“And he [Samson] said unto them [the Jewish people]: ‘As they [the Philistines] did unto me, so have I done unto them.’” (Judges 15:11)
THE JUSTIFICATION FOR ISRAEL TO ATTACK THE CIVILIAN POPULATIONS OF ITS ENEMIES
Although Israel’s State enemies (e.g., Syria, Lebanon and Iran) and non-State enemies (e.g., Hezbollah, Hamas, Islamic Jihad, the Popular Front for the Liberation of Palestine, and elements of Fatah) have, by direct or indirect means, intentionally attacked Israel’s civilian population (i.e., its Jewish civilian population) numerous times over the past decades, traditionally such attacks have hardly been acknowledged, let alone condemned, by the United Nations, by self-described “human rights” organizations, by international media outlets, or by other elements of the international community – despite the fact that such attacks are perpetrated in furtherance of a grand plan to destroy the Jewish State. Conversely, false accusations that Israel, in responding to such onslaughts, has intentionally attacked the civilian populations of its genocidal enemies have traditionally elicited, not only worldwide condemnation, but also worldwide demonization, of the Jewish State. Moreover, Israel’s more recent attempts to defend itself from its enemies has led the U.N.-affiliated International Criminal Court to consider indicting the military and political leaderships of Israel (but not the military or political leaderships of its enemies) for illusory war crimes. This has created a legal and moral Absurdity, whereby the international community has implicitly endorsed attacks against Israel’s civilian population as inherently legitimate, while it has implicitly barred Israel’s exercise of self-defense as inherently illegitimate.
Two intertwined rationales have been offered to justify this Absurdity: (a) Israel’s enemies cannot be expected to adhere to international norms of conduct, including the international rules of war, because these enemies exist outside of Western culture, which embodies the norms of liberal democracy, and (b) Israel has no right to defend itself from attack, because it “occupies” Judea, Samaria, the eastern portion of Jerusalem, the Golan Heights and (despite its complete withdrawal therefrom in August 2005) Gaza. The first rationale reeks of a species of racism sometimes labeled as the “soft bigotry of low expectations”, while the second rationale constitutes a blunt instrument to force Israel to return to its indefensible 1949 armistice demarcation lines (which, with respect to Gaza, it has already done). Both rationales pervert, and thereby make a mockery of, international law.
In light of the foregoing, might there be a justification for Israel to actually do the very thing of which it is constantly being falsely accused, namely, to attack the hostile civilian populations of its enemies? And, if so, under what circumstances?
At the outset, it is noted that international law -- unlike the Torah -- does not descend from Heaven.
Neither is international law the product of legislation enacted by a world government via a world legislature -- as such entities do not exist. Although the United Nations, acting through the U.N. Security Council, can issue theoretically-binding resolutions pursuant to Chapter 7 of the U.N. Charter, any proposed resolution can be vetoed by any one of the five permanent members of the U.N. Security Council (i.e., United States, Russia, China, Britain and France), and the implementation of an issued resolution relies entirely upon voluntary compliance therewith by a critical mass of individual U.N. member States. Alternatively stated, the United Nations is neither a world government nor a world legislature. Rather, the U.N. is a consensual organization -- unfortunately infested with extreme bias against the Jewish State -- that collects annual dues from its individual member States and acts in accordance with the preponderance of the self-perceived national interests of each of those member States, with the veto-wielding permanent U.N.S.C. member States having greater influence over its deliberations than its non-veto-wielding temporary U.N.S.C. member States, and with the latter having greater influence over its deliberations than non-U.N.S.C. member States. Moreover, notwithstanding the foregoing, any member State has the sovereign right to withdraw from the U.N. and to thereby cease paying dues thereto.
So, what is international law and to what extent does it bind sovereign States?
