Israel sets a bad precedent for future wars

The twentieth century witnessed a number of savage wars and historians have estimated that well over 100 million people (mostly civilians) died in the two global wars, but also the myriad of regional and internal conflicts that marred the period from 1912 (when the first Balkan conflict broke out) to 1999 (when NATO intervened in Kosovo). Yet, because of the industrial scale of killing, facilitated by mechanised and mass produced weapons, and the deliberate targeting of civilians in attempts to eradicate entire cultures and countries, statesmen and diplomats also came together in efforts to regulate warfare and to impose norms and constraints on what belligerents were permitted to do and not permitted to do. Although the Kellogg-Briand Pact of 1928 to outlaw war as an instrument of national policy was doomed to be unrealistic, it was still signed by 62 countries. Other diplomatic endeavours produced a whole host of specific agreements that together have been codified as the international law of armed conflict. For instance, the Geneva Protocol of 1925 banned the use of chemical weapons, the Nansen Passport (named after the great Norwegian Arctic explorer) facilitated the resettlement of war refugees and conventions were agreed in the League of Nations to prevent the mass and indiscriminate bombing of civilians from the air. The various Geneva Conventions had already laid down rules for the treatment of prisoners of war. The idea was to spare not only combatants from unnecessary violence and suffering, but also civilians who could not be expected to face starvation, displacement or even annihilation on a massive scale simply because their governments, willingly or otherwise, had decided to take up arms against each other. A German pensioner living in a small village outside Hamburg in 1944 could not be expected to bear the same guilt or be exposed to the same retaliation as a Nazi SS commander directing military operations from a bunker.

Diplomats negotiating these norms and constraints knew full well that dictatorships would undoubtedly violate them. But they also understood that having these international yardsticks would, at a minimum, provide a reliable basis on which to judge the behaviour of belligerents in wartime and to hold them to account when the opportunity finally presented itself. The Nuremberg trials of the Nazi leadership in 1946 was a case in point. Of course, the system of implementing justice was far from perfect (Stalin’s Soviet Union should have been in the dock too if only for its massacre of 12,000 Polish army officers in the Katyn forest in 1940); but an imperfect system is always better than the law of the jungle. Moreover, there was also the hope that democracies would agree to abide by the standards of the law of armed conflict and set the example. This would in turn make it easier for those democracies to pursue the transgressors and violators, for instance, today using the procedures of the International Criminal Tribunal for the indictment of war criminals. Over time, as the rules were respected, violators made to pay and compensation provided to the victims, the law as simple punishment post facto would give way to the law as warning and deterrent. At least this was the theory – and the hope.

Yet, we are now a quarter of our way through the 21st century and it is fairly obvious that the progress that we seemed to be making in the protection of civilians towards the end of the last century (through, for instance, the war crimes trials concerning the former Yugoslavia, the UN doctrine of the Responsibility to Protect adopted in 2005 and the NATO intervention in Libya in 2011) is fast unravelling. Moreover, it is a democracy- Israel- which is currently setting the bad example and refusing to acknowledge any of the excesses that it is responsible for. Except in a few isolated cases when the international pressure has been so persistent and the evidence against it has been so overwhelming that it has been forced to own up and discharge from service some of the perpetrators. The unprovoked shooting of a number of medics driving at night and in a clearly marked convoy of ambulances to assist wounded Palestinians is a case in point.

These past two weeks have provided more glaring examples of where the Gaza conflict is breaking the norms in three critical areas: the protection of civilians from direct attacks, the provision of vital humanitarian aid and the illegal possession of land in order to displace civilians and acquire their living space and resources.

