It is possible to grieve and honor the hundreds of Israeli women, children, and men killed or injured in last Saturday’s brutal attack without simultaneously devaluing the lives, suffering and basic humanity of Palestinians.
Khaled Elgindy, Senior Fellow Middle East Institute.
News cycles shift attention.
Russian rockets brazenly demolished Hroza, a Ukrainian village on 5 October 2023. Hroza was not a legitimate military target. It posed no military threat and was of no military significance. 50 civilians were killed, hundreds more wounded. One of the deadliest attacks of unarmed, unthreatening, uninvolved citizens, it got worldwide attention. The attack was of a harmless village with harmless men, women, children, and elderly, away from the front, and far removed from any military objective. With no disclaimers of this being the handiwork of an undisciplined and uncontrolled rogue unit, or of a barrage of rockets gone astray, or of a mistaken target, this has all the hallmarks of a calculated, deliberated, and targeted attack to kill Ukrainian civilians. Outcries of genocide followed. As hard as it may be to shock the conscience after witnessing on media outlets unrelenting and indiscriminate Russian attacks, this one seemed different – maybe a game-changer. Until two days later.
Hamas’ merciless and vicious and deliberated killing and kidnapping spree of innocent Israeli civilians shifted the world’s attention. Just as the Hroza rocket attack was seemingly designed to eliminate a part of the Ukrainian people because of their ethnicity, so too the attacks by Hamas, especially at Kibbutz Kfar Aza, Kibbutz Beeri, Kibbutz Nir Oz and the Nova Music Festival, were seemingly designed to eliminate a part of the Israeli people because of their ethnicity and religion.
These atrocities are different, distinct, distant. Except that in both cases it seems that acts of genocide were committed. As a student of international law, I don’t use the term lightly. Too often politicians, journalist, even human rights activities invoke genocide without appreciating the narrow definition and distinguishing mens rea required. Some will argue that the numbers in both instances are not high enough. Nonsense. Intent – the special genocidal intent to destroy in whole or in part a national, ethnic, racial, or religious group – is what counts. Wiping or attempting to wipe out the inhabitants of a village or a kibbutz can qualify as genocide or attempted genocide. If the intended purpose was to eliminate a part of the group because of their ethnic, racial, or religious makeup – thus destroying or attempting to destroy the fabric of that community with its unique characteristics which is part and parcel of the group itself (think of the Muslims, now known as Bosniaks, of Srebrenica) – you have genocide.
While I am simplifying and generalizing for the sake of space, calling it as I see it based on the available information, these two incidents, but more assuredly what Hamas has done in Israel, appear to have all the attributes of genocide. By Hamas’ own admissions and grotesque boasting, both the political and military echelon are responsible. And, as I noted in my previous post, State Party Palestine has responsibilities under the Rome Statute.
For the past week the world grieved with Israel and the Israelis and the Jewish people the world over. We heard stories from survivors. We saw footage of kidnappings. With horror we saw the innocent dead – babies, women, little boys and girls, the elderly and infirm, the able body men and women. We were subjected to footage from Hamas displaying their evil and inhumanity. And we have witnessed the training camps where in open view and unconstrained, Hamas militants trained for months on executing their targeted and premediated and genocidally intended attacks. In some sense, we were all Israeli and Jewish this past week. Who with any sense of humanity would not be moved to tears in mourning and anguish on hearing and seeing Hamas’ brutality?
Almost a week to the day, the news cycle swiftly shifted. Israel’s 24-hour demands to the 1.1 million Palestinians in northern Gaza to move to southern Gaza shifted the attention (and in some measure, sympathy) from the Israelis to the Palestinians of Gaza. Caught in the middle, it is not a matter of whether they will suffer, but to what extent. To Hamas – with deliberate, callous, calculation – embedded in and operating from residential building, business premises, healthcare facilities, school – the Palestinian civilians in Gaze are expendable cannon fodder and public relations tools. To the Israel Defense Force (IDF) – who must take the fight to Hamas in Gaza through aerial (and soon to start ground) ground assaults – they are unfortunate, but unavoidable, collateral damage. To humanity, they are human beings deserving care, dignity, protection, food, shelter, education, healthcare, employment opportunities, freedom, hope, dreams.
The ordinary Palestinians of Gaza, over two million of them, are not responsible for the miserable existence they have endured. Others are. The blockade, lack of medicine, insufficient nutrition, lack of employment opportunities, lack of proper educational opportunities, the constant fear, intimidation, exploitation, manipulation, and use as bargaining chips is not of their making. By all accounts I am aware of, only a small minority support Hamas – just as only a small minority in Israel support the policies and ideology of the radical extreme far right. It is absurd and inequitable to punish the entire Palestinian population in Gaza (the other million living in the south will have to share the non-existent free space and dearth of food, fuel, water, medicine, hospital care, housing, etc.), for the sins of the very few extreme elements who perpetrated this outrageous attack against innocent Israeli civilians.