The term “international law” is a misnomer, as -- there being no world government and no world legislature -- such international legislation does not exist. Rather, what is labeled as “international law” is something else entirely, namely, an instrumentality of multi-party contract formation, whereby one signatory State agrees to limit its sovereign freedom of action by adhering to the norms set forth in a particular treaty, provided that all other signatory States do the same. With respect to the several treaties that comprise the international rules of war (which are also known as “International Humanitarian Law”), the norms set forth therein limit the brutalities that belligerents are permitted to inflict upon each other’s military forces and prohibit intentional attacks upon each other’s civilian population and infrastructure. The web of protections ostensibly guaranteed to each belligerent by the international rules of war is precisely what has motivated numerous States to promise adherence thereto, as those rules theoretically afford each belligerent a way to limit the harm to itself during its conduct of (and especially if it begins to lose) a war. However, the irony of the international rules of war is that those States (i.e., liberal democracies) that are most likely to obey those rules rarely conduct war against each other, while those States (i.e., totalitarian polities) and non-State actors (i.e., terrorist groups) that are least likely to obey those rules frequently conduct war against each other and against at least one liberal democracy (i.e., Israel), which state of affairs, in practice, renders the international rules of war completely ineffective.
Since the genocidal war against Israel is being waged by totalitarian States and terrorist groups that do not adhere to the contract-based rules of war, Israel has been placed in the unenviable position of continuing to obey rules that its adversaries routinely violate, thereby incentivizing the latter to mercilessly attack Israel’s civilian population centers, as they know that they will not be internationally penalized for doing so, and that Israel will not respond in kind, but can nonetheless be falsely accused of having done so.
One example of this asymmetry is the war being waged by Hamas-ruled Gaza against Israel’s civilian population centers. By embedding virtually all of its missiles and mortars within its own civilian population centers (e.g., inside or adjacent to homes, mosques, schools, and hospitals), Hamas and/or its ally Islamic Jihad has been able to fire missiles and mortars at Israel’s civilian population centers under the correct assumption that Israel will be inhibited (by the nearby presence of Gazan civilians and Gazan civilian infrastructure) from decisively retaliating (i.e., by completely destroying the senior and operational personnel of these terrorist groups, their weaponry, and all related infrastructure – wherever found). Moreover, international organizations, including the U.N., consistently label Israel’s restrained response to Gazan aggression as the perpetration of war crimes against Gaza, while refusing to even reference -- let alone condemn -- such Gazan aggression. Alternatively stated, Israel is consistently condemned despite its routine adherence to the rules of war (to the detriment of its soldiers and civilian population), while Gaza is never condemned despite its routine violation of the rules of war (to the benefit of its terrorist militias and civilian population).
The contract-based rules of war are not meant to be a suicide pact. On the contrary, these rules exist for the mutual benefit of their signatory States (as well as for those non-signatory States which nonetheless choose to adhere thereto). As the principle of mutuality of restrictive conduct constitutes the raison d'être for any State’s adherence to the international rules of war, Israel is neither legally, nor logically, nor morally obligated to continue its unilateral adherence thereto. Instead, Israel is entitled to proclaim that it will obey only those rules of war that are also obeyed by its enemies, thereby restoring the principle of mutuality to the international rules of war. This means that if one of Israel’s enemies (directly or indirectly) attacks Israel’s civilian population and/or infrastructure, then Israel will be privileged to decimate that enemy’s civilian population and/or infrastructure. Such a change of policy, if implemented, would constitute a powerful deterrent against violation of the international rules of war by Israel’s (State and non-State) enemies and would likely be successful in terminating the attacks that Israel’s enemies have relentlessly perpetrated against its civilian population centers since the State’s rebirth in 1948. This prescription is hardly theoretical, as employment of this very policy terminated World War II (i.e., via the decimation of portions of the civilian populations and infrastructures of Nazi Germany and Japan). It is indisputable that such punitive military actions also shortened that War and thereby saved more lives (including the lives of U.S., British and Russian soldiers) than they cost.
Moreover, during British administrative rule in Mandatory Palestine from 1920 to 1948, this very policy was employed against Arab terrorists who habitually detonated bombs at Jewish marketplaces, thereby killing and maiming scores of Jews, who were innocent civilians. In retaliation for these attacks against Jewish civilians, Jewish insurgents, led by David Raziel, detonated bombs at Arab marketplaces, thereby killing and maiming scores of Arabs, who were also innocent civilians. Consequently, the Arabs abandoned that particular bombing campaign. In recognition of the many lives saved by Raziel’s conduct, every major city in Israel has a street named after him; and there is even a village near Jerusalem that bears his name (i.e., Ramat Raziel).