First, the targeting of civilians. Last week, the media reported on Israeli strikes against Gaza in which scores of Palestinians living in tents or makeshift shelters had been killed. In one case, an extended family had been wiped out. One boy lost nine of his siblings and had arms and legs amputated. The effect of the blast pointed to longer term brain damage as well and undoubtedly trauma from the extent of the explosion. The only other surviving family member, the boy’s father, suffered even more severe injuries and was not expected to survive. Interviewed by the BBC, a spokesman for Israel’s prime minister, Benjamin Netanyahu, trotted out the standard Israeli government line. He expressed perfunctory regret for the “tragic” death of civilians (mainly children who represent a quarter of the Palestinian civilian casualties) but then immediately put the blame on Hamas for the tragedy, saying that Hamas had started the war by attacking Israel on 7 October 2023, and that Hamas posed the greatest threat to Palestinian civilians by cynically using them as human shields. Although there was no evidence in this case that this particular family was connected to Hamas or that they had pitched their tent to hide the entrance to a Hamas tunnel or command post. The spokesman said that Israel only targeted Hamas fighters and suggested that if this was the goal the “collateral damage” of the death of numerous civilians was somehow inevitable or even acceptable. We have no information or proof that any Hamas fighters were actually struck in this Israeli strike, only the undeniable reality of the eradication of an entire family. So we are asked to give the benefit of the doubt and take everything on trust. The spokesman went on to suggest that it was even the family’s fault for not heeding (fast enough) Israeli warnings to relocate to other areas of Gaza, as if this were something that impoverished Palestinian families, with their homes and livelihoods destroyed by the bombing and already displaced several times from north to south and back since Israel’s campaign began 18 months ago are able to do at the drop of a hat. Some families have been hit multiple times in different locations. Palestinians are already forced to huddle in ever smaller pockets of tiny Gaza, putting intolerable strain on aid delivery, life support systems and medical facilities. Pressed politely but insistently by one BBC interviewer I tuned in to, the spokesman in question tried more desperate diversionary tactics. He accused the BBC of being “the agent of Hamas” by talking about the actions of Israel rather than the much more significant crimes of Hamas. By trying to undermine the legitimacy of the BBC to report on the killing of this one particular family, he tried to play down the killings themselves as if they were a media manipulation.

The entire effect was to suggest that Israel, believing that it is pursuing a just cause of legitimate self-defence, wants to load all the negative results of conflict entirely on to its opponent and give itself a blank cheque to do whatever it wants. Even the side responsible for the greater death toll (55,000 Palestinians killed versus 1,200 Israelis) wants to present itself as the eternal victim and to suggest that all criticism of its actions is misguided, unjustified or outright anti-Israel and hostile. This said, the spokesman did say that the Israeli Defence Forces would carry out an investigation into the killing of the family but without indicating a timeframe or a sense of urgency. Offering an investigation seemed an easy way out of not addressing or showing a willingness to admit or grapple with the more fundamental ethical and legal issues in Israeli targeting policy. How are “Hamas targets” selected? Does Israel take possible harm to civilians into account? How valuable does the Hamas target need to be to justify the greater risk of harm to innocent civilians? How probable is the likelihood of success vis-à-vis the risk ? What size of bomb or munition is chosen to minimise (rather than maximise) the area of destruction and the associated “collateral damage?”. How good and reliable is the intelligence? Who takes the strike decisions (and thus, the ultimate responsibility) in the Israeli command structure and according to which precise criteria for detailed planning and assessment? Do Israeli commanders provide adequate warning to civilian populations and do they calculate the wider humanitarian consequences for the already endangered civilian population of their strikes against Hamas? With the war on Gaza now having gone on for nearly two years and the mounting death toll among the civilian population proportionally to the number of Hamas fighters killed, it is high time for Israel to publicly set out in detail its targeting policy and decision making cycle for individual strikes, rather than refuse to answer questions honestly and repeat ad nauseam that it is only targeting Hamas and is therefore always in the right.

