By Ted Belman
The Assault on Israel’s Right to Self-Defense was described by Abraham Bell in his article on International Law and Gaza. Dr. Avi Bell is a member of the Faculty of Law at Bar-Ilan University, Visiting Professor at Fordham University Law School, and Director of the International Law Forum at the Jerusalem Center for Public Affairs. He clearly advised that Israel has the right of self defense and described the law as it pertains.
But I was left with some nagging questions. What do the principles and rules he set out mean in practice. I wanted to know if Israel had no choice but to invade or whether it could just use artillery and bombs even unintelligent inexpensive bombs. I fully understood that the siege was legal and so were targeted killings though our “international friends” disagree.
I asked Bruce Tucker Smith, JD, LL.M. (International Law), Lt Col USAFR (ret), the Co-author “Seventh Psalm”.
Here is his considered opinion.
Criticism leveled at Israel for her response to terrorist attacks by Hamas in the Gaza says more about those who criticize Israel than it does about the legality of the reprisals.
Can Israel response to Hamas’ attacks? In what strength? By what means? These questions are traditionally answered in the salons of international legal debate, by an examination of the status of the combatants.
We therefore ask: What is Gaza? What is Hamas? Answer these questions honestly, and there is little room for discussion or debate about the legality or legitimacy of Israel’s military responses to date…or her options in the future. Answer these questions honestly and you will have taken a long step toward resolving the endless criticism of Israel’s military response to the endless stream of rockets cascading into Israel from the west. (In fact, more than 5000 since Israel ceased her occupation of the Gaza.)
Gaza is not a formally-defined, internationally-recognized state. It is, at best, a protectorate or a territory…but certainly it does NOT enjoy the status of international “statehood” that would entitle such an entity to claim sovereignty over her national borders and the land within.
Hamas, of course, is the Islamic Resistance Movement, which became active in the early stages of the intafada. It operates primarily in the Gaza (and also in Judea and Samaria). Its stated goal: the eradication of the Israeli people and the establishment of an Islamic Palestinian state in place of Israel. Hamas, of course, has the outright backing of Iran in its genocidal efforts to murder Israelis.
What Hamas is NOT, is a recognized armed force operating under the aegis of a duly-elected state; it is not a signatory to any of the Geneva Conventions; it is not a member of either the United Nations or the Security Council; it does campaign openly under a national flag and it’s operatives don’t wear recognized badges of nationality or military rank. In the legal parlance of the “Law of War,” Hamas, as an entity, is not a recognized “combatant” and, hence, not entitled to the protections of the Geneva Conventions. The latter cannot be strongly enough emphasized: Hamas, and the people who support or conceal its efforts, are entitled to NO special protections under any aspect of the Law Of War, of which the Geneva Conventions are but a part.
By contrast, those nations, armies or entities who DO ascribe to and respect the Geneva Conventions; who DO campaign under a national flag and chain-of-command ARE entitled to the special protections of the Conventions!
As the Olmert government has repeatedly said, Israel will not negotiate with entities that do not recognize the legitimate demands of the international community, as voiced through the United States, European Union, the United Nations and Russia! Hence, Israel’s use of force against Hamas.
The United Nations Charter, Article 51, clearly and plainly provides Israel with the necessary legal armor to pursue and rout Hamas. “Nothing in the present Charter,” Article 51 reads, “ Shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”
Other than a few weak-worded Resolutions, the Security Council has failed to take action to protect Israel’s safety and sovereignty—hence, she is free to act as she will militarily! And, in my opinion, she is free of many of the traditional limitations on the use of military force – at least where Hamas is concerned.
The oft-misunderstood “rule of proportionality” is usually cited, wrongly, by the left in critique of Israel’s operations against Hamas in Gaza.
One must recognize that the “rule” is, in fact, no rule at all. It is not clearly defined in any statute or treaty. Rather, it can best be described as the resulting synthesis of “customary international law” which is derived from a reading of the ancient Hague Conventions (written in an era when warfare was defined as set-piece battles, conducted by brightly-clad armies amassed on the sunlit fields of Europe and the 1949 Geneva Conventions which, in part, proscribe armed reprisals against civilians. Sadly, the “rule” is frequently bent or twisted to meet the ends of the particular sophistry at hand.