Yet, isn’t it immoral to punish an enemy’s civilian population (even if largely hostile to Israel) for the conduct of its government? No. What is actually immoral (as well as illogical) is for Israel to continue to place the safety of that enemy’s civilian population and infrastructure above its own. David Raziel well understood this moral and common-sense principle. Furthermore, the biblical judge Samson succinctly enunciated this principle when the Jewish people confronted him over the havoc that he had been wreaking upon the Philistines. As the Hebrew Bible records: “And he [Samson] said unto them [the Jewish people]: ‘As they [the Philistines] did unto me, so have I done unto them.’” (Judges 15:11)
Notwithstanding the foregoing, it would not be moral for Israel to adopt such a radical change of policy in secret, and then implement it without prior warning to its enemies. On the contrary, Israel must publicly announce such a policy, together with its rationale, to the World, so that its enemies will have time to ponder the potentially-disastrous consequences to their civilian populations and infrastructure of continuing to attack Israel’s civilian population and infrastructure. If they believe that Israel has the fortitude to implement this change of policy, then they may choose to limit any future attacks on Israel to military personnel and related assets, in compliance with the international rules of war. Contrariwise, if they disbelieve that Israel has the fortitude to implement this change of policy, then they will have to be subjected to a demonstration thereof.
Yet, won’t the international community condemn and punish Israel if it refuses to unilaterally adhere to the international rules of war? Yes. However, as Israel is already being internationally condemned (e.g., by most components of the U.N. system, regional organizations, other States, “human rights” organizations, and media outlets) for illusory war crimes, and as it is already at risk of being internationally punished therefor, it is possible that the actual commission thereof will not significantly affect Israel’s geopolitical status. However, even if disregarding those rules of war that its enemies routinely violate causes worldwide sanctions to be leveled against Israel, so be it! This is because, even if the price of insisting on reciprocity in the conduct of war is extremely costly, the Jewish State is morally obligated to elevate its continued existence and the safety of its population above all other considerations, including the safety of its enemies’ populations.
One last issue presents itself in the context of attacking an enemy’s hostile civilian population in order to protect Jewish lives. Who has the moral right to initiate such attacks? For example, is there any moral distinction between (a) Israel bombarding a marketplace in Gaza in order to dissuade Hamas from continuing to bombard Ashkelon and (b) a Jew attacking an Arab in Jerusalem in order to dissuade Hamas from continuing to bombard Ashkelon? Alternatively stated, if David Raziel was a hero for leading a vigilante campaign against Arab terrorism during the Mandatory period, aren’t Jewish vigilantes who, in present times, kill Arabs in retaliation for Arab terrorist attacks against Jews also heroes?
The answer is found in the Hebrew Bible:
“Everything has its season, and there is a time for everything under the Heavens: A time to be born and a time to die; a time to plant and a time to uproot the planted. A time to kill and a time to heal; a time to wreck and a time to build. A time to weep and a time to laugh; a time to wail and a time to dance. A time to scatter stones and a time to gather stones; a time to embrace and a time to shun embraces. A time to seek and a time to lose; a time to keep and a time to discard. A time to rend and a time to mend; a time to be silent and a time to speak. A time to love and a time to hate; a time for war and a time for peace. What gain, then, has the worker by his toil? I have observed the task with which God has given the sons of Humankind to be concerned: He made everything beautiful in its time; He has also put an enigma into their minds so that Humankind cannot comprehend what God has done from Beginning to End.” (Ecclesiastes 3:1-11)
During the British Occupation, the British authorities in Mandatory Palestine did very little either to prevent Arab terrorist attacks against Jews or to punish the perpetrators thereof, thereby leaving Jews with little choice but to engage in vigilantism, even if that meant killing Arabs who had not participated in the killing of Jews. That time period resembled the chaotic period of the biblical Judges, of which it was observed: “In those days there was no king in Israel; [consequently,] a man would do whatever seemed appropriate in his eyes.” (Judges 17:6). However, in present times, the State of Israel -- a State governed by, and for the benefit of, Jews – exists. The State both prevents and punishes Arab terrorism -- even if it sometimes acts fecklessly and ineffectively. Consequently, in present times, Jewish vigilantism is not an appropriate response to Arab terrorism.
