The terms “criminal,” “illegal” and “disproportionate” are used loosely these days to brand Israel’s response to the third war in five years initiated by Hamas. Last month, the United Nations Human Rights Council went so far as to condemn “in the strongest terms the widespread, systematic and gross violations of international human rights” by Israel and dispatched a commission of inquiry to investigate Israeli “violations of international humanitarian law.”
In the face of such accusations, any assessment of the current round of fighting must begin with the most basic of facts: Hamas fighters are war criminals by every definition. They and other Islamist terrorist groups deliberately target Israeli civilians while intentionally situating themselves and their munitions among Palestinian civilian areas – thus, in effect, committing a double war crime by putting two groups of civilians at risk simultaneously.
However, the fact that those firing rockets at Israel are making a mockery of international law does not relieve Israel from compliance with those very norms. Those who argue that to survive in a violent neighborhood Israel must abandon the moral high ground are wrong on grounds of both principle and practice. The argument out of principle is straightforward: Israel is more than the result of the Jewish yearning for normalcy through self-determination; like American exceptionalism which sought to create a shining city on a hill, Zionism is the expression of the 2,000-year-old Jewish quest for a just society, the quest to build a state that would serve as a light unto the nations. For Israel to lose her soul in the difficult struggle against terrorism would be to betray that dream and all those who toiled and still toil for its realization.
The practical argument is threefold.
First, the cohesiveness of Israeli society depends to a large degree on the extent to which Israeli citizens believe in the cause for which they are called upon to fight. Second, Palestinian support for radical terrorist groups like Hamas depends to some degree on the behavior of Israeli forces. Third, Israel’s diplomatic, economic and military standing all depend to a large extent on the perceived legitimacy of Israeli actions in war.
This is why Israel must continue to fight, in the words of former Israeli chief justice Aharon Barak, “With one arm tied behind her back.” In the present context, it bears repeating: Civilians may not be targeted. Neither sympathy with, nor membership in a terrorist organization like Hamas makes one a legitimate target.
Doctors, traffic police, teachers, social workers and other civilians who are Hamas members cannot be considered military targets.
Only if sufficient evidence exists demonstrating that a person is participating in, planning, or ordering military attacks does that person becomes a legitimate target. However, once someone becomes a legitimate target, he remains one at all times and in all places – day or night, on the battlefield or at home.
Despite the loose talk by some irresponsible pundits and politicians, not every killed civilian constitutes a war crime. Civilian casualties do occur in battle.
They are a tragedy. Whether Israeli or Palestinian, each and every civilian injured or killed is a source of anguish. Like its counterparts among the family of liberal democracies, Israel too, in every campaign directed at terrorists, and in the present one as well, has regrettably killed civilians. But civilian casualties cannot be the goal of legitimate military action. According to the laws of war, when there is a chance that civilians will be harmed, a military action can be taken only if the demonstrable military advantage gained is substantial enough to justify the action in question.
Thus firing rockets at enemy population centers is illegitimate, but targeting rocket squads deployed in residential areas is legitimate, and storing armaments in schools and hospitals, as Hamas has done, poses impossible moral dilemmas that no democracy should ever have to face.
Certain advocates of Israel at home and abroad argue that the strictures placed on Israel are unfair. Forcing Israel to fight with one hand tied behind its back while its opponents violate every rule in the book may seem irrational and overly restrictive.
While it may be true that the laws of war require some amendment to meet the conditions of the 21st century asymmetric battlefield, only by following the time-honored principles that form the basis of international law can Israel defeat the terrorists while preserving its democratic character, the allegiance of its people and the support of peace-loving peoples around the world.
Israel’s track record of preserving human rights under the difficult conditions of urban combat is commendable. Yet purported defenders of human rights such as the UNHRC seize on Israel and let flagrant violators of international law like Hamas off the hook.
Despite this double standard, Israel’s adherence to international law is not a source of weakness, but rather one of its greatest strengths.
The author is president of the Israel Democracy Institute and a former Knesset member. He is co-author of a legal brief entitled “Operation Protective Edge and International Law.”