Palestinian health officials on Monday announced that the death toll had topped 500 during the two week-long Israeli operation, with a signifanct increase in pace after the ground invasion of the Gaza Strip began last week. While many are drawing attention to the fact that nearly three-quarters of those killed are civilians, one controversial op-ed wonders whether such a thing as a civilian even exists in Gaza.
In a Wall Street Journal essay published online late Monday afternoon, Thane Rosenbaum — the director of the Forum on Law, Culture, and Society at New York University’s School of Law, who recently wrote a book entitled “Payback: The Case for Revenge” — mulls whether Palestinians in Gaza actually count as civilians. Noting Hamas’ preference for assymetrical attacks against both Israeli civilians and members of the armed forces, Rosenbaum laments the fact that Hamas operates outside the framework of international law, eschewing uniforms and open combat to hide among civilians. While this behavior is legitimately problematic and a violation of international norms, Rosenbaum’s next leap of logic is where the train comes off the rails:
The asymmetry is complicated even further by the status of these civilians. Under such maddening circumstances, are the adults, in a legal and moral sense, actual civilians? To qualify as a civilian one has to do more than simply look the part. How you came to find yourself in such a vulnerable state matters. After all, when everyone is wearing casual street clothing, civilian status is shared widely.
This section makes up the crux of Rosenbaum’s argument and it’s here that most of the outrage towards his article has been focused. There are two main problems with this line of thinking, one much more problematic than the other. The first is that under international law, Rosenbaum is calling for Israel to perpetuate war crimes. The International Committee of the Red Cross list as one of the main customary rules of international humanitarian law, the fancy name for the laws of war, that “civilians are persons who are not members of the armed forces,” adding that “the civilian population comprises all persons who are civilians.” Just because Rosenbaum argues that this doesn’t apply to the people of Gaza doesn’t make it so.
Additionally, Article 51 of the Geneva Convention’s First Protocol states that the “civilian population and individual civilians shall enjoy general protection against dangers arising from military operations.” From there, it lists the lengths that armies should go through to ensure that civilians remain protected during conflict and outlines the ban on “against the civilian population or civilians by way of reprisals.” Meanwhile, the Rome Statute — the founding document of the International Criminal Court — has a full section detailing the ban on attacking civilians and civilian targets, placing violators in the category of potential war criminals. Now, Israel has neither signed onto the Rome Statute nor the Geneva Convention’s First Protocol. But the Red Cross still considers the main convention and its protocols as customary international law at this point, which all countries have to follow. But the author is not done:
The people of Gaza overwhelmingly elected Hamas, a terrorist outfit dedicated to the destruction of Israel, as their designated representatives. Almost instantly Hamas began stockpiling weapons and using them against a more powerful foe with a solid track record of retaliation. What did Gazans think was going to happen? Surely they must have understood on election night that their lives would now be suspended in a state of utter chaos.
“Life expectancy would be miserably low; children would be without a future,” he adds. “On some basic level, you forfeit your right to be called civilians when you freely elect members of a terrorist organization as statesmen.” Here Rosenbaum uses an argument that most men and women who have to deal with the trauma of rape will find familiar, one in which the victim has clearly done something to bring the resulting action on themselves. Also, he’s mistaken in that the election’s aftermath didn’t quite proceed as he said. Though Hamas did win over half of the seats in the parliamentary election in 2006 — which the U.S. urged to take place — there was a literal civil war between Hamas and Fatah over control of the Palestinian Authority. In the end, Fatah found itself limited to the West Bank when Hamas seized control of the entirety of the Gaza Strip, effectively bifurcating the Palestinian people. With so little territory, and restrictions on travel between the two sides, where were Gazans who opposed Hamas supposed to go?
And as freelance writer Matt Bruenig points out on his personal blog, the argument that Rosenbaum makes with regards towards elections isn’t exactly original. It is, in fact, the same justification that Osama bin Laden used in blaming American civilians and targeting them for reprisals based on the U.S. government’s support of Israel. “Thus the American people have chosen, consented to, and affirmed their support for the Israeli oppression of the Palestinians, the occupation and usurpation of their land, and its continuous killing, torture, punishment and expulsion of the Palestinians,” bin Laden wrote. “The American people have the ability and choice to refuse the policies of their Government and even to change it if they want.”
To make matters worse, Gazans sheltered terrorists and their weapons in their homes, right beside ottoman sofas and dirty diapers. When Israel warned them of impending attacks, the inhabitants defiantly refused to leave.
In contesting that the residents of Gaza “defiantly refused to leave,” we return to the point that Gaza is an extremely small, densely packed territory. In Gaza City, one of the major targets of Israeli airstrikes, there are roughly 42,600 people for each of the 17 square miles. This, as the Washington Post noted, is far more dense than major cities such as London, Shanghai, and Tokyo.
“There is literally no safe place for civilians,” Jens Laerke, spokesman of the U.N. Office for Humanitarian Assistance (OCHA), told a news briefing in Geneva. “The ground incursion has led to an exponential increase in the number of IDP,” UNOCHA said in its latest report. “By this afternoon, UNRWA was hosting over 100,000 in 69 schools operating as emergency shelters, including all UNRWA schools in Gaza city. This is up from 47,000 persons hosted in 36 shelters on 18 July. Over 15,200 IDPs, whose homes have been destroyed or damaged, are hosted by relatives and neighbors.”
It’s worth noting that Israelis are also bearing the weight of this conflict, though in smaller numbers — as of Tuesday, 27 Israelis have been killed, including two civilians. In the end, though, the biggest argument against the op-ed published in the Journal hinges less on the legal sense that Rosenbaum mentions than the moral one: the people of Gaza are still people. Twenty-five of those people, all members of one family including 18 children, were killed in one airstrike. While Rosenbaum does limit his opinion to only the adults of Gaza, the death of more than 500 people in a conflict should be enough to give anyone pause, especially when according to the United Nations the majority of those wounded have been children. But even the children of Gaza must pay for any possible sin of the parents, according to Rosenbaum, who notes that sympathies should be reserved for children whose parents are not card-carrying Hamas loyalists.”