Colonel Otakar Foltýn: The idea that every collateral damage is a war crime is a secular myth

 26. 11. 2023      Category: Interviews

The ongoing Israeli operation against Hamas terrorists in the Gaza Strip, which is a response to the previous rocket shelling of Israeli territory and the Hamas ground assault against military and civilian targets (the attacks began on the morning of 7 October 2023), raises a number of questions through the world and domestic media related to Israeli practices in the context of the aforementioned operation in the Gaza Strip, with terms such as disproportionate response, war crimes, etc., being increasingly used. In this context, we asked Colonel Otakar Foltyn, an expert on international law and hybrid conflicts, for an interview.

Picture: Israeli operation against Hamas terrorists still ongoing in Gaza Strip | Shutterstock
Picture: Israeli operation against Hamas terrorists still ongoing in Gaza Strip | Shutterstock

There are several UN resolutions that condemn Israel's actions in building new settlements, for example in the West Bank. Is it not precisely by these activities that Israel has escalated the fragile Palestinian-Israeli situation?

No. It is clear, however, that the radical actions of some populist Israeli politicians have done nothing to calm the situation and, in the case of support for radical settlers in the West Bank, have even drained the IDF's military capabilities from the Gaza Strip. Of course, some of the activities of the radical settlers have provided Hamas with ammunition to justify what are in fact indefensible acts. But in my judgment, it had no effect whatsoever on the 7 October attack itself. Hamas would have done it even if there were no radical settlers.

In your view, is Israel committing war crimes in its operations against Hamas?

There is no war in which either side has not violated some norm. With such an intensive deployment, there will simply undoubtedly be mistakes and possibly punishable excesses by individuals. The fundamental difference is one of doctrine, system and proportion. Hamas committed not only a massive, deliberate and most serious imaginable violation of international law on 7 October, but also of the most basic humanity. It has done so programmatically, long term and deliberately. Moreover, it is quite deliberately using its own population as de facto human shields. Israel, on the other hand, is a democratic country with many safeguards and control mechanisms for its military. However much they have resorted to intense use of military violence, I have not observed any systemic violations of the law of armed conflict. They generally adhere to the principle of distinction and proportionality and clearly try to minimize civilian harm. This is not only because of legal obligations, but also because it is in their interest to do so. Hamas wants the IDF to cause as much civilian damage as possible, and the Israelis are smart enough to know that they must not do what the enemy wishes.

Is it even possible to conduct a military operation in an area as populated and urbanised as the Gaza Strip without collateral damage?

It cannot. The idea that any collateral damage is a war crime is a layman's myth. The law of armed conflict respects the fact that it is impossible to eliminate civilian damage altogether. It therefore sanctions only those civilian damages that are unnecessary and disproportionate to the military advantage achieved. Especially in such a densely built-up area, civilian damage is understandably not small. But the obligation is to limit them to the minimum necessary. Unfortunately, Hamas has, by its brutality, forced Israel into the dilemma of whether to defend itself (and necessarily cause collateral damage) or not. Then, of course, it would immediately become vulnerable and cost many times more lives.

Are we witnessing a new wave of antisemitism?

That, in my view, is a broader question that I don't have enough information to answer. It is undoubtedly a qualitatively new form of anti-Semitism, but it requires a deeper anthropological and socio-psychological explanation. But at the very least, I don't understand some activists being able to simultaneously defend the rights of the LGBT community and turn a blind eye to Hamas. I suggest they try kissing a person of the same sex in multicultural and tolerant Israel and then try the same in front of Hamas headquarters. The important thing is not to mess up the order.

How do you perceive the level and extent of the disinformation war from both the Palestinian and Israeli sides? Why is the world and our media listening to the Palestinians?

Israel has a significantly stronger, better armed and incomparably better trained army that Hamas cannot match. If it has a chance anywhere, it is in the information environment and the attempt to succeed propagandistically and politically. That is what it has been doing for a long time, and as long as a section of the Western population falls for its propaganda, it is not without hope that it can somehow resist. Hamas has long been relatively adept at information operations and is now reaping the rewards.

Why do you think that the BBC, which has been one of the world's most reputable news channels, has long been reluctant to label Hamas a terrorist organisation and has relativised the attacks on Israel. Similarly, it has long been unwilling to admit that the explosion in the Gaza hospital was a 'friendly fire' by Hamas.

This is a very sad failure by an otherwise respected media outlet and it must change its approach if it is to remain relevant. Hamas is a purely terrorist, degenerate organisation and, until it is destroyed or loses the support of the majority of the population of the Gaza Strip, it will compromise even those demands of the Palestinian Arabs that would otherwise be legitimate.

Who do you think is behind the war in Israel?

Well, of course, the one who currently has the biggest stake in the aggression of Hamas in the region is the Islamist radicals in the rich Arab countries and, above all, Iran, which directly controls its Hezbollah movement in Lebanon, but paradoxically has a very strong influence on the Sunni Hamas.

Is it only religion that plays a role in this conflict, or are there other objectives involved, such as economic or political ones?

Religion is, of course, an important symbolic tool that is actually more important from a cultural than an ideological point of view. But the real cause is mainly Iran's interests and, of course, the intransigence of the Islamist radicals in the region. But that is oversimplifying things.

Is there any connection between the war in Israel, Ukraine and the Armenian-Azerbaijani conflict?

Quite narrow. Russia, of course, could use another focus of tension; for one thing, the conflict in the Middle East is with iron regularity driving down oil prices and therefore the Kremlin regime's revenues, and for another, the public, tired of the war in Ukraine, is of course shifting its attention elsewhere. The Armenian-Azerbaijani conflict was, after all, a rather marginal affair, with the Azeris, backed by Turkey, simply taking advantage of Russia's weakness in the region.

Is it realistic that the region will be risk-free in terms of Hamas' anti-Israel activities once Israeli operations in Gaza are over?

It has not been risk-free for over 80 years and will not be for a long time.

Could it be that the IDF's ground operations in the Gaza Strip will turn into a protracted war, for example, as in Chechnya at the time, in the context of the conflict there with the army of the Russian Federation?

If we are talking about the phase of gaining military control and thus effective occupation, Israel can manage that in a matter of months. But the stabilisation and long-term de-escalation phase will be a long one. In any scenario. 

In your opinion, can Hamas be completely suppressed or eradicated? After all, it is very difficult to fight effectively against the guerrilla style of warfare that Hamas is waging.

That does not mean that it cannot be done. Historically, most counter-insurgency operations have succeeded. I mean, it is not impossible. But it depends on how you define success. If it is a parametric limitation on Hamas' ability to threaten Israel, then the IDF can do it. Either by systematically destroying Hamas' heads or by destroying its military structures. Far more difficult, however, will be eradicating Hamas support in a frustrated Palestinian population massaged for years by radical Islamism.

Israel has said that after the end of the Gaza operation it 'wants nothing more to do with Gaza'. What, in your opinion, can we specifically imagine by this statement?

I do not know. I believe that it is a threat to the Palestinian Arabs that they will no longer be able to supply Gaza, but this is not realistically possible because the Gaza Strip has long been dependent on Israel for all basic commodities, especially water and energy. At the same time, however, Israel's approach may hold the promise that the vision of a Palestinian state is not unrealistic. But Israel cannot say that directly at this point. Hamas succeeded in completely ruling out any peaceful solution with the attack on 7 October. The destruction of Hamas is therefore a prerequisite for the start of de-escalation. Given what Hamas has done, it is of course impossible that Israel will tolerate it at any time in the future.

 Author: Michal Pivoňka