After all, Western democracies have had to explain their targeting policy and rules of engagement repeatedly in the past in order to sustain political and public support for their interventions. This happened to NATO during its Kosovo air campaign from March to June 1999 when the alliance came under intense media pressure following the accidental killing of civilians in a tractor convoy (mistaken from the air as a military formation) and the bombing of a train on a bridge, not to speak of the bombing of the Chinese embassy in Belgrade. The alliance was obliged to arrange a number of press briefings on its targeting policy where senior military commanders faced strenuous questioning. A similar situation occurred in Iraq after the US invasion of 2003 and the lack of serious US preparation for the post-war governance and humanitarian relief. The US’ targeting policy also was criticised in the wake of the killing of journalists by a US military helicopter pilot. More recently, the Western military operations in Afghanistan have thrown up instances of the killing of captured Taliban fighters and of Afghan civilians, as well as poor training and tactics by soldiers in the International Security Assistance Force (ISAF) in dealing with local social and religious customs. The UK justice system is currently investigating a number of British special forces personnel accused of illegal killings, including by their fellow soldiers, a case that the BBC has reported on extensively. Yet, the UK Ministry of Defence is clear that the law must follow its course and that war does not make every military action legal or excusable. Rules are rules and individuals breaking those rules cannot hide behind their chain of command. If NATO countries have conducted serious investigations, taken legal steps where appropriate and faced up squarely to the complex ethical and procedural issues involved, there is no reason why a modern democratic state like Israel with an enormous military establishment but robust legal system cannot do the same. There is also the question of ends and means. Israel says that its aim is the elimination of Hamas. But what is the exact criterion of assessing the achievement of this objective vis-à-vis the mounting costs? Is it necessary to kill every Hamas fighter or, even more problematic, every possible future Hamas recruit, given that Israel’s actions have undoubtedly radicalised a whole generation of Palestinians? By this standard, Israel would need to be at war with the Palestinians permanently, or at least until they stop existing as a people in a given geographical or political space. Apart from the ethical considerations behind such a policy, being perpetually at war with an alien people rather than a certain group of leaders in a terrorist organisation is hardly conducive to Israel’s future stability, prosperity or survival as a democratic state. So manifestly, Israel needs to use a more practical and realistic rationale to judge Hamas’s eradication as the dominant force in Gaza, such as the decimation of its leadership, command structure, weapons stocks or financing. Punishing a civilian population that never voted for Hamas in the first place and has largely turned against it (as recent anti-Hamas demonstrations in Gaza have shown) is a recipe to create the conditions in which Hamas will eventually re-emerge. That is why Israel’s key interest is in returning to a ceasefire so that it can consolidate its political gains, provide serious humanitarian aid to the people of Gaza and rebuild its fractured international support. It is at least encouraging that Netanyahu now seems prepared to accept the new ceasefire proposal put forward by President Trump’s special envoy, Steve Witkoff.

The second concern is in the delivery of humanitarian aid to Gaza which continues at a trickle- far short of what the beleaguered Palestinians require. Tom Fletcher, the former British diplomat who serves as the UN Undersecretary for Humanitarian Affairs and is not known for hyperbole, even told the UN Security Council that there was the distinct possibility of genocide being committed in Gaza. International law stresses two core principles: that humanitarian aid to civilian populations should flow freely and in sufficient quantities as the occupying power assumes responsibility for the welfare of the populations under its control. And that humanitarian aid not be used or diverted for political ends, such as forcing civilians to displace permanently or to reward one group at the expense of the other. Yet, Israel’s approach to humanitarian aid has been frequently criticised as violating both these principles. For instance, its blocking of the activities of UNRWA, the UN agency responsible for the Palestinians, after Israel claimed that some of the UNRWA staff were involved in the 7 October attack (albeit a very small number compared to the thousands of UNRWA employees). Again, Israel puts the blame on Hamas, arguing that it seizes the aid trucks for its own fighters and own ends, including the control of the Palestinian population dependent on its distribution system. Israeli security checks at the few border crossings in operation have held up the movement of aid trucks. The mounting hunger and desperation of the Palestinians means that aid is looted before the World Food Programme and NGOs still present in Gaza can set up disciplined and organised disruption networks that ensure that those defenceless people without guns who need the aid most actually receive it or flour can be delivered to bakeries. The latest Israeli initiative to address the catastrophic aid situation is to work with the US to operate a “ Gaza Humanitarian Foundation” run by private US contractors. It has opened in Rafah right in the southern tip of Gaza forcing Palestinian civilians to walk long distances to this particular distribution centre whereas at least 20 across Gaza would be required. Two more are planned in central Gaza. The suspicion is that Israel wants to control the identities of those Palestinians who receive the aid as well as to force the population to move to the south, from where they could be more easily transferred to the Egyptian Sinai leaving Gaza to be repopulated by Israeli settlers (or Trump beach resorts). Yet, this Rafah distribution system has collapsed before it has even begun due to rioting and violence at a World Food Programme warehouse, killing two people. The less aid there is available, the higher the black market prices and potential profits, and the more likely therefore that criminal gangs will move in to steal the aid and resell it. Punishment of the Gaza population for the crimes of Hamas serves no military purpose unless the real objective is to make life so intolerable inside Gaza that the Palestinians start to abandon the strip altogether and move to Egypt, Jordan or Lebanon or scatter more widely across the Middle East, as they did after the 1948 war leading to the founding of the Israeli state. Starvation as a weapon of war is hardly a new tactic. The British naval blockade of Germany during the First World War forced millions of hungry Germans into the bitter “Turnip Winter” of 1917 and worried German generals like Hindenberg and Ludendorff that the home front would collapse before the German army was able to vanquish its foes. In the Second World War, Hitler and Hans Frank’s plan for Poland to squeeze the Poles into a General Government and starve them so that Poland’s agricultural resources could be used to feed millions of German settlers. But hunger as a war weapon is unworthy of a modern, democratic state associating with the West like Israel. Using food as a weapon is classified as a war crime and disputes over the precise numbers for the number of children who could die within 48 hours of starvation if aid is not allowed in to Gaza should not be used to discredit the UN warnings nor the reports coming from the humanitarian community more generally.

