One of the favourite weapons of Israel’s opponents (when they aren’t using rockets, missiles and bombs) is to accuse it in the court of public opinion of using “disproportionate force” in its response to the attacks on it. Besides the fact that this argument makes no sense (would you expect a person punched in the face to punch his attacker in the exact same spot on his face? Or would you expect him to deliver a knock-out blow to prevent a recurrence?) the accusation does not stand up to scrutiny of international law, despite Israel’s opponents’ fervent wishes.
Eli E. Hertz at Myths and Facts explains this thesis in Proportionality and Collective Punishment:
Israel is often portrayed in the media, by Western leaders, human rights activists and the many different organs of the United Nations as inflicting disproportionate and collective punishment on many Palestinian Arabs for the deeds of a few terrorists.
Ironically, the prohibition of imposing “collective penalties [punishment] intimidation and terrorism” that Article 33 of the Fourth Geneva Convention talks about, should be applied in this case to the millions of innocent men, women, and children of Israel that are collectively being punished day-in and day-out by Arab terrorists for “offenses” they never “personally committed.” As to the “terrorism” Article 33 speaks about; it is the Israelis that fight to prevent Palestinian terrorism, and not the other way around.
Palestinian Arabs, by their first use of armed force against Israeli civilians and non-combatant Jews in contravention of the United Nations Charter, constituted prima facie [Latin: on its face] evidence of an act of aggression – aggression being defined by international law as “the most serious and dangerous form of illegal use of force.”
Therefore, the rule of proportionality in this case of continuous aggression needs to be met by Israeli acts that will induce the aggressors to comply with its international obligations. Israel countermeasures need not be the exact equivalent of the breaching act.Judge Schwebel, the former president of the International Court of Justice is quoted saying:
“In the case of action taken for the specific purpose of halting and repelling an armed attack, this does not mean that the action should be more or less commensurate with the attack.”
The perception among Palestinians that politically motivated violence is legitimate and effective is nothing new. From a broader perspective, if the Palestinians are rewarded with political gains following their acts of aggression, it can be expected that other radical groups will also make use of their tactics. Israel will no longer be the main target.
There is more in the article about the use of collective punishment by the British against the Jews in Mandate-era Palestine. Read the whole thing. The law is clearly on Israel’s side.
A similar article by Arlene Kushner (one of the best commentators on Israel and the Middle East in my opinion) at Jews Down Under discusses Proportionality and other matters:
There is a widespread – but very erroneous – impression that if an enemy attacks, a proportional response means a nation can only return what was received and no more. That is, the mistaken impression is that if Hamas shot one rocket, we could only shoot one rocket back.
International law, however, defines proportionality very differently: it is a question of legitimate military goals and intentionality. Put very simply, we would not be restricted to only shooting one rocket back at Hamas, but rather doing what is necessary (within certain defined limits) to ensure that Hamas does not shoot any more rockets. That is a legitimate military goal.
Luis Moreno-Ocampo, who was the Chief Prosecutor at the International Criminal Court in 2003, wrote this about 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. A crime occurs if there is an intentional attack directed against civilians…or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality).”
The sort of bombing we are doing is entirely legitimate and proportional to our military goals of making it impossible for Hamas to launch rockets at our people. If in the process some civilians in Gaza are hit, our military action remains entirely legitimate. Do not believe otherwise. In point of fact there are bound to be civilian deaths because Hamas uses civilians as human shields and places its arsenal of weapons in civilian areas.
What is not legitimate according to international law is the sort of deliberate targeting of Israeli civilians that Hamas is doing day in and day out. Here the intentionality is to hit civilians.
We need to make a point of noting that it is not only Hamas that is targeting Israel. Our “peace partners, Fatah, aka Mahmoud Abbas’s party, are actively giving encouragement and support to Hamas in their genocidal aims, no matter what their PR propagandists say. Arlene Kushner’s article continues:
So let’s take a look, just for a moment, at Fatah, which is Abbas’s party.
Palestinian Media Watch tells us that Fatah put up on its Facebook page today an announcement that:
“One god, one homeland, one enemy, one goal” unites Hamas, Fatah and Islamic Jihad.
