A balancing act

With 'Operation Pillar of Cloud' underway, can 'Operation Pillar of Fire' be far behind?

By day the Lord went ahead of them in a pillar of cloud to guide them on their way and by night in a pillar of fire to give them light, so that they could travel by day or night. Neither the pillar of cloud by day nor the pillar of fire by night left its place in front of the people. Exodus 13:21-22.

The blogosphere is already full of incisive accounts and analysis of the bourgeois media's fabled balanced reportage, including Lenin, MediaLens, Asa Winstanley, Ali Abunimah, Maureen Clare Murphy, as well as of the cynical domestic political machinations that seem to have dictated the timing of the onslaught.

So I intend to take another slant on the question of balance.

In an article on the ABC's Drum yesterday, Alison Pert, who 'lectures in international law and the use of force at the University of Sydney' undertook to unravel 'this murky area of international law' regarding the assassination of Hamas military chief Ahmad al-Jabari. On the one hand,

the International Court of Justice, when considering the legality of the security barrier that Israel was (and is) building around the occupied territories,...clearly stated, albeit controversially, that the right of self-defence in international law is only open to a state defending itself against an attack from another state. It pointed out that the occupied territories, of which Gaza is a part, are exactly that - territory occupied by Israel and not another state.

Consequently Israel cannot use self-defence against attacks from the Gaza strip as a legal argument to justify its actions.

But on the other,

Israel argues that it has the right in international law to defend itself against terrorism: since 2001 some 13,000 rockets have landed in Israel, killing over a thousand Israelis and wounding thousands more, and a million more citizens live under the constant threat of rocket attack.

Parenthetically, it seems that numeracy is not a skill required of international law lecturers, because in reality, between 2001 and 15 November 2012, 7882 rockets fired from Gaza landed in Israel. But who wants to split hairs? If you add in the 4890 mortar shells, it comes to nearly 13 000. That said, it's hard to see how the 61 Israelis killed over the period suddenly became 'over a thousand' or the 1719 injured became 'thousands more'.

Not that it is of any conceivable interest, according to the UN Office for the Coordination of Humanitarian Affairs – occupied Palestinian territories (OCHAOPT) casualties database, between 1 January 2001 and 21 July 2012, 2998 in Gaza were killed and 4399 injured by Israeli fire, primarily by missiles, artillery and tank shells. I still haven't found a source that might reveal how many projectiles Israel actually lobbed into one of the most densely populated areas on the planet, but then, why would anybody want to know that?

The figures for Israeli casualties don't disaggregate civilian from combatant casualties, but the OCHA figures are explicitly related to 'Protection of civilians'. But that hardly matters because it transpires that the reason the International Court of Justice opinion Pert refers to is considered controversial is, for one thing, that the International Committee of the Red Cross has issued Interpretive guidanceon the notion of direct participation in hostilities underinternational humanitarian law by Dr Nils Melzer (also author of Targeted Killing in International Law (Oxford University Press, 2008)), which recommends

Civilians lose protection against direct attack for the duration of each specific act amounting to direct participation in hostilities .

In order to qualify as direct participation in hostilities, a specific act must meet the following cumulative criteria:

1. The act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm), and

2. there must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation), and

3. the act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus).

...individuals whose continuous function involves the preparation, execution, or command of acts or operations amounting to direct participation in hostilities are assuming a continuous combat function. [my emphasis]

Now you might think that on the basis of these recommendations, Palestinians would be justified in targeting, say, Benny Gantz, Israel's Chief of General Staff, ensconced in HaKirya, in the heart of Tel Aviv, or indeed, 'Defence' Minister, Ehud Barak. But no. According to the ICRC, 'Continuous combat function requires lasting integration into an organized armed group acting as the armed forces of a non-State party to an armed conflict.' [my emphasis] Gotcha!

Furthermore,

The Israeli Supreme Court agrees with the "unlawful combatant" view of terrorists, and the US appears to take the same approach in relation to the killing of Osama bin Laden and other senior Al Qaeda figures.

Pert concludes that because Israel and the ICRC's expert on justifying 'targeted assassination' disagree with the ICJ opinion, 'With the law so unclear in this area, perhaps it tilts in Israel's favour on this occasion.'

She is of course in good company. AsaKasher, respected professor of philosophy and linguistics at Tel Aviv University, believes that even 'a terrorist's neighbour' is not entitled to the protection traditionally accorded to noncombatants where there is any prospect of danger to 'a citizen in uniform'. 

On Wednesday, Mark C. Toner, Deputy Spokesperson of the US Department of State, issued a press statement.

We strongly condemn the barrage of rocket fire from Gaza into southern Israel, and we regret the death and injury of innocent Israeli and Palestinian civilians caused by the ensuing violence. There is no justification for the violence that Hamas and other terrorist organizations are employing against the people of Israel. We call on those responsible to stop these cowardly acts immediately. We support Israel’s right to defend itself, and we encourage Israel to continue to take every effort to avoid civilian casualties.

And just yesterday, Australian Prime Minister, Julia Gillard said,

The Government condemns the repeated rocket and mortar attacks on Israel from the Gaza Strip and calls on Hamas to cease these immediately.

Australia supports Israel’s right to defend itself against these indiscriminate attacks. Such attacks on Israel’s civilian population are utterly unacceptable.

Were it not so frightening, it would be hilarious that venal politicians, philosophers, experts in International Law™ and the responsible, objective media parade around taking so dispassionate a stance as to defend 'Israel’s right to defend itself' and condemn 'Hamas's avowed purpose to destroy Israel' while keeping shtum on Palestinians' right to defend themselves and Israel's absolutely explicit commitment to eradicate Hamas. But what's really terrifying is that anybody takes them seriously.