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It's time to recognize that 'customary international humanitarian law' is neither customary, nor law, nor humanitarian.
The term "collective punishment" conjures up images of Nazis executing entire villages in retaliation for a partisan ambush. No wonder Jews are acutely sensitive to charges of imposing collective punishment or targeting civilians.
And we hear those charges a lot: last summer in Lebanon; every time Israeli artillery hit back at the source of Kassam fire from Gaza. Were Syria to fire missiles at Israeli cities, and Israel to strike back at Syrian cities with even greater force, the international community would undoubtedly condemn Israel.
Accusations of war crimes by states attempting to defend against terrorist attacks have become a major weapon in the terrorist arsenal. In the words of Boaz Ganor of the Herzliya Interdisciplinary Center, so-called customary international humanitarian law (CIHL) is a "force multiplier" for terrorist groups, who think nothing of putting civilians in the line of fire.
That requires some serious rethinking of the laws of war predicated on an outdated model of opposing armies facing off on an open field far removed from civilian populations. Modern warfare inevitably implicates civilian populations.
The doctrine of Mutually Assured Destruction (MAD), which protected against nuclear conflagration during the Cold War, for instance, is predicated on the threat of collective punishment on a massive scale. Few citizens of the Soviet Union would have had any input into the decision to launch a nuclear attack on the United States. But they would nevertheless have been incinerated by the American retaliation. Similarly, Israel's survival today depends on the credibility of our willingness to respond in kind to any attack on Israeli civilians by Iran or Syria.
One might distinguish Soviet citizens from residents of Gaza or southern Lebanon on the grounds that the former were part of a hierarchical governmental structure. But the distinction is far from clear. Hamas in Gaza and Hizbullah in southern Lebanon essentially function as autonomous governments. And they are far more representative of the populations they rule than the government of the Soviet Union ever was. Hamas was popularly elected, and Palestinian polls show widespread support for the ongoing Kassam attacks on Israel. And residents of southern Lebanon have more to say about Hizbullah rocket launchers in their backyard and weapons stored in their basements than Soviet citizens had about the actions of their regime.
IT IS TIME we recognize, to paraphrase Voltaire on the Holy Roman Empire, that "customary international humanitarian law" is neither customary, nor law, nor humanitarian. It is not customary because it is not based on the actual behavior of nations past or present. When the Southern states began executing captured former slaves fighting in the Union Army, president Lincoln announced that the Union would execute captured Confederate soldiers in reprisal. The executions stopped. (In the same vein, denying Palestinians access to security prisoners held by Israel would be far more effective in securing access to our captive soldiers than beseeching the international community to intervene.)
During World War I, the Allies blockaded the Central Powers to force them into submission via starvation. And in 1943, Churchill ordered 1,000 British bombers to hammer Hamburg. (For good reason did the British omit the bombing of civilian populations from the Nuremberg indictments.) The firebombing of Dresden in the waning days of World War II killed tens of thousands of German civilians. Was that firebombing, however, self-evidently immoral if it also saved thousands of far more innocent Jews in the death camps by hastening the end of the war?
Yet if Israel engaged in any of these actions, it would be roundly condemned by the international community.
NOR IS customary international humanitarian law law in any meaningful sense. Its "rules" were not enacted by any international governmental body to which sovereign nation-states ceded the right to legislate. Nor are they even embodied in reciprocal treaty obligations entered into by sovereign states. They are nothing more than "rules" derived from declarative statements made by any and everybody - from various tinpot dictators and tyrants to Human Rights Watch - on what they think international law should be; and presto, according to the International Committee of the Red Cross (ICRC), it is.
Nor are the "rules" humanitarian. As Ganor points out, they render civilian populations more vulnerable by creating incentives for terrorists to operate from their midst.
And notes Jeremy Rabkin, the leading academic student of the inanities of CIHL, the rules are designed to favor guerrilla and terrorist fighters. In particular, they sever the obligations on states trying to defend themselves against terrorism from any reciprocal obligations on the part of terrorists.
Those "rules" are the outgrowth of a Geneva Conference convened by the ICRC in 1975, at which Third World countries outnumbered Western powers. And they form a pattern with UN General Assembly resolutions of the period demanding a New World Economic Order. In effect, they have redistributed military power to terrorist groups.
In responding to claims that Israel has violated CIHL, our recourse must be to elementary logic and an examination of the actual conduct of nations. Just as the US Constitution is not a "suicide pact," neither is international law. Until human rights advocates tell us what we can do to protect our cities from missiles and our citizens from suicide bombers, CIHL has no claim on our attention.
In the meantime, let Israel begin to place the lives of its citizens first, as has every other nation in history. We have no wish to see the people of Gaza starve, but unless the Hamas government stops the Kassams, closes the tunnels bringing in lethal weapons and returns Gilad Schalit, neither does Israel have any obligation to supply food, water and electricity to a quasi-state that has declared war on its existence.