Finally, seizing other peoples’ land is not a recipe for lasting peace or harmonious relations with one’s neighbours either. This week, Israel has announced that it will build 22 new settlements on the West Bank and legalise 9 existing settlements which Israeli courts (and many foreign governments) had deemed illegal. This is the biggest expansion of settlements in decades and the Palestinian President, Mahmoud Abbas, has described it as a “significant escalation”. What is noteworthy about the new settlements is that they are strategically located in remote areas across the entire West Bank, which would force the Palestinian farmers and their families to move to ever smaller pockets. As Palestinian population centres are broken up and the population is scattered, it becomes ever harder to see what a Palestinian state could look like with no clear borders and no contiguous territory. Some will be reminded of the Vance-Owen Plan for Bosnia in the 1993-94 period, in which Bosnian Muslims would be relocated to scores of small villages connected by bridges and underground tunnels or specially guarded roads. This plan deserved the quick oblivion that it received from Western diplomats. It seems no coincidence that Israel has announced the 22 new West Bank settlements just a few days before a France and Saudi Arabia-led international conference on the two-state solution. Israel is clearly sending the message that whatever the discussions and aspirations coming out of Paris or Riyadh it is pre-empting the result by creating facts of its own on the ground. Beyond the clear consequences for international law of illegal landgrabs, the question is whether Israel is buying short-term security for itself at the price of increasing the hostility of the displaced Palestinians and its Arab neighbours. It is not promising for Israel’s future if nearly half its territory becomes illegally occupied land in Gaza, the West Bank, the Golan Heights and now potentially southern Lebanon and parts of southern Syria as well. Israel is obviously counting on the weakness of the Palestinians and the fatigue and indifference of its former and present Arab adversaries to impose progressively this new expansionist reality on the region. According to Sophocles and the Melian Dialogue, the strong do what they wish and the weak suffer what they must. Yet, a democratic and successful Israeli state increasingly built on multiple violations of international law and at the expense of the security and interests of so many of its neighbours (as well as Palestinians who do not leave but continue to live under Israeli occupation) is bound to make Israelis permanently nervous, sleeping with one eye open at night and having a foreign passport to hand in the top draw of their desks. The two-state solution, the rule of law based on a strong, independent judiciary at home, and relations with neighbours firmly rooted in international law and norms of behaviour would be harder to achieve but infinitely better for Israelis in the long run. Because many traumatised Israelis do not want to hear this message at the moment is all the more reason for Israel’s true friends (rather than allies of convenience) to keep repeating it to them.

