Recurrent Hamas rocket attacks upon Israeli noncombatants are terrorism. Such terrorism — all terrorism, irrespective of so-called “just cause” — represents a distinct crime under international law.
When Palestinian terrorism reflects populations that enthusiastically support terror attacks, and where the terrorists can find hospitable refuge among local populations, the legal responsibility for all ensuing counterterrorist harms lies with the perpetrators.
Under international law, which also happens to be part of the law of the United States, all Palestinian terrorists are hostes humani generis: “Common enemies of humankind.”
Hamas’ lack of distinction between “Jews” and “Israelis” is intentional. For Hamas, the true enemy is identifiable by religion, not territory, and is therefore irremediable. For “the Jews,” this means that the only way to avoid Arab terror is to disappear, or submit to Islamic control — to become persecuted, second-class dhimmi citizens in their own country, just as the indigenous Christians are now in Egypt and much of the Middle East.
“The safety of the People Shall be the highest law.” — Cicero, The Laws.
It is beginning again. As Hamas terrorists are attacking Israeli civilians with indiscriminate rocket fire, most recently in the southern city of Sderot, Israeli self-defense reactions are already being labeled “excessive” and “disproportionate.” As usual, international public opinion is quickly, if bizarrely, mobilizing against Israel’s underlying supposed “occupation” of Jews living in their own Biblical land.
But what of the facts? In Gaza, since 2005 at least, when every last Jew left, there has been no “occupation.” There are no Israelis in Gaza.
Systematic Hamas misrepresentations get progressively worse.
Any such blame, however, has no basis in law. Regarding “proportionality,” the actual legal requirement of proportionality contained in international humanitarian law (the law of armed conflict) has nothing to do with how many unfortunate deaths there might be on either side. Proportionality has nothing to do with each side incurring an equivalent number of deaths.
Luis Moreno-Ocampo, Chief Prosecutor at the International Criminal Court, investigated allegations of war crimes during the 2003 invasion of Iraq, and in 2006 published an open letter containing his findings. Included was this section on proportionality:
Under international humanitarian law and the Rome Statute, the death of civilians during an armed conflict, no matter how grave and regrettable, does not in itself constitute a war crime. International humanitarian law and the Rome Statute permit belligerents to carry out proportionate attacks against military objectives, even when it is known that some civilian deaths or injuries will occur.