

And again, to be a coherent realist, wouldn't the argument that Russia had no choice also apply to Israel?

A core confusion

As I have explained in my other essays, the Marxist position mistrusts IHL as a bourgeois construct. It also supports the use of violence to achieve its revolutionary aims. That is why so many on the Campist left make excuses for political violence. The 'oppressed' are allowed to fight back using any means necessary, even if that includes killing children.

Again, if you are to be consistent in this position, you have no need to appeal to IHL. The end justifies the means.

Despite this there seems to be some confusion amongst Campists concerning what they call the 'rules-based order', which they identify as the US rules-based order.

Our serial offender, Joseph Dillard makes these confusing statements in 'Simplifying the Israel/Palestine Conflict': ”…the 'rules-based order' concocted by the US but never defined…”

And in the section where he offers a solution he suggests:

“Drop back down to law, in this case, international law. Demand the end of the 'rules-based order', which is simply an avoidance strategy to maintain non-accountability before the law. Demand that the ICC and ICJ have jurisdiction over all nations. Demand that the UN General Assembly have the right to overrule single vetoes in the UN Security Council on issues that involve genocide, apartheid, or ethnic cleansing.”

Does he not understand that the international law he refers to is precisely what is meant by the rules-based order. The body of laws known as IHL are the rules. The UN is one of the key bodies in this order, along with the IMF, World Bank and a host of other treaty organisations that cover trade, air travel, the seas, even the Antarctic.

The real Campist complaint is that this order allegedly favours the West, or more specifically, capitalism.

His suggestion that we 'demand' that the ICC and ICJ have jurisdiction over all nations is truly bizarre. How might anyone force nations to abide by ICC and ICJ judgments? As Mearsheimer suggests above, realism says that states will ignore IHL when they feel sufficiently threatened. Here is it important to note that amongst the major powers that have not signed up to the ICC are Russia, China, and of course, the US.

Which countries have defied ICJ rulings? The US, Russia, Israel, Iran and Albania.

Russia is a serial offender. It has defied three ICJ rulings.

1. The ICJ demand that it suspend all hostilities against Ukraine.
2. The ICJ also ruled against Russia in relation to the financing of terrorism.
3. Again against Russia in regard to allegations of genocide.

And the country with the record for issuing the most vetoes on the UN Security Council? Russia with 130 - compared to the US with 89.

How might the UNSC, ICC or ICJ enforce their rulings against the great powers?

Unless they can garner a greater power, they can't. This is why IHL requires the cooperation of the great powers.

Final words

It's simple really.

If you are going to appeal to IHL, apply it consistently to all parties.

If you are going to appeal to realist doctrine, apply it consistently and acknowledge that IHL can be ignored at will.

If you are going to appeal to Marxism, apply it consistently and reject IHL as an illegitimate bourgeois construct.