Yes, during War, an enemy’s civilian population must be decimated in order to dissuade its leaders from continuing to bombard Israel’s civilian population; but, in present times, the unleashing of such brutality is the exclusive right, as well as the exclusive responsibility, of the State.
And if Israel performs this task properly, it will disincentivize Jewish vigilantism.
© Mark Rosenblit
[Note: At least one Member of Israel’s Parliament has opined that attacks by Israel upon the enemy’s civilian population will dissuade Jews from perpetrating their own vigilante assaults against that hostile population. Read on! -- Mark Rosenblit]
Israel should carry out revenge attacks on Palestinians, rightist MK says
By JTA [Jewish Telegraphic Agency] 05/06/2016
A right-wing Israeli lawmaker who last month drew condemnation for saying new Jewish mothers shouldn’t have to share hospital rooms with Arab ones, said Israel should conduct revenge attacks against Palestinians.
Bezalel Smotrich, a Knesset member with the Jewish Home party, said Friday in a Holocaust Remembrance Day Facebook post that, if Israel had taken appropriate acts of revenge, it could have prevented subsequent Jewish civilians’ attacks on Palestinian individuals.
The post remains publicly visible on Smotrich’s Facebook page.
In particular, state-sanctioned revenge could have prevented the July 2015 firebombing that killed a Palestinian toddler and his parents, as well as the murder of Palestinian teen Mohammed Abu Khdeir, Smotrich wrote in the post.
Revenge is an “important and moral value,” but must be conducted by the government, not by individuals, he added.
He criticized the Israeli government for not carrying out reprisals “in legitimate ways.” He did not specify what sort of reprisals would be legitimate or exactly whom they would target.
“It is possible to assume that if the State of Israel had not erased, under the influence of twisted Christian morality, the word revenge from its lexicon and had done things in legitimate ways and deterred the enemy, we would not have been faced with these harsh incidents of private individuals taking the law and revenge into their own hands,” he wrote.
“The murder of the youth Mohammed Abu Khdeir and the murder in Duma (if it was carried out by Jews) are serious and forbidden, but they do not stem from racism – whose meaning is the hatred of the other only because they are different – or from the desire of someone in Israeli society to destroy the Arab people,” Smotrich wrote. “They reflect anger and a desire for revenge, justified in their own right, on the basis of the hostility and war of annihilation the Arabs are conducting against us.”
Smotrich also argued that Jewish attacks on Arabs are not racist, but are, instead, the fault of the Arabs themselves.
“If the Arabs had not fought against us, not a single Arab would have been killed here,” he wrote. “If the Arabs had not murdered us night and day, not a single Jew here would have wanted to harm them. War is a bad thing, and during it we are required sometimes to take unpleasant defensive measures. It happens sometimes that mistakes are made as part of it, and even difficult mistakes that are almost criminal. But it is light years away from racism and apartheid.”
Copyright © 2016 Jpost Inc. All rights reserved
[The below commentator argues that, as part of a comprehensive strategy to prevail against a Jew-hating “Palestinian” collective, Israel must employ harsh collective punishments. Read on! – Mark Rosenblit]
Lieberman’s New Home Demolition Initiative: The Point and the Pointlessness
The Algemeiner NOVEMBER 3, 2017
by Martin Sherman
“There is no difference between an attack that ends in murder and an attack that ends with serious injury. In both cases the homes of the terrorists must be destroyed.”
– Defense Minister Avidgor Lieberman, Oct. 29, 2017.
Earlier this week, Defense Minister Avigdor Lieberman instructed the Defense Ministry’s legal team to explore avenues that would extend the ability of the IDF to destroy not only the homes of terrorists who have murdered Israelis, but also of terrorists who have severely wounded them. Currently home demolitions are restricted to cases of terror attacks that result in the death of Israelis.
Is incompetence reason for clemency?
In justifying his proposal, Lieberman claimed that Israel’s policy of home demolitions has proven itself an effective deterrent against terrorism, and there is no reason to distinguish between the different types of attacks whose purposeful intent was the slaughter of Israelis.
Prima facie, this contention has a sound ring of logic to it. After all, why should the murderous intent of one terrorist be treated less harshly simply because the harm inflicted was — despite that intent — less “successful” than those of another nefarious perpetrator?