At a time when Russia is attempting to annex 20% of Ukraine and Russify or drive out the Ukrainian population under occupation, or is cynically targeting civilians in Ukraine’s major cities or torturing Ukrainian prisoners of war, this is a bad moment for Israel to disregard the accepted laws of armed conflict and put democratic states on the same level as their authoritarian counterparts. Other states, like China eyeing Taiwan or Azerbaijan pushing ethnic Armenians out of Nagorno Karabakh, or India and Pakistan fencing in Kashmir may well conclude that the 21st century belongs to the strongman, and that norms and constraints for the protection of civilians in both war and peacetime no longer apply or need to be taken seriously. Yet, specific examples rather than general principles are frequently better at mobilising international responses and focusing attention on appropriate sanctions. The three cases discussed above – namely targeting of civilians, aid delivery and illegal land seizures- are ones that can and will most probably apply to every future conflict as belligerents take inspiration from the actions of their predecessors. So here, European governments concerned by developments in Gaza and the Israeli-Palestinian conflict more generally need to focus their messaging and actions. The EU has announced that it is reviewing the EU-Israel agreement although this legal and procedural process could drag on for months. Individual European states, including the UK, have made their concerns clear and frozen commercial deals and arms contracts. European NGOs and some political leaders have called for a broader arms embargo, but traditional supporters of Israel in the EU, such as Germany and Czechia, have opposed this measure. Some like Spain, Ireland and Norway have recognised Palestinian statehood while others are holding back to maintain their ties to the Israeli government and try to influence its behaviour more discreetly. Despite his indictment for war crimes by the ICC, Netanyahu is still welcome in some EU capitals as evidenced in his recent trip to Budapest. These differences make a common European policy towards Israel difficult. Netanyahu has reacted predictably to any threat of sanctions, calling the UK Prime Minister, Keir Starmer, an enemy of Israel and displaying his usual thin skin when it comes to criticism of Israel, even when it is of the most diplomatic and constructive kind. Netanyahu only sees unconditional supporters or inveterate opponents. Yet, European policy is not to drive Israel away and exclusively into the embrace of the pro-Israel camp in the US and among American Evangelicals. It has to be to engage all of Israeli society and make it look beyond its immediate traumas towards its longer term future and democratic foundations. The Jewish people, which historically has suffered more than any other from persecution, defamation and genocide, has a special role and responsibility to combat these injustices not only when they are perpetrated against Jews but other ethnic or religious groups and minorities as well. For respect of international law for one group is the best guarantee that it will protect other groups as well.

Because of its internal divisions, the EU will not develop a strategy on Israel anytime soon. Thus, the task is best left to those EU governments that do see eye to eye to move ahead bringing in key partners who have also taken a stand such as the UK and Norway, and Canada too. The advantage of a strategy is that it does not aim to produce immediate changes but rather to develop longer term leverage and instruments of influence. A European strategy needs to be in three parts. First, to make clear to Israel that Europe will have its back where the country’s legitimate security interests are at stake. For instance, from terrorism or the Iranian nuclear programme. Europe will supply Israel with the intelligence, technology and weapons for self-defence that it needs provided that these are not used against civilian targets and in violation of international law and norms. But second, that European governments will denounce and push back vociferously against the three key violations of norms set out in this article and have sanctions ready to impose, as with EU import bans in the past of products made in the West Bank settlements. Recognition of Palestinian statehood has to be linked to Israel’s willingness to recognise Palestinian rights. Finally, and as Norway did in years gone by with the Oslo Accords providing for a Palestinian national authority, Europeans need to engage the Israeli political class and civil society in a dialogue on Israel’s long team future, the health of its democracy and its role in a Middle East security framework. Israel is too wrapped up in day-to-day crisis management and has little notion how it will handle the Palestinians without Hamas as their government and representative, at least in Gaza. It has little idea how it can exit permanent warfare against a hated adversary and turn military strength into political stability and long-term security. Here, the Europeans can bring Israel together with moderate Palestinian voices and its Arab neighbours as Spain and France have been attempting to do by organising their recent international conferences. What Israelis need above all to grasp is that in violating international law and the laws of armed conflict they are not only ultimately undermining their own security but that of their partners and allies in the Western democracies as well. International law remains valid and sacrosanct even when circumstances change- maybe especially when those circumstances change.

The views expressed in this #CriticalThinking article reflect those of the author(s) and not of Friends of Europe.