Here is an interesting speech on the laws of war and my comments.
Speech from UK Lord
Guglielmo Verdirame, Baron Verdirame, KC (born 25 August 1971) is a legal scholar, barrister and a member of the House of Lords. He is Professor of International Law at King's College London in the Department of War Studies and the School of Law. He was previously a Junior Research Fellow at Merton College, Oxford, a university lecturer in law at the University of Cambridge Faculty of Law, a Fellow of the Lauterpacht Centre for International Law, a visiting fellow at Harvard Law School, and a visiting professor at Columbia Law School. He is a dual national (British and Italian), and was born in Reggio di Calabria, Italy.[1]
My Lords, I too thank the Minister for his wise words in opening the debate. I join others in calling on him and the Government to use their influence on Qatar to ensure the release of the hostages. We also need to record our thanks to the International Committee of the Red Cross and the Red Crescent for the very positive role they have played.
There has been a lot of talk about proportionality in the law on self-defence. I refer to the words that the noble Lord, Lord Pannick, used a few days ago on the test of proportionality. It does not mean that the defensive force has to be equal to the force used in the armed attack. Proportionality means that you can use force that is proportionate to the defensive objective, which is to stop, to repel and to prevent further attacks.
Israel has described its war aims as the destruction of Hamas’s capability. From a legal perspective, these war aims are consistent with proportionality in the law of self-defence, given what Hamas says it does and what Hamas has done and continues to do.
Asking a state that is acting in self-defence to agree to a ceasefire before its lawful defensive objectives have been met is, in effect, asking that state to stop defending itself. For such calls to be reasonable and credible, they must be accompanied by a concrete proposal setting out how Israel’s legitimate defensive goals against Hamas will be met through other means. It is not an answer to say that Israel has to conclude a peace treaty, because Hamas is not interested in a peace treaty.
Proportionality also applies in the law that governs the conduct of hostilities, not only in self-defence. The law of armed conflict requires that in every attack posing a risk to civilian life, that risk must not be excessive in relation to the military advantage that is anticipated. That rule does not mean, even when scrupulously observed, that civilians will not tragically lose their lives in an armed conflict. The law of armed conflict, at its best, can mitigate the horrors of war but it cannot eliminate them. The great challenge in this conflict is that Hamas is the kind of belligerent that cynically exploits these rules by putting civilians under its control at risk and even using them to seek immunity for its military operations, military equipment and military personnel. An analysis of the application of the rules on proportionality in targeting in this conflict must always begin with this fact.
There has also been some discussion about siege warfare. The UK manual of the law of armed conflict, reflecting the Government’s official legal position—it is a Ministry of Defence document—says:
“Siege is a legitimate method of warfare … It would be unlawful to besiege an undefended town since it could be occupied without resistance”.
Gaza is not an undefended town. It is true that obligations apply to the besieging forces when civilians are caught within the area that is being encircled, and those obligations include agreeing to the passage of humanitarian relief by third parties. But it is not correct to say that encircling an area with civilians in it is not permitted by the laws of war.
A further point that concerns the laws of war is also of particular relevance to the British Government’s practice. It has already been mentioned that the Government have taken the view that Gaza remains under Israeli occupation, even though Israel pulled out in 2005. The traditional view until 2005 was that occupation required physical presence in the territory. That view is consistent with Article 42 of the Hague regulations of 1907, which states that a territory is occupied when it is actually placed under the authority of the occupying power. Again, it is also the view taken by the UK manual of the law of armed conflict, which reflects the UK’s official legal position and states that occupation ceases as soon as the occupying power evacuates the area. The European Court of Human Rights, in its jurisprudence, has also adopted a similar approach to occupation. So I have always been rather baffled by the British Government’s position on this issue, which, as far as I know, has not changed. Yes, it is true that Israel has exercised significant control over the airspace and in the maritime areas, but even as a matter of plain geography it takes two—Israel and Egypt —to control the land access points to Gaza.
More fundamentally, it is Hamas that has been responsible for the government and administration of Gaza. I appreciate that this is a legal matter on which the Minister may not want to respond immediately but it is an important one, because the legal fiction that Israel was still the occupying power under the laws of armed conflict has been relentlessly exploited by Hamas to blame Israel for everything, while using the effective control that it has over the territory, the people and the resources to wage war.