After all, if home demolitions are, as Lieberman claims, an effective measure in reducing the mortal danger to Israelis, why not apply it to any terror attempt — whether successful or not? Indeed, one might well ask, why should the efficiency of Israel’s counter-terror operations be a mitigating factor in dealing with any thwarted would-be Judeocidal butcher?
But perhaps even more to the point is this: If home demolitions are in fact an effective terror deterrent, then perhaps even more than the actual perpetrators, who murder or maim their victims, this measure should be applied to those who plan, finance or incite such atrocities.
Indeed, given that frequently, the perpetrators themselves are willing to sacrifice their lives in the commission of their brutal acts, it could well be that the threat of having one’s residence razed might have greater deterrent effect on those responsible for planning, funding and inciting such acts — and who do not seem to share such a manifest death-wish as their more dispensable kinsfolk.
Correctly conceptualizing the conflict
Critics of home demolitions, in general and certainly of any expansion of its application such as advanced by Lieberman, in particular, allege that, as it entails inflicting punishment on the families of the perpetrator for acts they did not commit, it is inherently unfair. Accordingly, its use should be prohibited or at least severely curtailed.
While this characterization might be factually true, in the context of the Israeli-Palestinian conflict it is operationally (and ethically) irrelevant.
It should be almost self-evident that to arrive at some kind of durable resolution of the conflict and the lasting cessation of violence, the conflict must be correctly conceptualized. This is not a prescription for abstract theorizing detached from the harsh and harrowing realities of day-to-day experience. Quite the opposite. Unless the conflict is correctly conceptualized, no effective policy can be devised to contend with it — and certainly not to end it. Indeed, just as a disease cannot be properly treated if incorrectly diagnosed, so a conflict cannot be correctly addressed if it is incorrectly conceptualized.
Little analytical acumen is required to draw the conclusion that the conflict between Arab and Jew over control of the Holy Land is a clash between two collectives: A Jewish collective and an Arab collective — for which the Palestinian collective is its operational spearhead.
In this regard, during a November 2015 address, then-Defense Minister Moshe “Bogie” Ya’alon, aptly characterized the conflict as a clash of collectives, describing it as: “…predominantly a war of wills, of two societies with conflicting wills.”
Accordingly, the conflict, as one between collectives, cannot be individualized. One collective must prevail, the other be prevailed upon. Only then, after such a decisive outcome, can the issue of personal misfortune or injustice within the collectives be addressed.
Collective punishments for collective conflicts
If the clash is essentially one between collectives with conflicting societal wills, then clearly, for one collective to prevail over the other requires breaking the will of the rival collective.
Consequently, any wrongdoings perpetrated in the name of the Palestinian collective must carry a price, for which the collective pays — for if not, it will have no incentive to curb them.
In this regard, it must be kept in mind that the Palestinian population is not, as some might suggest, a hapless victim of the terror groups, rendering it blameless for the atrocities committed in its name. To the contrary, it is the very crucible from which such groups have emerged. By its own hand, by its own deeds and declarations, it has made it clear that it will not — except on some temporary, tactical basis — brook any manifestation of Jewish political independence or national sovereignty “between the river and the sea.”
Indeed, a July 2017 survey by Palestinian Center of Policy and Survey Research, found that within the Palestinian collective, there is virtually unanimous endorsement of the acts of terror perpetrated against the Jewish collective and similar sympathy and support for perpetrators. According to its findings, “an almost total consensus rejects pressure on the PA to terminate payments to Palestinian security prisoners [i.e. jailed terrorists- MS]” and “91% are opposed to the suspension of PA payments to Palestinian security prisoners in Israeli jails; only 7% support such measure.”
Putting home demolitions in perspective
Accordingly, in the context of a clash between conflicted collectives, the issue of the “collective nature” of punitive measures should not be considered grounds for their preclusion.
After all, this was never a consideration in, say, Serbia, where markets, hospitals, buses, bridges and old-age facilities, to name but a few civilian targets hit in high-altitude bombing sorties in the US-led NATO attacks in the Balkans War of the 1990s.
