July 06, 2020
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Indian Or Israeli?

How does Israel's "military" offensive against Hamas and India's "diplomatic" offensive against Pakistan measure up to the laws of war? What are the consequences of the two approaches? Which one is better?

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Indian Or Israeli?
Indian Or Israeli?

West and South Asia are in turmoil yet again. 

A tenuous unwritten six months cease-fire brokered by Egypt between Israel and Hamas on June 19, 2008 expired on December 19 without an attempt at further renewal resulting in the break out of massive violence in Gaza. For starters, the cease-fire was already in troubled waters due to the dogged posturing by both sides: Hamas’s refusal to put an end to rocket launches into Israeli territory; Israel’s refusal to open crossings like Rafah for the movement of goods into Gaza from Egypt. 

In effect therefore, the violent outbreak was predictable. On the one hand, an isolated Hamas wants to utilize rocket firings to coerce Israel into uplifting its strategy of economic blockades against Gaza which has virtually rendered the former incapable of meeting the basic needs of the Palestinian people. Israel, on the other, is utilizing a massive air and ground offensive since December 27 till date to violently coerce Hamas into submission before any attempts at a future cease-fire are made. 

Sadly, this time around, the role of international mediators has been limited at best with the US undergoing a transition in its Presidency, the "trustworthiness" of Egyptian mediation under question by Hamas due to the former’s false assurances that there will be no immediate Israeli military aggression post-December 19 and the EU’s 27 nations unable to come to a consensus on the conflict.  Thereby, a historical tragedy of sorts is unfolding with heightened regional tensions between Israel and the Arab world. 

Meanwhile, in South Asia, India is also facing increasing tensions with its neighbour Pakistan in the aftermath of the Mumbai terror attacks. Consequently, certain security analysts have argued that India should perhaps emulate Israel’s military offensive in Gaza in its own response to terror originating in Pakistan. Indeed, public debates in India called for surgical air-strikes on Lashkar-e-Toiba (LeT) camps in Pakistan during and immediately after the Mumbai attacks. 

Unlike Israel however, the Indian government has resisted a "knee jerk" reaction to externally exported terror and by far has shown better judgement with Manmohan Singh, India’s Prime Minister stating that a military strike on Pakistan is at this juncture "off" the table. Instead, he stated that certain elements within official agencies in Pakistan support terror activities and must be brought to book by the international community. A diplomatic effort in this direction is underway with the Indian government sharing evidence of Pakistan’s complicity in the Mumbai attacks with other nations in order to isolate it for supporting terror as an instrument of foreign policy.

Indians are naturally angry at their country’s vulnerability to such terror. It is becoming increasingly clear to them that terror outfits can strike their cities and towns with impunity and that the state’s counter-terror mechanism is weak, ineffective and unable to avert these attacks. Data tabulation of civilian deaths in 2008 terror attacks on Jaipur, Ahmedabad, Bangalore, Delhi, Guwahati and Mumbai indicates a figure as high as 800. Though the other terror attacks evoked public anger, it is the blatant nature of the Mumbai attacks by 10 LeT Pakistani nationals holding the country hostage for 62 hours that had raised the prospects of Indian air strikes on terrorist camps in Pakistan.

In order to understand the character of both the Israeli and Indian response to terror, it is rather pertinent to assess how they both measure up to the laws of war. Such an analysis will bring to the fore the nature of both responses, the consequences as well as indicate whether a military or a diplomatic response is the better of the two.

The Laws of War: Just War

The notion of "Just War" is a well honed historical tradition on the rules of war. According to this tradition, there are two aspects in war---recourse to war (jus ad bellum) and conduct in war (jus in bello). 

Jus ad bellum has six principles:

  • The first principle is "just cause," indicating that war could be waged between two legitimate political entities either for self-defence or the protection of human rights. 
  • Second, the authority that declares war must be a legitimate entity within the comity of nations. 
  • Third, war must be guided by "right intentions" and not by any hidden intent of self- aggrandisement by an individual or a state. 
  • Fourth, war must be the last resort. 
  • Fifth, it must have a high "probability of success" for the wager state. 
  • Sixth, the end result should culminate in positive benefits for the target state.

