By Richard L. Cravatts, PhD
Seeming to give credence to Orwell’s observation that “Everyone believes in the atrocities of the enemy and disbelieves in those of his own side, without ever bothering to examine the evidence,” the world’s attention has turned once again to the clash between Hamas and Israel, as the Jewish state launches its ground incursion into Gaza in what is being called Operation Protective Edge.
The remonstrations of its many and far-flung critics aside, Israel is not the international outlaw here, but a victim now involved in a defensive countermeasure to terrorism against its citizenry. In fact, in a 2008 report, Justus Reid Weiner and Dr. Avi Bell, two legal scholars at the Jerusalem Center for Public Affairs, noted that Hamas’s shelling of civilian targets within Israel’s borders-the direct cause of the current conflict-clearly violates international law and requires a military response from Israel, even though world observers have been oddly silent on the Palestinian incitement that is the cause of thepresent clashes.
“The Palestinian attacks,” they wrote, “violate one of the most basic rules of international humanitarian law, the rule of distinction, which requires combatants to aim all their attacks at legitimate targets – enemy combatants or objects that contribute to enemy military actions. Violations of the rule of distinction – attacks deliberately aimed at civilians or protected objects as such – are war crimes,” exactly what Hamas has been committing with its relentless rocket assaults.
Article 48 of Additional Protocol I of the Geneva Conventions of 1949 is very clear about this prohibited behavior of combatants, stating that “[i]n order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.” Since the rockets Hamas aims at southern Israeli towns are launched randomly into civilian enclaves, and lack the technical sophistication to reliably be aimed at military targets even if that was Hamas’s actual intention, each of the 12,000 or so rockets that have come into Israel from Gaza since 2005 (including over 1000 this month alone) represents both an causis belliand a war crime.
“It is a central principle of just war theory,” observed Dr. Michael Walzer, Professor Emeritus at the Institute for Advanced Study, “that the self-defense of a people or a country cannot be made morally impossible.” Israel faces that precise dilemma every time it is forced to suppress Palestinian aggression and protect its populace from unending rocket assaults, particularly since its actions are widely and almost immediately denounced as excessive, disproportionate, and in violation of international law.
Israel, which is condemned for committing “crimes against humanity” and human rights violations, not only waited years before responding to Palestinian terrorism, but then, in one of the most populous areas on earth, scrupulously followed the rule of distinction by precisely targeting Hamas terrorists and infrastructure, with minimal, though still unfortunate, collateral damage to the Gaza civilian population – a feat made all the more difficult by Hamas’s insidious tactic of embedding rocket launchers and armament stores within homes, apartment buildings, schools, and mosques in residential neighborhoods.
Combat in the crowded streets and alleys of Gaza obviously makes warfare more difficult for Israel, especially in its attempt to minimize civilian casualties while maximizing the suppression of enemy fire and attempting to neutralize Hamas’s ability to continue to pose a threat in the future. SinceHamas militants do not wear identifying uniforms, and embed themselves within civilian environments, Israel’s effort to maintain “distinction”- that is, scrupulously determining who is a legitimate military target and who is a civilian- is normally challenging and dangerous.And, knowing that the world community is apt to be harsh about any civilian deaths that result from Israel’s offensive, Israel has resorted to extraordinary measures to avoid the death of non-combatants, all of which compromise Israel’s strategic advantage while helping to minimize civilian deaths.
In fact, collateral damage – the accidental killing of civilians during military conflicts – is itself allowed by international law, provided the actions that caused the civilian deaths are not, according to Weiner and Bell, excessive in relation to the military need. But the fact that deaths occur in civilian populations – even what might be perceived as excessive deaths – are not in and of themselves indicative of violations of international law, and, says Weiner and Bell, “if a state, like Israel, is facing aggression, then proportionality addresses whether force was specifically used by Israel to bring an end to the armed attack against it.”
The practice of Hamas of using human shields, as well as storing munitions and weaponry in civilian neighborhoods and non-military buildings, also absolves Israel from some of the proportionality requirements, since the use of human shields and the perfidy of Hamas in the first place puts the fault for civilian deaths on it, rather than Israel. Israel indiscriminately pummeling Gaza with bombardment from the air-with many resulting civilian deaths-would violate the rule of proportionality and could be considered a war crime; Israel responding to rocket fire from an apartment building and, in the process, killing civilians (even a large number of them) who were in the building with Hamas combatants is allowed, as long as Israel’s intent was to achieve a military objective and not just to exact revenge or capriciously murder civilians.
One moral challenge in asymmetrical war is that observers in the world community intuitively feel that Israel’s disproportionate military strength makes the conflict fundamentally “unfair,” that because it is technologically and logistically able to exact more harm on the Palestinians, Israel should restrain itself to minimize enemy casualties. That may be a compelling emotional response, but it is, of course, not a legal or moral argument with any weight. In fact, it is precisely because of Israel’s military superiority that a rational adversary would have been deterred from attacking in the first place.
The fact that Hamas chose to challenge an adversary with disproportionate military capability indicates that the decision was either irrational or some type of collective death wish; in either instance, the Palestinians, and the world at large, cannot now expect Israel not to use every means possible to protect its citizenry from both immediate and future assaults by genocidal terrorists who wish to murder Jews and destroy the Jewish state. No nation is required to enter a suicide pact with its enemies, and no nation can be expected to wait until enemy rockets successfully reach an apartment building or school, forcing Israel to play, in the words of Harvard law professor Alan Dershowitz, “Russian roulette with its children.”
Richard L. Cravatts, PhD, President of Scholars for Peace in the Middle East, is the author of Genocidal Liberalism: The University’s Jihad Against Israel & Jews.