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How To Kill Children Under Siege Legally

Some of the most respected publications in Britain and America have resorted to obscure legal grammar such as the use of commas to justify killing children ‘legally’ in Palestine.

Smoke rises following an Israeli airstrike on buildings near the separating wall between Egypt and Rafah, southern Gaza Strip,. (Photo: AP // South China Morning Post),

The late United Nations chief Kofi Annan once said: “There is no trust more sacred than the one the world holds with children. There is no duty more important than ensuring that their rights are respected, that their welfare is protected, that their lives are free from fear and want and that they can grow up in peace.”

The world is, at the moment, witnessing a sustained massacre of children before our very eyes, week after week, month after month, that will surely go down in history as one of humankind’s true horror shows. But the merciless perpetrators and their shameless apologists in the West are outraged that the rest of the world has now refused to stand aside and pretend mass murders are morally and legally justified.

What Israel has been doing in Palestine is completely beyond the pale. But what has disgusted the rest of the world in equal measure is the consistent response of much of the mainstream Western media and some governments.

In defiance of practically the whole world, Israel launched a heavy assault on Rafah, the last refuge of Palestinians in southern Gaza. On Sunday, it bombed a refugee camp, a place it designated as “safe” only last week. About 50 Palestinians were killed, many of them children.

Since the launch of the Rafah operation, some of the most respected publications in the Anglo-American news media have rushed to defend it. Perhaps this is what Israel’s legions of apologists and war-crime deniers mean when they ask, rhetorically, what country in the world has a military that warns civilians to evacuate before launching an assault?

As usual, Israeli forces claimed there were Hamas terrorists in the camp. Haven’t you noticed that every time there are mass casualties caused by an Israeli strike, “some terrorists were there” has been the default excuse?

The latest bombing set ablaze tents housing families with many children, and also including those of the noble but much-maligned UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) office.

The number of dead is not unusual in this kind of Israeli strike, which has been normalised and is not considered particularly high among Israel’s accomplices in the West, whether in the media or government.

What makes this strike different is that within hours, photos of the charred bodies of children and a child with its head blown off went viral. Some of those photos landed in my inbox for me to wake up to yesterday.

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I didn’t want to look at them. I know it’s something you can’t unsee ever again. But I felt obliged to look at the horrors since I have been writing columns about them for months now.

So, this is what dead children in a war look like. It’s ugly and revolting. They are no longer cute and cuddly. Get rid of them please. Out of sight, out of mind!

Mainstream media have a long-standing editorial policy not to show horrific images of war dead, with missing limbs and stomachs torn open. The justification is that such images or footage are gratuitous and sensational and that they will only offend without added-on journalistic value or information. Worse, they can serve as propaganda. That’s true, sometimes, but not always, not today.

Today, they can be very informative and of high moral value.

And often, I would argue, citizens of countries that wage war year after year, or finance and arm proxy conflicts that go on forever in some godforsaken hellholes, have a special responsibility to look at such images that show the physical consequences of the policies carried out by their governments in their name.

In truth, many of them probably would look, and that’s why the governing and media elites want to make sure they don’t. After all, what normal human beings would consent to actions and policies that produce such horrors?

However, for better or worse, the age of mass media when it was easy to control the narrative is long gone. Thanks to social media and the proliferation of hundreds of thousands of individual voices, those pictures from Rafah are now in the inboxes of many people.

Some of the West’s most respected publications have not only been defending the Rafah assault, but also the bombing of the refugee camp on Sunday. Their job, though, is getting tougher.

A staff writer at the Atlantic magazine wrote earlier this month: “Even when conducted legally, war is ugly. It is possible to kill children legally, if for example one is being attacked by an enemy who hides behind them.”

Well, good to know that those children with missing limbs and heads were “killed legally”, as opposed to what, illegally? But who’s to decide? Some hack and his editors at the Atlantic? Good to know such people are so eager to embrace a legal defence for those who kill children under international law.

The Telegraph, the conservative pro-Israeli British broadsheet, rushed out a column on Sunday from the legal director of UK Lawyers for Israel Charitable Trust – a strange charity, whose main job now seems to be to justify Israel’s war in Gaza.

Its legal director, a barrister, argues that most of the world is wrong about the latest “provisional measures against Israel” by the International Court of Justice (ICJ), in halting the military assault on Rafah.

“The court required that Israel ‘shall, in conformity with its obligations under [the Genocide Convention] … halt its military offensive, and any other action in the Rafah Governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part’,” she wrote.

“This amounts to a directive by the court, consistent with its previous approach, that Israel abide by the Genocide Convention. Israel has been clear that it has always done so … In this context, the pointlessness of the court’s order simply underscores the political game the ICJ is engaging in at the behest of South Africa.”

So it’s now pointless to try to save civilians’ lives, especially children’s, in a war zone? I wonder if the learned director and barrister would write the same if those dead children were, say, Israeli, British or American?

But she actually does have a point, a legal point. As my learned correspondent John Whitbeck, an international lawyer, explains, “commas matter”. I can do no better than to quote him.

“It’s all a question of commas,” he wrote. “As all lawyers know, commas can have a profound impact on meaning by determining whether a phrase is ‘restrictive’ or ‘descriptive’.”

Well, I am sure not “all” lawyers, but well-trained ones.

Here goes: “The ICJ’s order relating to Israel’s Rafah offensive requires Israel, ‘in conformity with its obligations’ under the Genocide Convention, to ‘immediately halt its military offensive, and any other action in the Rafah Governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part’.

“If there were no commas in this order, the ‘which … part’ phrase, which the court presumably judged necessary to include since it was ruling in the context of compliance with obligations under the Genocide Convention, would be restrictive but apply only to ‘any other action’, and the order would unambiguously require an immediate halt to Israel’s military offensive in the Rafah Governorate.

“If the first comma were omitted, the ‘which … part’ phrase would be descriptive, and the order would unambiguously require an immediate halt to Israel’s military offensive in the Rafah Governorate.

“If, ‘and any other action’ were omitted, the ‘which … part’ phrase would be descriptive, and the order would unambiguously require an immediate halt to Israel’s military offensive in the Rafah Governorate. (It is unlikely that the reference to ‘any other action’ was added with the express intention of rendering an otherwise obligatory order non-obligatory.)

“However, the inclusion of both commas makes the order not totally unambiguous, and, if one interprets it on a stand-alone, out-of-context basis, it is not totally laughable to argue that the ‘which … part’ phrase is restrictive with respect to both ‘any other action’ and the ‘military offensive’ in the Rafah Governorate, thereby rendering the halt of all aspects of Israel’s military offensive in the Rafah Governorate not necessarily obligatory.”

That, in a nutshell, is the real basis of the argument from UK Lawyers for Israel Charitable Trust. It’s certainly legal, but is it human?

And there you have it, two glaring examples of the Western mainstream media in action. Hallelujah!

[Alex Lo has been a South China Morning Post columnist since 2012, covering major issues affecting Hong Kong and the rest of China. A journalist for 25 years, he has worked for various publications in Hong Kong and Toronto as a news reporter and editor. He has also lectured in journalism at the University of Hong Kong.]