Thursday, October 1, 2009
Australian general criticises UN's Gaza report
But the defender also has obligations. He cannot exploit these laws by deliberately commingling his fighters with civilians, as Hamas admits it did. This violates the most basic principle of the law of war. However, should our opponents do this, the attacker is not relieved of all legal obligations: we still had to comply with proportionality principles and refrain from attacks likely to result in civilian damage excessive in relation to military gain.
Let us not forget that it is very common for our adversaries, be they al-Qa'ida or Hamas, to exploit legal constraints for their strategic or tactical gain. Proportionality is always an issue, but to see Hamas as David to the Israeli Goliath, and to then feel undue empathy for David while blaming everything on Goliath, is to distort the complexity of each position. For example, I would argue that to comply with the law of war it is essential that if a combatant possesses the precision-guided munitions that the report seemed to see as unfair, he is obligated to use those because they discriminate.
Inherent in the principle of protecting the civilian population is a requirement that civilians not be used to render areas immune from military operations. A party to a conflict that chooses to use its civilian population for military purposes violates its obligation to protect its own civilians. It should not complain (but of course it will) when inevitably, although regrettable, civilian casualties result.
With experience of having to tread through this legal and moral minefield while acting as an agent of the statesman who has an obligation to act, I was looking forward to how Goldstone was going to react to questions such as: How much discrimination is enough? How much of the inevitable killing of innocents is too much? How do we equate our complex war aims with the use of military force against a terrorist organisation that flouts the rule of law? How do you assess in legal terms the proportionality of a war between a terrorist force and one of the world's most advanced militaries? If one side uses backyard rockets is the other side not allowed to use precision-guided missiles? Do three Israelis killed and hundreds wounded by backyard rockets equal 1000 Gazans killed by Israeli actions? Given the legal regime recognises the difficulty of military decision-making amid the fog of war, and thus obligates planners and commanders to base decisions on information reasonably available at the time, how did the report handle this issue?
On these and many other questions, the Goldstone report is strangely silent...
Full article here
Retired major general Jim Molan was chief of operations of the Iraq multinational force in 2004-05.