In its simplest application, the “rule” generally means that an army cannot inflict collateral damage upon an enemy combatant (or the surrounding civilian populace) in excess of the legitimate military advantage conferred upon the attacking army. In other words, a nation’s military response must be necessary and proportional to the injury suffered.
“Legal scholars” frequently say, “If someone punched you in the nose, you don’t burn their house down.” To be sure, those are seductive words, rationally attractive, and intellectually inviting…but utter hokum in the face of reality. Taken to its logical absurdity, such a definition of the “rule” would prevent an army from EVER amassing superior firepower against an enemy, lest that army be accused of a disproportionate use of force! The fact is, wars are won when one side utilizes a disproportionate amount of force to defeat an enemy…otherwise, the Third Reich would still sit in power with the Allied armies resting somewhere near the Seine River.
The “rule” is often manipulated in the court of public opinion, particularly in the era of “asymmetrical warfare,” the current buzz-term which describes the conflict between western nations who possess large standing armies and billion-dollar gadgetry and terrorist groups who employ simple, terroristic, and patently illegal means of waging armed conflict.
The world’s (leftist) academic “elite” and media sympathetic to Islamic fundamentalism almost always focus on Israels’ response to terrorism! No doubt, leftist apologists are motivated by some misplaced, misguided sense of “unfairness” that a well-organized, well-trained and well-equipped IDF would pursue and kill Hamas terrorists who intentionally clad themselves in civilian attire and hide their operations in schools, hospitals and Mosques.
The simple fact is that the “rule” of proportionality shrinks to near inapplicability when Hamas uses civilians as shields or when it purposely attacks the innocent—the central most effective tools in the terrorist’s arsenal.
Another common misstatement in the public discourse surrounds the killing of civilians. Of course, NO one would countenance murder and nothing in this essay should be construed as a brusque dismissal of civilian deaths …but a distinction in the Law of War regarding civilian deaths is frequently and intentionally ignored. The Law of War proscribes the INTENTIONAL targeting of civilians, not the inadvertent and unfortunate loss of civilian life in an armed conflict. Yet, whenever inadvertent civilian deaths DO occur in the Gaza or in the West Bank or in Baghdad, the left immediately and uniformly decries those deaths as “war crimes” – which they most certainly are not!
Such is the nature of public debate, particularly in the wake of 9/11.
In short…Israel’s defense forces are entitled to use whatever means is at her disposal to search out and destroy terrorist operatives. Nothing in international law precludes a vigorous, intense and effective military campaign to destroy terrorist operations. That means, Israel may use air and ground-artillery resources –as she will–against those Hamas operatives (I hesitate to us the word “military” – since Hamas is NOT a recognized military force.) which are used to inflict casualties upon Israel.
That means Israel may use her army in large or small measure to attack any place or person that attacks Israel. That means Israel can bombard Hamas targets as militarily necessary to render it impotent against a subsequent wave of Israeli soldiers. Although politically preferable, nothing in international law absolutely requires Israel to use “smart” munitions in its operations against Hamas.
If Hamas attempts to shield its operations with truly innocent civilians or children—it is Hamas and not Israel, who has committed an atrocity –an actionable war crime–of the most heinous proportion!”.
In sum: Israel is free to employ ALL munitions, tactics, equipment and personnel in her arsenal to defend herself against the outlaw Hamas terrorist organization. Short of the intentional targeting and murder of truly uninvolved and innocent civilians, Israel can (and should) operate as freely as she desires to protect her territorial sovereignty and the lives of her citizens.
So, it is not international law that Israel is concerned about. The Government of Israel is more concerned about the cries of the international community than the cries of its children and mothers. It is more concerned with the lives of Arabs than the lives of its own citizens including its soldiers.
Israel has the right to bomb Gaza and use artillery. It’s about time they did.
It is morally repugnant to sacrifice your own soldiers to save the lives of your enemies. Forget about world opinion.