The Philosophy of War and The Tragedy of Ignoring Humanitarian Law in The Israel-Gaza Conflict

Be that as it may, war can be broadly defined as a condition of armed confrontation that arises between distinct nations or states, or among various factions within a nation or state. 

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Palestinian protesters are seen during clashes with Israeli soldiers near the fence of the Gaza-Israel border east of Gaza City, on Sept. 22, 2023. (Photo by Rizek Abdeljawad/Xinhua)

“So shall you hear

Of carnal, bloody, and unnatural acts

Of accidental judgments, casual slaughters

Of deaths put on by cunning and forced cause…”

Shakespeare, The Tragedy of Hamlet, Prince of Denmark ~ The Philosophy of Tragedy

Robert A. Kaplan, in his book The Tragic Mind: Fear, Fate and the Burden of Power starts by saying that his 40 years as a foreign correspondent has taught him that the understanding of any world event starts with geography and ends with Shakespeare.  Maps provide both the context and the geographic scenario and  explain the backdrop in which the activities occur. However,  the sensibility of political machinations and instincts of political leadership rest largely with Shakespearian tragedy. International politics is not anchored on predictive science but on insight, which is an aggregate of the map, civilizations, history and the individuals involved. Kaplan continues : “Many times when a leader of a powerful country makes a decision to launch a military attack, despite all the intelligence assessments on his or her desk, he or she is operating inside a fog of uncertainty about the intentions of the country’s adversaries”.  He makes a direct comparison of this view with Russia’s invasion of Ukraine saying that President Putin was “operating blind” on the eve of his invasion, partly because those under him feared an honest discussion with him. One wonders whether this would not also apply to what is going on now in the “war” between Israel and Gaza.

It is said that the beginning of human consciousness which realized that tragedy is the outcome of human action began when the ancient Greeks who realized that there was something inextricably and irremediably wrong with the world.  Shakespeare endorsed this when he said through the words of Marcellus, one of the guards on the night watch at Elsinore Castle, after the sightings of the ghost of King Hamlet who said “something is rotten in the state of Denmark”..

The underlying truth about tragedy is that things can often go wrong, bringing about unintended consequences. American classicist Edith Hamilton (1930) is reported to have said that tragedy is the beauty of intolerable truths. Kaplan relies upon the need for tragic sensibility, ascribed to leaders such as Abraham Lincoln who sought the greater good of ending the civil war, while his efforts had caused unenduring suffering to civilians in the South. In other words it is one aspect of consequentialism – working toward the greater good of many people even if one sacrifices the few .  Another example cited is President Franklin Roosevelt who provided Stalin – a mass murderer – with  military, arms and ammunition to overcome Hitler – another mass murderer.

Unless carefully thought through with a tragic mind that has foresight, spontaneous military attacks become a lamentable farce resulting in terrible loss of non-combatant civilian life.

The Humanitarian Crisis

Chatham House (The Royal Institute of International Affairs) held a webinar on Wednesday 11 October titled “The Israel Hamas War and its Fallout” which brought to bear a consensus of the panel of speakers  that the key questions were “what would the ultimate outcome of this carnage on both sides be”? and “what to do about Gaza after it has been pummeled”?  Sir John Jenkins – a seasoned diplomat who served inter alia in the Middle East as Ambassador for the United Kingdom – made the distinction between the traditional Middle East which has existed and the birth pangs of a “new” Middle East that was emerging (with the Abraham Accords and the anticipated security pact between the United States, Saudi Arabia and Israel, none of which involved the participation of representation from Gaza) and wondered how the new Middle East will play out.

Francesca Albanese, United Nations Rapporteur on Occupied Palestinian Territories  noted that Palestine had  been occupied for 56 years by Israel and that while the fundamental tenets of international law justified a State defending itself and its people, the same principle did not justify a State defending occupation of another land.  Ms. Albenese cited The Geneva Conventions For the Protection of War Victims,  chiefly outlined in Additional Protocol I to the Geneva Conventions, which was ratified in 1977 and is applicable to international armed conflicts and the principles that governed defensive retaliation by any State and the extent to which such a defense should be carried out so that civilians are not harmed.