On a final note, I would like to say something briefly on the way in which the war is being reported. When a serious allegation is made, particularly one that could constitute a war crime, the immediate response of the law-abiding belligerent will be to say, “We are investigating”. The non-law-abiding belligerent, by contrast, will forthwith blame the other side and even provide surprisingly precise casualty figures. The duty to investigate is one of the most important ones in armed conflict. What happened in the way in which the strike on the hospital was reported is that the side that professes no interest whatever in complying with the laws of armed conflict was rewarded with the headlines that it was seeking.
My comments
I agree with the above speech, but would go further.
Many people, including lawyers who should know better, completely mis-state the concept of proportionality in the laws of war.
The proportionality is related to the value of the military target and the related civilian damage. It is not a concept that says the stronger party cannot beat the weaker one or use a much larger force and overwhelming firepower to defeat a weaker opponent.
Such a concept is contrary to the basic operational principles of warfare which call for massive overmatch at the point of engagement.
Thus a high value military target like Hamas headquarters can be destroyed even if they put 1 million civilians on top of it. The IDF will hopefully soon destroy these military bases and their hospital cover. We have given sufficient warning to evacuate already.
But there is something even higher level that is not discussed in this speech or much elsewhere.
The laws of war do not apply to the conflict with Hamas at all.
The laws of war are embodied in a series of international treaties which only bind those parties that have signed them in relation to their conduct regarding other signatories.
They are based on reciprocal obligations, like contract.
This is true of all international treaties and international law in general.
Despite the best efforts of globalists, there is no world government to make and enforce laws like on a national level, so international law is just a series of reciprocal treaty based obligations.
Neither Gaza nor Hamas has signed nor abides by these obligations, so Israel is also not bound in this conflict.
This can be observed very clearly in WWII when the Germans obeyed the laws of war on their Western Front because the UK, US, France etc and Germany had signed the relevant treaties. Jewish allied combatants were not separated and murdered.
On the Eastern Front, because the USSR had not signed the relevant treaties, neither side observed the laws of war.
Japan did not observe the Laws of War because it had not signed them and arguably the United States also did not observe (and was not bound to) the Laws of War in relation to Japan, especially in relation to the use of atomic bombs.
Israeli Purity of Arms
Quite separately to international Laws of War, Israel has its own internal moral code of warfare based on Jewish law called Purity of Arms.
https://www.jewishvirtuallibrary.org/ruach-tzahal-idf-code-of-ethics
https://www.idf.il/en/articles/2016/protecting-our-home-maintaining-purity-of-arms/
Jewish law has always included an exception to general humanitarian principles in warfare when facing a brutal, evil and monsterous enemy that does not fight by civilised rules and seeks the destruction of The Jewish people. This is the concept of Amalek.
https://www.chabad.org/library/article_cdo/aid/3942715/jewish/Who-Were-Amalek-and-the-Amalekites.htm
Hamas clearly falls within this category.
The Laws of War do not serve a moral purpose
Contrary to what most people think, the international Laws of War were not conceived for a moral purpose nor do they serve such a purpose.
The treaties which created this reciprocal were conceived for the purposes of military efficacy and to reduce the overall economic destruction level of warfare.
The reason for humane treatment of POWs is to encourage the the surrender of the losing soldiers in a battle, so that huge resources of the winning side can be spent on winning the next battle rather than digging out and killing every enemy soldier (like Japanese soldiers in WWII).
The reason for attacking only military targets is that attacking civilian target while the enemy army remains in the field:
- wastes time and diverts military resources from actually winning the war; and
- encourages the enemy army to fight more fiercely.
Militarily successful armies (eg the Germans in WWII (1939-1941) the Union in the US Civil War and the Azeris in Nagorno Karabakh (in 2023)) only attack purely civilian targets (if at all) after the enemy army has been defeated in the field because to do it the other way around risks losing the war.
If using civilians as shields for military facilities was militarily effective then armies all over the world would have adopted this policy centuries ago.
If Western civilisation is to survive it must expunge the perversion of The Laws of War by its enemies.
Israel (although not part of The West) is now, finally, abandoning this insane and suicidal perversion of the Laws of War and returning to their real meaning.
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