Last week Lord Cameron, the Foreign Secretary, expressed his concern that Israel ‘may have breached international law’ in its three-month bombardment of Gaza. Two days later, at the International Court of Justice, South Africa’s lawyers presented their case accusing Israel of genocide.
The number of civilian casualties is indeed horrifically high. According to the ministry of health in Gaza on 9 January, more than 23,000 Palestinians had been reported killed since the start of the conflict. However, since the ministry is run by Hamas, that figure can’t be taken at face value. Indeed, it’s a practical certainty that it contains Hamas combatants – according to one reckoning, as many as 8,500. Still, when all the relevant qualifications have been made, the suffering of civilians in Gaza remains appalling in kind and massive in scale.
But is that sufficient to make it immoral or illegal? Most people in the West – or at least its English-speaking parts – think that the war to defeat genocidal Nazism in 1939-45 was morally justified. And yet Allied warfare inflicted huge costs upon civilians. One conservative estimate has it that British and American bombers killed more than 350,000 non-combatants in Germany. Air raids over France are supposed to have killed 70,000 French civilians – 30,000 during the crucial Normandy campaign alone.
Civilian suffering on a large scale is, by itself, no more a sign of genocide than it is of military disproportion
Anyone unaware of the human cost of defeating Hitler should read James Holland’s latest book, The Savage Storm, which chronicles 12 months (1943) of that five-year war in one place (Italy). Old men, women and children suffered grievously from the Allied invasion, torn apart by bombs and shells, exposed to the wintry elements by the destruction of their homes and starved of food and water. The British and Americans had no desire to inflict such suffering; they were often horrified by the effects of their warfare, and they sought to provide relief where they could. But their overriding priority was military victory over the Nazis.
They could have chosen tactics that would have reduced the risk to civilians. In Italy in 1943, as in Normandy the following year, the Allies relied very heavily on bombing and artillery, so as to preserve the lives of combat soldiers at the front. Had they abandoned that tactic, fewer non-combatants would have died, but victory would have been jeopardised. By the end of the year, instead of the more than three-to-one numerical superiority standardly necessary for success, the invading Allies could often muster only one attacker for every German defender. And the British were beginning to run out of manpower altogether.
The dreadful truth is that the prosecution of war almost invariably involves civilian casualties, usually lots of them. And when there are sufficiently compelling reasons for fighting, those casualties may be – tragically – justified. That’s why the laws of war do not forbid the killing of non-combatants as such; they only forbid their intentional and disproportionate killing. That’s to say, the objective must be a military one, and the harm done to civilians incidental to the military purpose and no greater than necessary for it. While this principle of ‘distinction’ does limit the costs imposed on non-combatants, it can still permit very high costs indeed.
On 7 October, Hamas tore up the laws of war by deliberately targeting Israeli civilians and unleashing upon them a frenzy of sadistic violence. That violence was so unrestrained as to imply a fully genocidal intent, not merely to destroy the ‘Zionist’ state of Israel but also to exterminate the Jewish people. In response to such an attack, Israel was fully justified in taking up arms to uproot its malevolent cause. That the process of this uprooting involves so much Palestinian suffering is due first and foremost to Hamas’s cynical use of civilian residences, schools and hospitals as human shields – again, in defiance of international law.
In contrast, the Israel Defence Forces are normally scrupulous in their choice of military targets and their minimisation of risk to civilians. And they have a technological capacity for precision in targeting that wasn’t available to the British and Americans 80 years ago. Nevertheless, it is quite right that the IDF’s actions should be scrutinised for evidence that they are imposing harm on non-combatants ‘disproportionate’ to – that is, unnecessary for achieving –the intended military objectives. To establish disproportion, however, would require specialist military expertise and a close knowledge of the facts on the ground. Humanitarian anguish is not enough.
As for genocide, Article 2 of the 1948 UN Convention prohibits only the ‘intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’. For the South African lawyers to succeed in their case, they must demonstrate that Israel is inflicting civilian casualties in Gaza, not inadvertently as the side-effect of destroying Hamas, but intentionally in order to destroy the Palestinian people as such. Proving genocidal intent would be much more straightforward in Hamas’s case than in Israel’s. Appalling civilian suffering on a large scale is, by itself, no more a sure sign of genocide than it is of military disproportion.
When it comes to the rights and wrongs of war, there are only three basic options. The first is to decide that waging war is never justified, in which case no casualties of any kind are morally acceptable. The second is to decide that war-waging can be justified, provided no risks at all are taken with civilian lives, in which case just causes will probably be lost. Either way, we’d have to prepare to live in a world dominated by the unscrupulous likes of Hamas and Vladimir Putin.
If that’s not tolerable, then the only remaining option is to decide that war should be waged on condition that harm to non-combatants is unintended and proportionate. But that would require us to face up to the tragic fact that very terrible civilian suffering can be justified, morally and legally.