Moreover, as polls repeatedly show, terror attacks against Israelis are not something foisted on a reluctant peace-seeking Palestinian population, but are in fact, widely embraced by it — reflecting nothing more (or less) than vox populi.
Seen in this light, home demolitions and the extension of their imposition on perpetrators of non-lethal terror attacks (or even planners and facilitators of such attacks) are entirely appropriate if they:
– militate towards diminishing dangers to which members of the Jewish collective are exposed; and
– diminish the will of the Palestinians-Arabs, as a collective, to carry out assaults against Jews (as a collective).
However, unless integrated into a wider conceptually coherent strategic policy, home demolitions, like any other operational tactics, such as targeted killing, are unlikely to be effective in any meaningful way. This is particularly true if the affected family members are allowed to receive aid to quickly rebuild an alternative abode and financial compensation for their kinsman’s commission of the act for which their home was demolished.
Lack of strategy stymies tactics
Indeed, while it might be possible to present data showing that harsh punitive and/or preventative measures — whether house demolitions, administrative detention or targeted killings — may have reduced the frequency of terror attacks, even their most fervent proponents will be forced to admit that they have not been able to terminate such attacks. And certainly they have been unable to break the terrorists’ will to undertake them.
Nor will they ever be able to do so, if they remain detached from a wider strategic blueprint, which draws on the awareness that in the ongoing clash between two collectives with irreconcilable core aspirations, only one can prevail.
This calls for Israel to cease relating to the Palestinian-Arab collective as a prospective peace partner, and to begin relating to it as it relates to itself — as an implacable enemy. Only then can a coherent, comprehensive and logically consistent strategy be fashioned in which Israel ceases to sustain an inimical collective by gradually ceasing to supply it with goods and services it needs for its existence. In applying such a strategy, a clear distinction should be made between the belligerent Palestinian-Arab collective and non-belligerent Palestinian-Arab individuals.
The former must be unequivocally and unmercifully vanquished and dismantled. The latter must be provided with the means to seek a better, more secure life elsewhere in third party countries, outside the “circle of violence” and free from the clutches of the cruel corrupt cliques who, for decades, have wrought nothing but disaster and devastation upon them.
Strategic coherence not haphazard tactical machoism
Only once such a strategic approach is adopted, can various operational tactics — such as an enhanced demolitions policy — be effectively incorporated into it as tools to achieve strategic goals. Until that happens, until Israel forswears any aspirations of reaching some consensual arrangement with the Palestinians, harsh tactical measures will always, to some degree or other, be at cross purposes with ostensibly more benign strategic objectives. Until that happens, Israeli policy will be plagued by internal contradictions that hamstring its implementation and the effectiveness of its operational tactics, making it appear disingenuous and devious — and an easy target for international acrimony and opprobrium.
Surely it is high time for the national leadership to grasp these almost self-evident truths and demonstrate an awareness that for its long-term survival and security, Israel needs strategic coherence, not haphazard tactical machoism.
Martin Sherman is the founder and executive director of the Israel Institute for Strategic Studies.
Copyright ©2017 Algemeiner.com. All Rights Reserved.
[The below commentator argues that by holding Israel to an impossible standard of conduct, the international community may provide Israel with justification to abandon any attempt to comply. Read on!]
How the ICC is encouraging greater civilian casualties
By Evelyn Gordon 3/24/2020
March 16 [, 2020] was the deadline for filing briefs on whether the International Criminal Court should recognize Palestine as a state. But important though that question is, the ICC prosecutor’s decision to open a criminal investigation against Israel poses a much bigger problem: Contrary to the court’s stated mission of trying to reduce the harm caused by war, it may well result in even higher casualties and more extensive property damage.
Like all Western countries, Israel makes great efforts to uphold customary laws of war, including by trying to minimize civilian casualties. As a group of high-ranking Western military experts wrote in a report on the Hamas-Israel war of 2014, Israel “met and in some respects exceeded the highest standards we set for our own nations’ militaries.” In fact, Israel has historically caused fewer civilian casualties and less property damage than other Western armies.
Many Israelis actually resent this, arguing that the restrictions imposed on the army’s use of force put Israel’s own soldiers and civilians at greater risk. And the Israel Defense Forces’ vehement denials can’t necessarily be taken at face value since it would hardly admit to putting Israelis at risk. Yet even assuming these denials are truthful, the fact that many Israelis believe otherwise means that the army is under constant pressure to be less stringent about using force.