Israel’s ultimatum – stay and likely be killed or leave to the south (assuming you can get there unharmed) – abides no free choice. Demanding the displacement and forcible transfer of half the population living in the Gaza strip, violates international norms. The scale of and demand for a forcible removal with little time, no humanitarian resources, lack of infrastructure, and no safe and secure place to go, is unprecedented.
The death toll and human suffering among Palestinians is already high, though there are no equivalencies to be found in body counts. Parts of northern Gaza already look like Dresden from IDF’s aerial bombardment, tenderizing the urban areas for its ground assault. While a perfectly legal practice when the targeting is justified and judicious (yet to be transparently explained as to each target), whole city blocks of residential apartments have been reduced to rubble. Wait until the ground forces arrive; much of the Gaza strip is destined to be a wasteland of rubble, strewn with dead bodies and wounded and starving and dehumanized Palestinians. Unintended as this consequence may be – or unavoidable as the scale of collateral damage may turn out to be – consideration must be given to doing everything possible to avoid innocent loss of life and unnecessary destruction of Gaza’s infrastructure, urban areas and farmland.
Israel has no choice but to annihilate and permanently dismember Hamas. Through its attack of Israel and the purposeful killing of civilians, permanently wiping Israel off the map, which, as I have crudely noted amount to acts of genocide, Hamas has forfeited its right to exist in any form. It must be eradicated. There can be no half-measures. And yet, how can Israel accomplish this without committing crimes against humanity and possible war crimes on a massive scale? That is the conundrum Israel faces.
IDF spokesperson Lieutenant Colonel Jonathan Conricus told CNN:
It’s really important that people in Gaza know we’ve been very, very generous with the time. We have given ample warning, more than 25 hours … I cannot stress more than enough to say now is the time for Gazans to leave.
Abiding by international norms is not a matter of generosity; it is an obligation. Yes, operationally, IDF may have delayed or slowed down its ground offensive in hunting down Hamas militants. Inconvenient as this may be, and imperfect as the laws of war may be, the loss of innocent lives had to be considered. So, commendable as the warning to the unarmed civilian Palestinians may be, missing in this act of generosity is a profound failure to account for the logistical impossibilities confronting these homeless or soon-to-be homeless innocent civilians.
How, for instance, can a medical facility safely evacuate the patients. And where do they evacuate them to? I could go on with other examples, but one need only look at the images coming out from Gaza to appreciate the challenges, dangers and infeasibilities faced by the Palestinians desperately wanting to be out of harm’s way.
Hamas no doubt will take advantage of Israel’s prudent postponement of its ground offensive, just as it will continue to cynically use and exploit those who cannot or will not evacuate as human shields while claiming to be their saviors. Hamas does not play by the rules; never has. Israel and the IDF do. It is not always easy. The rules are not as black and white as most folks unfamiliar with the vagaries of international law think. Yet, abiding by international norms is what distinguishes liberal-democratic Israel from terrorist organizations and illiberal democracies where references to the rule of law are a cliché and manipulated convenience.
I agree that Israel must act swiftly, decisively, and overwhelmingly against Hamas. What I find disquieting is its 24-hour ultimatum. Aside from resulting in a massive displacement creating, a devastating humanitarian crisis, the human toll of collateral damage (the killing of innocent civilians guilty of nothing more than being on the wrong side at the wrong place at the wrong time), will inevitably be high.
Rational, reasonable, and restrained options are available. More time must be given to open humanitarian corridors. Power and water must be restored. Medicine and food must be allowed into Gaza. Intense negotiations for Palestinians to temporarily exit into neighboring countries with humanitarian aid and safety provided to them – already somewhat in the works – must be given time. In the meantime, aerial attacks can continue but with more prudence, transparency, and necessity. Also, more care must also be given to those evacuating, as reports are coming out that civilian convoys headed south have been struck – as have ambulances.
I am sure with imagination and creativity, the Israeli authorities and IDF can find ways to ameliorate the humanitarian devastation that awaits. Once the ground assault commences, finding an off-ramp and minimizing the human suffering of innocent Palestinians trapped in Gaza will be exceptionally difficult, if not impossible. I say impossible because, to repeat, what Israel is asking through its ultimatum is a logistical impossibility. Then there is also the added probability that the IDF ground assault will trigger a full-fledged attack by Hezbollah. And what of the Golan Heights; if a second front is opened by Hezbollah, a third one is also likely. All things considered, thus far these two fronts have been relatively passive.
I leave it to the sophisticated and knowledgeable experts to unpack the potential scenarios ahead, and to proffer more viable alternatives than IDF’s 24 hour ultimatum. There must be another way. While Hamas does not care a whit about international humanitarian law, Israel does, and in this moment it must work hard to toe that line. The people of Israel are too good to inflict these punishments on innocent Palestinians.
My aim has been to highlight the dangerous, unsympathetic, and legally fraught road Israel has announced it will take in responding to Hamas’ inexcusable terror, by forcibly displacing 1.1 million Palestinians. Many no doubt will disagree with my take, finding it simple, naïve, even misguided. Expected. Silence, however, seemed to be a luxury I could ill afford.
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