While Khaled abu Toameh writes that:
“At least two Fatah armed groups announced that they had started firing rockets at the ‘settlements’ of Ashkelon and Sderot, cities inside the pre-1967 borders of Israel, with another Fatah group claiming responsibility for firing 35 rockets into Israel since Sunday.”
The use of the word “settlements” is a tip-off to the fact that Fatah considers Jewish presence even within the ‘67 armistice line to be an illegitimate “occupation,” i.e., they want it all.
For further elucidation listen to international law expert, Prof. Eugene Kontorovich who says that Israel hasn’t learned anything from the Goldstone Report because there was no lesson to be learned!
To see an example of how Israel goes to extraordinary lengths to preserve the lives of Gaza civilians, watch this video of how the IAF aborted a bombing strike after the pilots spotted civilians in the building:
And now see this Memri TV clip (click on the link to view) of a Hamas spokesman bragging about how they use human shields in order to cause maximum harm to their own people and to Israel’s reputation. Here’s the transcript:
Following are excerpts from an interview with Hamas spokesman Sami Abu Zuhri, which aired on Al-Aqsa TV on July 8, 2014:
Interviewer: “Are people still going up to the rooftops?”
Ayad Abu Rida (Reporter) : “Witnesses told us that there is a large gathering, and people are still going to the Kawari family house, in order to prevent the Zionist occupation’s warplanes from targeting it.”
Interviewer: “What is your comment about this? People are reverting to the (human-shield) method, which proved very successful in the days of martyr Nizar Riyan…”
Sami Abu Zuhri: “This attests to the character of our noble, Jihad-fighting people, who defend their rights and their homes with their bare chests and their blood. The policy of people confronting the Israeli warplanes with their bare chests in order to protect their homes has proven effective against the occupation. Also, this policy reflects the character of our brave, courageous people. We in Hamas call upon our people to adopt this policy, in order to protect the Palestinian homes.”
In order to avoid such casualties the IAF has instituted the unprecedented and inimitable routine of “knocking on the roof” of a target: dropping a non-explosive charge on the roof of a targeted building in order to scare the civilians into leaving. Only then does the air force bomb the target.
However even that is too “contentious” for some (e.g. the NY Times, what a surprise). David Gerstman at Legal Insurrection gives us the details of the invented “controversy”, and then provides us with a refreshing take from William Saletan at Slate Magazine who writes about “the Gaza rules“.
The worst civilian death toll—seven, at the latest count—occurred in a strike on the Khan Yunis home of a terrorist commander. Hamas calls it a “massacre against women and children.” But residents say the family got both a warning call and a knock on the roof. An Israeli security official says Israeli forces didn’t fire their missile until the family had left the house. The official didn’t understand why some members of the family, and apparently their neighbors, went back inside. The residents say they were trying to “form a human shield.”
The Khan Yunis scenario is different. There, the human shield was voluntary. According to Ha’aretz, an Israeli officer insisted on Wednesday morning that if other civilians followed this example—responding to prestrike warnings by going onto the roofs to form human shields—Israel wouldn’t be deterred. Maybe the officer was bluffing. But what if this scenario happens again? And what if the would-be martyrs appear on the roof while Israel still has time to avert the strike, which wasn’t the case in Khan Yunis? Would their deaths be homicide? Would they be suicide?
That’s a tough call. But anyone concerned about the deliberate targeting of civilians in this conflict should first look at Hamas.
For more reading on the ridiculous accusation of disproportionality, read Jeremy Havardi at the Commentator who writes about the vile anti-Israel commentary in the British press; Elliot Abrams at Israel Hayom who explains “The sick math of the Gaza war“; and Tzvi Ben Gedalyahu at the Jewish Press who says that Israel is guilty of disproportion in not wiping out Hamas.
It is clear that the only disproportionality in this whole conflict is the way in which Hamas not only disregards the safety of its civilians, but goes out of its way to place them in harms way, whether by force or by persuasion. Israel on the other hand acts in a disproportionate manner to protect the enemy’s civilians. No other army in the world can make such a claim, and if anyone disagrees with this statement, I challenge them to find me proof.
And as I have shown above, there is the disproportion in the world’s microscopic focus on Israel’s minutest acts committed even in the fog of war and even under intense rocket fire, and its disproportionate accusations against Israel.
Natan Sharansky had a word for this double standard: Antisemitism.