Jus in bello is based on two principles: 

  • "Proportionality of means," indicating that the "means" employed must not negate the good that war brings about in the target state. 
  • The last criterion is discrimination and non-combatant immunity: civilians cannot be targeted in a war.

Case of Israel

Locating the present Israeli military offensive in Gaza within the Just War tradition throws up interesting insights on the effectiveness of a military offensive as the first resort in a country’s counter-terror policy. 

First, Israel had a right to self defence since it was Hamas who first launched 88 rockets into Israeli territory on December 24 following an end to the cease-fire on December 19. It must be noted that independent analysts view Hamas’s act as a response to the killing of three of its operatives by Israeli forces at the border. Nevertheless, Hamas’s act constituted a violation of territorial integrity of another nation as cited in Article 2 (4) of the UN Charter. This is also justified under UN Charter Article 51 which states that "Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations…"  Therefore, in this light, a military strike against Gaza is justified. 

Second, Israel is a legitimate entity in the international community and therefore has a right to self defence. 

Third, coming to the Just War criterion of "right intentions", Israel’s intentions in Gaza are unclear. Ostensibly, it wants to stop the Hamas rocket launches from Gaza into its territory but the real goal could perhaps be to teach Hamas a lesson and brutally drive home the fact that it cannot view itself as an equal with Israel.

Israel’s military offensive also does not fulfil the "force as last resort" criterion as it did not provide mediators like Egypt or Turkey a chance to work with Hamas towards extending the cease-fire. Neither did it give Hamas an opportunity for a truce by negotiating for a "phase by phase" opening of the crossings between Israel, Egypt and Gaza which could have brought in the much needed basic goods into Gaza. In interviews to the International Crisis Group, the Hamas fighters asserted that faced with an alternative between starvation and fighting, they would rather chose the later.

That apart, the Israeli military strikes also disqualify in the Just War criteria of "proportionality of ends", "probability of success", "proportionality of means" and "discrimination and non-combatant immunity".

The military strikes in Gaza have resulted in a severe shortage of basic commodities like food, water, milk, meat and medicines. Banks have collapsed leaving people with virtually no money to buy provisions. The Israeli strikes on Palestinian government institutions like interior, justice, education, finance and culture have raised doubts not only about the question of "proportionality of means and ends" but also starkly about Israeli intentions. The attacks on the civilian police have resulted in a collapse of the internal structures of law enforcement in Gaza.

Though Hamas is no Lebanese Hezbollah, being far inferior in training and arms, yet the "probability of success" in terms of Israel’s so-called prime objective, stopping rocket launches from Gaza, is also under suspect. Though the military offensive might stop short range attacks, there is no guarantee that long range attacks will be thwarted. According to some senior Israeli security analysts, though the Israeli military planning is precise and clear, there is a diplomatic and political inability to state clearly the desired outcome/objectives of the war.

Worse still is the humanitarian disaster that Israel’s attacks have created in Gaza. Till date, more than 640 people including children have died in the air strikes and ground offensives. On January 6, an Israeli air strike on a UN school resulted in the death of 40 women and children taking shelter there. Though Israel has claimed that it has given prior warnings to Palestinian civilians of impending attacks, such warnings are ineffective as there is no where safe to go. A case in point is the Samouni family of Zeitoun, Gaza City who left their own house after being warned of impending air attacks by Israeli soldiers but perished in Israeli air strikes while taking shelter in a relative’s house.

Israel argues that Hamas utilizes civilians as shields but this does not negate the fact that from its early focused targeting of the Hamas’s military wing, the al Qasam Brigade’s15 training camps and limited port and costal facilities, Israel has gradually activated indiscriminate aerial bombings on civilian areas. The consequences have been the displacement of 80 per cent of civilians in Gaza with UN observers on the ground stating that a humanitarian tragedy is on the making there.

Case of India

While examining the Indian counter-terror response against Pakistan within the context of jus ad bellum, it is clear by now that India has a case for self defence.

Intelligence reports confirm that the 10 LeT men responsible for the Mumbai attacks came via the sea from Pakistan. Therefore, a military strike on terrorist camps in Pakistan is justified.

