1. Introduction of the Issue
The Question
The question of this post is who is guiltier of "War Crimes" in the recent Israel/Gaza war, Israel or Gaza? (I say "Gaza" instead of Hamas because why say an entire country on one side, Israel, and just a political party, Hamas, on the other side? It makes one think that those who do want to increase blame on the entire Israel side while limiting blame on the Gaza side to Hamas, even though Gazans support Hamas' recent actions exponentially more than Israelis support their government's recent actions. Homas don't play that game).
Doing a search on the Internet (Google) with key words "Israel" "Hamas" "War Crimes" and "2021" gives 10 direct hits on the first page. Most of the articles claim that Israel and Hamas may be guilty of War Crimes. What is the actual EVIDENCE though for relative war crimes (who is guiltier)?
2. Discussion
Definition of "War Crimes"
"Under the law of armed conflict (LOAC), the death of non-combatants is not necessarily a violation; there are many things to take into account. Civilians cannot be made the object of an attack, but the death/injury of civilians while conducting an attack on a military objective are governed under principles such as of proportionality and military necessity and can be permissible. Military necessity "permits the destruction of life of persons whose destruction is incidentally unavoidable by the armed conflicts of the war;
it does not permit the killing of innocent inhabitants for purposes of revenge or the satisfaction of a lust to kill. The destruction of property to be lawful must be imperatively demanded by the necessities of war."[40]
...
When there is no justification for military action, such as civilians being made the object of attack, a proportionality analysis is unnecessary to conclude that the attack is unlawful."
Summary:
1) If the objective of the attack is civilian the attack is always
a War Crime.
2) Civilian casualties in an attack are not automatically a War Crime.
3) If there is a combination of a military objective and civilian casualties from an attack, the relative value of the military objective must be compared to the civilian damage to determine if there is a War Crime.
Measurement of War Crimes in 2021 Gaza/Israeli War
The most objective measurement of War Crimes is in terms of quantity rather than quality (with apologies to Jon Oliver #RatFJonOliverandtheHamasmissileherodeintoTelAvivwith).
Gaza fired 4,360 rockets, all with the objective of Israeli civilians, so that's 4,360 War Crimes.
Trying to quantify possible Israeli War Crimes is much more difficult. Other than Israel, it's unknown how many rockets Israel fired at Gaza. Everyone would agree that the majority of Israeli rockets had military objectives. You would have to look at specific Israeli rocket attacks but another significant problem is while Gaza would be in the best position to provide evidence of a War Crime, lying about the relative military versus civilian damage would be well within its definition of "resistance".
For example, looking at an Israeli attack with the most potential for War Crime due to the extent of civilian damage, the lead candidate is probably when Israel fired 11 missiles along 200 yards of Wehda Street, in Gaza City. Gaza claimed that 44 civilians were killed. Here the objective of the attack was military as according to Israel the objective was a Hamas military base in an underground tunnel. So the fact that there was collateral civilian damage does not automatically make it a War Crime. The proportionality of the military value must be compared to amount of civilian damage. A Hamas military tunnel would have a very high military value as there are relatively few such tunnels in Gaza, they are the best hiding places for rockets and Hamas military leaders, are deterrents to an Israeli ground assault and are protected by being placed deliberately close to major civilian centers. In addition to destroying the tunnels Israel also estimated it killed 44 Hamas soldiers, including important officers, in the strike. On the other side, in addition to killing possibly 44 civilians, Israel destroyed two multi-family residential buildings. Israel claimed afterwards that it was not aware of the extent of the tunnel and its proximity to the buildings. This suggests that Israel did think that the resultant civilian damage was excessive in proportion to the military value or at least that others would think so.
Other important factors though in determining War Crimes in the context of proportionality are:
1) The intent of the attack. Here Israel had no intention of inflicting so much civilian damage.
2) The extent to which the enemy contributed to the amount of civilian damage. Here the placement by Hamas of a military tunnel underneath residential buildings is not only a War Crime by itself but also makes the residential buildings part of the military target.
3) Comparison to other similar attacks by other countries. There are comparable attacks by other major countries with exponentially higher proportions of civilian damage that were never Internationally categorized as War Crimes.
Based on the above, it's unclear that if you were any country other than Israel, the International Community would conclude this attack was a War Crime.
3. Conclusion
In summary, regarding who is guiltier of War Crimes in the recent Israeli/Gaza War, and using the most objective measurement of War Crimes, the number of, we have the following conclusive results:
Gaza = 4,360
Israel = -0-
So congratulations Gaza, you finally found something you are better at than Israel. And when will the protest/boycott of Gaza for war crimes be held at the Palestinian/Palestinian supporters' offices or business connections and when is the UN session to condemn Gaza for War Crimes and/or related Op-Ed in The Times (rhetorical, no need to answer).
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