The Travesty of “International Humanitarian Law”

Just about everything that’s wrong with the current conception of “international humanitarian law” was encapsulated in a UN official’s response to the recent escalation between Israel and Hamas in Gaza.

Surprisingly, it started off well. The agency’s special coordinator for the Middle East peace process, Robert Serry, condemned the rocket attacks from Gaza, saying they were “in clear violation of international humanitarian law and endanger civilians.” Then, noting Israel’s retaliatory air strikes, he even declared that Israel had “a right to self-defense.”

Had the sentence ended there, it would have been fine. But it didn’t. Israel, said Serry, has “a right to self-defense consistent with international humanitarian law” [emphasis added] — which requires it to “exercise maximum restraint and take every precaution to ensure Israeli forces do not endanger civilians in Gaza.”

And that’s where the whole concept breaks down. Because what happens when “maximum restraint” and taking “every precaution” fail to stop the rocket fire? After all, we already know they will: Israel tried precisely this kind of pinpoint strike — in which pilots are strictly forbidden to fire if there’s any chance of hitting civilians — for three years after leaving Gaza in 2005, but it had no effect whatsoever on the daily rocket fire.

That’s why Israel finally went to war two years ago. It still worked hard to avoid hurting civilians: with even Hamas now admitting that it lost some 700 combatants, it’s clear that civilians constituted only about 40 percent of fatalities — far below the 90 percent norm for modern warfare. But this certainly wasn’t an exercise in “maximum restraint.” It was a full-scale military operation.

The war produced two results. One was a dramatic reduction in rocket and mortar strikes on southern Israel, from about 4,000 in 2008 to 180 this year. The other was the Goldstone Report, which accused Israel of “war crimes” and urged its prosecution in the International Criminal Court.

In short, under the modern conception of “international humanitarian law,” countries have two choices: either use “maximum restraint” and take “every precaution” to avoid hurting enemy civilians, with the result that lethal attacks against your own civilians continue undisturbed, or take effective military action to protect your own civilians and be branded a war criminal.

This is a travesty. International humanitarian law was never meant to strip countries of the ability to protect their own citizens, nor was it meant to force countries to protect enemy civilians at the expense of their own. The statesmen who drafted the agreements from which this law ostensibly derives, like the Hague Conventions and the Geneva Conventions, all understood that a country’s first duty is to protect its citizens. And nothing in the actual text of these documents would prevent any country from doing so.

The West needs to return to these original texts and abandon the warped interpretation promulgated by so-called human rights organizations and international bodies like the UN. Otherwise, it will find itself defenseless against any aggressor, from al-Qaeda to North Korea. For aggressors share one common denominator: they don’t consider themselves bound by any kind of international law.