Until now, however, it has had a strong counter-argument: These restrictions aren’t so onerous as to make effective military action impossible, and obeying them keeps our soldiers and politicians out of international legal trouble. Consequently, it’s worth the effort.
But now, ICC prosecutor Fatou Bensouda has declared that all the IDF’s efforts were worthless: In her view, it committed prima facie war crimes both during the 2014 war and in subsequent military operations in the Gaza Strip. In other words, meeting or even exceeding the West’s “highest standards” is no longer enough to keep you out of legal trouble.
The court’s supporters have a facile response to this: Israel must simply meet even higher standards, and then it will be fine. But in reality, as previous ICC decisions have made clear, the court considers virtually any civilian casualties unacceptable.
That’s precisely why its pretrial chamber of judges has twice demanded that Bensouda reconsider her decision not to prosecute Israel over its 2010 raid on a flotilla to Gaza. The soldiers were enforcing a blockade that even the United Nations deemed legal, and as Bensouda noted in her decision to dismiss the case, they opened fire solely in self-defense after nine of them were seriously wounded when passengers aboard one ship attacked them with knives, chains, wooden clubs, iron rods and slingshots. But the pretrial chamber dismissed this context as completely irrelevant, insisting that the resultant 10 deaths were a criminal massacre.
Nor is the ICC alone. Zero civilian casualties is also the standard increasingly promulgated by other self-appointed custodians of the laws of war. The International Committee of the Red Cross, for instance, has declared that attacking a “populated village” is forbidden under any circumstances, even if the enemy is hiding there.
Bensouda fought the pretrial chamber over the flotilla case for years because do otherwise would be to abdicate her own prosecutorial independence and grant the chamber the right to dictate her decisions. But it’s hardly surprising that she preferred to avoid another exhausting battle with the chamber over Israel. It was much easier to simply adopt its “no civilian casualties ever” standard and prosecute Israel for its Gaza operations.
Yet zero or near-zero civilian casualties are an impossible standard when, for instance, Palestinians routinely launch rockets from populated areas at Israeli civilians, or bring babies and grandmothers to violent protests where other “demonstrators” are throwing bombs and Molotov cocktails at soldiers in an effort to breach the border. The only way any country could avoid civilian casualties in such situations would be to refrain from military action at all—or in other words, to let the enemy breach its border and attack its own soldiers and civilians while doing nothing to try to stop it. Indeed, near-zero civilian casualties isn’t a standard any military in any conflict has ever been able to meet.
Thus by saying that even compliance with the highest Western standards isn’t enough to protect Israel from prosecution, the ICC has essentially said there’s no point in even trying to uphold the laws of war, because as the ICC interprets them, they are incompatible with the most basic requirements of self-defense. Unless Israel is willing to sit with folded hands while Palestinian terrorists attack it—which it will never do—it has no hope of escaping the ICC’s clutches. And if so, why bother adhering to stringent restrictions that expose its own soldiers and civilians to greater risk?
Moreover, as I’ve explained before, activist courts always seek to obtain widely applicable precedents by going after “easy” targets first, and for the ICC, Israel is obviously an easier target than, say, America or France. Thus assuming the court upholds Bensouda’s position on Gaza—which, given its proven anti-Israel bias, it’s certain to do—this precedent could and would be used against every other Western country that engages in military operations since other Western armies use the same tactics and the same precautions that Israel does. This could lead other Western militaries to conclude that efforts to abide by the laws of war have become pointless.
In short, by going after Israel despite its adherence to the West’s “highest standards,” the ICC could end up reversing more than a century of efforts to reduce the collateral damage of military action. That would lead to even higher civilian casualties, the antithesis of its purpose.
All law is based on two fundamental principles: that compliance is possible without leaving yourself or your country vulnerable to destruction; and that compliance protects you from legal trouble. If those two criteria aren’t met, nobody would have any reason to obey the law.
The ICC’s decision to prosecute Israel eviscerates both those principles And as such, it’s liable to destroy the very international law it was created to uphold.
This article was originally syndicated by JNS.org (www.jns.org) on March 18, 2020.
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