Second, India is a legitimate entity in the comity of nations and therefore has the right to declare war in self defence.

An Indian air strike will also fulfill the Just War criterion of "right intention" since India’s intentions are to specifically target terror camps in Pakistan’s territory in order to safeguard its own territory from attacks orchestrated by terror groups there.

However, a war at this juncture may not fulfill the Just War criteria of "force as last resort" as Pakistan has to be given some time to crack down on terror groups in its territory. There has to be enough peaceful communication between the wager state and the target state before the decision to use force is taken.

Significantly, India is making a serious effort in this direction by giving Pakistan an opportunity to act against terror outfits in its territory. On January 5, India handed over a 69 page "evidentiary dossier" to Pakistan providing detailed evidence of Pakistani hand in the Mumbai attacks. Pakistan, however, is not helping matters much by its belligerent approach of denying any links of its nationals to the Mumbai blasts despite being provided concrete evidence. Subsequently, Indian External Affairs Minister, Pranab Mukherjee is writing about the evidence gathered to his counter parts in other countries to put diplomatic pressure on Pakistan.

These are steps in the right direction regarding the "force as last resort" criterion. The laws of war clearly state that any decision to use force has to be preceded by a serious diplomatic effort providing the target state a chance to right the wrongs. Hence, India’s counter-terror response is by far superior to that of Israel within the context of Just War.

With regard to the criterion of "proportionality of ends", India will have to do a real-time "action-consequence" assessment of any military strikes on Pakistani based terror camps. If air strikes do take place due to Pakistan’s continued belligerent attitude, India has to ensure that such strikes enjoy precision and do not result in heavy "collateral damage" similar to that of the current Israeli offensive. Also, the end result after Indian strikes should not leave Pakistan worse off than what it is today.

The most crucial criterion of jus ad bellum is, however, the "probability of success" aspect. The question we need to ask here is: what is the "probability of success" of Indian air strikes killing terrorists staying in terror camps, for instance, in LeT headquarters in Muridke, or camps in Muzaffarabad, Lahore, Peshawar, Islamabad, Rawalpindi, Karachi, Multan, Quetta, Gujranwala, Sialkot and Gilgit? The "probability of success" appears low as the terrorists are fully aware of arguments in India for strikes on their camps and therefore must have deserted these camps by now and merged with Pakistani civilians.

The criteria of jus in bello is also very policy informative with regard to any military strikes. Indian air strikes could be disproportionate in terms of civilian deaths in Pakistan as some of the main terror camps are housed near civilian areas. This could result in intense internal unrest in Pakistan, more disturbances in India’s border areas like Kashmir and international condemnation.

The US "war on terror" in the aftermath of 9/11 in Afghanistan and Iraq has taken a huge toll on civilians. Afghanistan has suffered almost 1000 civilian casualties per year since 2001. Iraqi civilian deaths since 2003 are far more staggering. According to the Brookings Iraq Index (May 2003-March 2008), the US intervention in Iraq has resulted in 104, 317 civilian deaths. Israel’s current military offensive against Hamas may appear tough on terror but will result for sure in further militarisation of Palestinian society, anger at Israel and long term insecurity in the region.

Given this outcome, India therefore needs to tread with caution regarding the military option against Pakistan. Though there is a justified reason for going to war, Just War criteria like "probability of success", "proportionality of means and ends", and "discrimination and non-combatant immunity" rightly indicates the dangerous consequences of a rapid reactionary response. Also, given the porous nature of India’s borders and glaring loopholes in its internal security infrastructure, an Indo-Pak war may lead to further instability in the South Asian region. The possession of nuclear weapons by both states is an added reason for caution about any war talk.

Pakistan, however, needs to act more responsibly and undertake serious efforts towards dismantling the numerous terror networks existing in its territory. This is a debt it owes not only to itself but also to its South Asian neighbours as a whole.

Dr. Namrata Goswami is an Associate Fellow at the Institute for Defence Studies and Analyses (IDSA), New Delhi. The views expressed here are that of the author and not necessarily that of the IDSA.

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