By Col R Hariharan | Magazine | Special | India Legal | November 17, 2023
https://www.indialegallive.com/magazine/israel-palestine-gaza-civilians-hamas-humanitarian-aid/
Israel’s revenge
against the Hamas in Gaza has once again highlighted the humanitarian concerns
of waging war against terrorists. It was triggered by the Hamas infiltrating
across the border killing 1,200 Israelis and foreigners and abducting 240
people.
The war started
on October 7 and already over 12,000 people have died, including Israeli and
Palestinian civilians and combatants. The tragedy is compounded by the fact
that children form over a third of the dead.
The UN Relief and Works Agency for Palestine
Refugees in the Near East (UNRWA), which has been providing relief to Palestine
people living in West Bank, East Jerusalem and Gaza since May 1950, reported
the death of 102 of its own relief workers as of November 14. Many more of them
are unaccounted and could be stuck under the rubble. Around 1.6 million people
have been internally displaced and housed in relief camps.
Only one fifth of the 35 hospitals in Gaza are
functioning. The Hamas appears to have used many of them as a cover for
constructing extensive underground tunnels to store weapons and house cadres.
As a result of rocket and missile attacks against the underground system, many
hospitals have been out of action, causing casualties among patients. The
Agency has estimated 50,000 pregnant women in Gaza, with more than 180 giving
birth every day. Water, fuel and food to feed the refugee population is likely
to run out soon. UNRWA is also running out of money—as against $481 million
required for relief work till the end of the year, it has only $128.1 million,
representing about 27% of the requirement.
Democracies have to be accountable to the
people; so, they are hobbled by public opinion in handling the war against
terrorists, who are often embedded amidst the population. Often emotions,
rather than operational logic, drive their response. This is evident from the
emotional responses of Israeli Prime Minister Benjamin Netanyahu and former
POTUS George Bush after terrorists attacked their country. Netanyahu in a
televised address in October said: “We are at war… Not an operation, not a
round, but at war. The enemy will pay an unprecedented price…. Israel would
return fire of a magnitude that the enemy has not known.” This echoed Bush’s
sentiments after the 9/11 terrorist attacks: “Our war on terror begins with al
Qaeda, but it does not end there. It will not end until every terrorist group
of global reach has been found, stopped and defeated.”
Massive protests against Israeli operations in
Gaza have been launched not only in Islamic countries, but also in Israel,
Europe and America. Countries debating the war in Gaza in the UN General
Assembly (UNGA), including India, have reflected the dilemma nations face in
responding to Israel’s Gaza operations.
India, one of
the oldest protagonists of the Palestine cause, has taken a tough stand on
cross border terrorism since 2019. This is reflected in its stand on the
Israel-Hamas war in the UN. Prime Minister Narendra Modi was the first one to
message Netanyahu, condemning the Hamas attack on October 7. India surprised
everyone by abstaining when a non-binding Jordanian resolution was voted in
UNGA on October 27. The resolution called for “an immediate, durable and
sustained humanitarian truce” between Israeli forces and Hamas militants in
Gaza. The resolution also asked for “continuous, sufficient and unhindered”
provision of lifesaving supplies and services for the people trapped inside the
enclave. An amendment to condemn the Hamas for the initial attack was voted
out.
However, India
voted for another UNGA resolution condemning Israeli settlement activity in
“Occupied Palestine Territory, including East Jerusalem and in the occupied
Syrian Golan”. India’s Deputy Permanent Representative Yojna Patel, explaining
India’s vote, said: “Our thoughts are also with those taken hostage. We call
for their immediate and unconditional release….This humanitarian crisis needs
to be addressed. We welcome the international community’s de-escalation efforts
and delivery of humanitarian assistance to the people of Gaza.” India too has
contributed to this effort.
The Biblical
quotation “a time to love and a time to hate, a time for war and a time for
peace” (Ecclesiastes 3:8) reflects the reality of humanity reconciling to the
idea of war as a part of life. Major religions speak in support of righteous
war. The Bhagavad Gita contains exhortations for going to war for the right
cause. The Buddhist middle path and its mindfulness techniques to nurture
self-control and sense of moderation, tries to humanise war and prevent its
worst excesses.
History is full of “righteous wars” waged for the right cause. Even righteous
wars cause death and destruction of innocent civilians, sidelined as collateral
damage. The International Committee of the Red Cross (ICRC) traces the roots of
concern for civilians in times of war to historic concepts of justice such as
the Code of Hammurabi (1750 BC) and the Code of Justinian (ad 529-565). Of
course, our own concept of Dharma Yudh encompassing the aspect of protecting
civilians in times of war is probably even older.
International
Humanitarian Law (IHL), a set of rules to protect persons who are not
participating in hostilities, is contained for the most part in the four Geneva
Conventions of 1949 adopted by all nations. It also restricts the methods and
means of warfare. The Conventions have been expanded by two Additional
Protocols of 1977 relating to the protection of victims of armed conflict and
the 2002 Additional Protocol. These Conventions provide specific rules to
safeguard combatants who are wounded, sick or shipwrecked and civilians as well
as medical personnel, military chaplains and civilian support workers of the
military. The bulk of the Convention Part III Articles 27-141 gives regulations
governing the status and treatment of protected persons. These provisions
distinguish between the situation of foreigners on the territory of one of the
parties to the conflict and that of civilians in the occupied territory.
How will IHL
apply to countries fighting terrorists in their own country, often extending to
the neighbouring country like in the case of Israel and India? UN member states
have been carrying out the UN biennial Global Counter Terrorism Strategy Review
(GCTSR). The eighth biennial GCTSR resolution was adopted on June 22. It
specifically aims at furthering the promotion of human rights and protection of
civilian space. But the heated debate that ensued among member states to
deprioritise human rights and civil society engagement, based on their own
experience against terrorists, showed the lack of consensus among member
countries in evolving an acceptable strategy. This is not surprising as the UN
has not been able to evolve even an acceptable definition of terrorism itself.
The war in Gaza
is poised to become the greatest human tragedy of the 21st century if Iran’s
Hezbollah militant groups, active across Israel’s border in Lebanon and Syria,
join it. Netanyahu has issued a direct warning to Hezbollah: “Do not make a
mistake and enter the war because …your entry into the war will decide
Lebanon’s fate.” The Levant is a cauldron of diverse strategic interests
pampering their own terrorist groups. This makes intelligence assessments
difficult.
If Hezbollah
does not heed Netanyahu’s words and joins the war, Bertrand Russell’s words:
“war does not determine who is right—only who is left” may well come true. That
will validate my own cynical finding, after fighting insurgents for a few
decades, that humanitarian war is an oxymoron.
The writer
is a retired military intelligence specialist on South Asia associated with the
Chennai Centre for China Studies