 The first such principle is Proportionality which is often called the principle of proportionality.  This principle  establishes a crucial guideline in armed conflicts. It stipulates that when targeting a legitimate military objective, the harm expected to be inflicted on civilians or civilian assets should not be disproportionately greater than the direct and specific military advantage sought.

Fundamentally, the principle of proportionality demands a thoughtful equilibrium between accomplishing military aims and mitigating harm to civilians and their property. It imposes an obligation on those engaged in armed conflicts to contemplate the potential repercussions of their actions and to avoid actions or strategies that would lead to excessive harm to non-combatants and civilian infrastructure.

This principle of proportionality is a fundamental element of the rules governing armed conflict, as delineated in the Geneva Conventions and their Additional Protocols. Its purpose is to safeguard the rights and well-being of civilians who are not actively participating in hostilities and to uphold the humanitarian goals of international humanitarian law (IHL).

Another principle is Precaution which closely aligns with proportionality and mandates that parties to a conflict adopt all practicable measures to lessen harm to civilians and civilian assets, both before and during military actions. These precautions involve: Avoiding Unselective Strikes: Parties involved in the conflict must refrain from using tactics or means of warfare that cannot be precisely targeted at specific military objectives or are anticipated to cause considerable harm to civilians or civilian property; Deliberate Target Selection where military objectives should be meticulously chosen to mitigate the risk of harm to civilians and their assets; Advance Notification which requires that when circumstances allow, parties should provide advance warning to civilians and take necessary steps to shield them; Medical Care for the Injured where parties are obliged to make arrangements for the safeguarding and treatment of wounded and unwell combatants.

The Treaties protect civilians against all forms of violence, including murder, torture, and other inhuman treatment, as well as outrages upon personal dignity. Parties to the conflict are prohibited from taking hostages. This includes the requirement that any military strike should be carefully targeted away from areas inhabited by civilians.

These principles are devised to uphold the humanitarian dimensions of armed conflicts and mitigate avoidable suffering. Breaches of these principles may be classified as war crimes under international law.

It’s important to bear in mind that these principles are applicable to international armed conflicts, as described in Additional Protocol I to the Geneva Conventions. For non-international armed conflicts, which are not of an international nature, Common Article 3 of the Geneva Conventions still mandates the humane treatment of individuals not engaged in hostilities, though the specific provisions regarding proportionality and precaution found in Additional Protocol I do not apply in these instances.

Additionally, the total isolation of a territory that is being attacked, effectively precluding food water, medical services electricity, education is prohibited by Article 54 within the Fourth Geneva Convention which places a strong focus on safeguarding civilian assets, including vital items like food stores and essential infrastructure crucial for the survival of non-combatant populations. It explicitly forbids the intentional damage or utilization of these assets in ways that could harm civilians. Its overarching aim is to ensure the welfare and rights of civilians are preserved amidst the challenges of armed conflicts.

Withholding food, medical supplies, and vital necessities from civilians is recognized as a breach of established customary international humanitarian law. Deliberate acts of this nature may be categorized as war crimes under customary law.

It is crucial to emphasize that the deliberate obstruction of access to food and medical provisions to civilians as a tactical approach in armed conflict represents a grave violation of international humanitarian law. This misconduct can result in legal repercussions, including potential prosecution before international tribunals or national courts for individuals held responsible for these actions.

Conclusion

Until the Israel-Gaza conflict many or all military conflicts have been between States.  In this instance Gaza is not a formally recognized State. Nor is Palestine. While Palestine enjoys recognition as a State by a considerable number of nations and international bodies, the practical exercise of full statehood, encompassing control over borders and territory, remains a subject of dispute and negotiation. The status of Palestine remains a central issue in the Israeli-Palestinian conflict and international diplomacy.

Be that as it may, war can be broadly defined as a condition of armed confrontation that arises between distinct nations or states, or among various factions within a nation or state.  In this sense Palestine (and even Gaza) is incontrovertibly a nation, if not a State. Therefore, there is no room for doubt that the Geneva Conventions would indeed apply to the Israeli-Gaza conflict.

Ruwantissa Abeyratne

Dr. Abeyratne teaches aerospace law at McGill University. Among the numerous books he has published are Air Navigation Law (2012) and Aviation Safety Law and Regulation (to be published in 2023). He is a former Senior Legal Counsel at the International Civil Aviation Organization.

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