Refuting the ‘Disproportionality’ Libel Against Israel Crystallizing the Jewish State’s right to self-defense. Richard L. Cravatts
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 launched its defensive air offensive into Gaza to suppress a deadly barrage of 4360 rockets that killed 10 civilians in Israel and injured 330 others. And, predictably, as the body count rose on the Palestinian side, the moral arbiters of acceptable political behavior began condemning the Jewish state for its perceived abuses in executing its national self-defense.
Forgetting that Israel’s current campaign was necessitated by ceaseless rocket and mortar assaults on its southern towns from Hamas-controlled Gaza, international leaders and diplomats initiated their moral hectoring of Israel as it attempted to shield its citizens from harm. Five so-called experts from The UN’s Office of the High Commissioner for Human Rights (OHCHR), led by Special Rapporteur Michael Lynk, released a statement which suggested that “This most recent violence has a depressingly familiar pattern to it.” And what was the familiar tragedy? Not that Hamas had tried to murder Israeli civilians with no justification, but that “Israel and Palestinian armed groups in Gaza exchange missiles and rockets following dispossession and the denial of rights in the occupied Palestinian territory, with Israel’s far greater firepower inflicting far higher death tolls and injuries and a much larger scale of property destruction.” [Emphasis added.]
In addressing a special session of the 47-member UN Human Rights Council, UN High Commissioner for Human Rights Michelle Bachelet was similarly condemnatory of Israel’s military behavior. While begrudgingly admitting that Hamas’s “indiscriminate” firing of thousands of rockets constitutes “a clear violation of international humanitarian law,” Israel’s response was equally questionable, especially the targeted strikes on buildings that were said to house terrorists and armaments. “Despite Israel’s claims that many of these buildings were hosting armed groups or being used for military purposes,” Bachelet noted, “we have not seen evidence in this regard.” And then, in creating a moral equivalence that is unsurprising when Israel is involved, she solemnly announced that Israel, too, may be condemned for its military misbehavior, that “If found to be indiscriminate and disproportionate,” Israel’s defensive “attacks might constitute war crimes.” [Emphasis added.]
The words “indiscriminate” and “disproportionate” are the most insidious refrains, uttered only when Israel’s enemies are killed (certainly not when Jews are murdered), and suggesting that Israel’s military response is too aggressive, that the force and effect of the sorties into Gaza are beyond what is permitted under human rights law and the rules of war.
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, Justus Reid Weiner and Dr. Avi Bell, two legal scholars at the Jerusalem Center for Public Affairs, have 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 the present 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. Hamas militants not only commit a war crime each time they lob a rocket or mortar into Israel from Gaza by virtue of the fact that the targets of those attacks are specifically and purposely civilian, not military, assets—a violation of the “distinction” rule—but also, in not wearing military uniforms and often posing as civilians, Hamas terrorists are also committing another crime, that of perfidy.
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 nearly 20,000 rockets that have come into Israel from Gaza since 2005 represents both a casus belli and war crimes.
“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. Perceived as having unjustly dispossessed the Palestinians and accused of still occupying both the West Bank but also Gaza (and holding the latter under siege), and collectively punishing the Palestinian Arabs living there, Israel has been stripped of its moral standing in the community of nations and so its attempts at self-defense are at best tolerated.
Rather than serving as a deterrent against attacks of terrorists, Israel’s military strength and capabilities are instead looked at as an unfair advantage in the asymmetrical war in which it finds itself. Few leaders in the West and none in the Arab world ever condemn Hamas for its chronic, unlawful terroristic behavior toward Israel, but the moment Israel undertakes military action it receives strict warnings for restraint, censure for its success in neutralizing Hamas strongholds, and eventual condemnation for the inevitable deaths of civilians—the collateral damage that is the tragic byproduct of conflicts fought in neighborhoods rather than battlefields.
Israel, which is promiscuously 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. Since, as mentioned, Hamas’s terrorists do not wear identifying uniforms, and, additionally, 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 understandably challenging and dangerous.
And, knowing that the world community is apt to be harsh about any civilian deaths that result from Israel’s offensive—even though it Hamas who has created the circumstances by which those civilians will and have perished—Israel has resorted to extraordinary measures to avoid the death of non-combatants, including “knocking” on roofs to warm of imminent bombardment, distributing flyers, and using other warning techniques, all of which compromise Israel’s strategic advantage while helping to minimize civilian deaths. Even so, when the inevitable Palestinian civilian deaths occur (which seem to be a welcomed part of Hamas’s cognitive war against Israel), Israel is accused of violating the rule of “proportionality,” the other aspect of warfare which international law requires that prohibits a military response that causes more civilian deaths than would be considered necessary in achieving a set military objective.
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.
Even errors which lead to the death of civilians are acceptable, as long as the military purpose was the motivating factor in the assault, since, as Jonathan F. Keiler, a former captain in the Army’s Judge-Advocate General Corps, noted, “we do not determine criminality based on outcome, but intent.”
Proportionality also does not require that the number of deaths—either of Hamas militants or Palestinian civilians—be equal to the number of deaths suffered by Israel, or to damage done to Israeli infrastructure or military targets. 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.”
Indeed, the very tactics of terrorism force nations to look at how sovereign states defend themselves against rogue actors. “Modern terror organizations” like Hamas, noted Professor Boaz Ganor, founder and executive director of the International Institute for Counter-Terrorism in Herzliya, “do not see themselves as being obligated to humanitarian international law . . . From this perspective, the states dealing with such terrorists find themselves being Gulliver, with their hands and legs bound by morality and by modern combat principles, fighting dwarfs that attack without pause and in violation of every legal or moral principle.”
Israel, once again, is faced with what seems to be a morally impossible self-defense.
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