Guest Post: Protective Edge: Did Israel win?

This is another Guest Post by Brian Goldfarb, a continuation of sorts to his previous post about Operation Protective Edge.

Hamas war crimes (Branco @ Legal Insurrection

Perhaps this would better titled “An outsider’s view…: Part 2”, if only because what follows arises out of the Hamas/Islamic Jihad unprovoked attack on Israel and Israel’s entirely justified and proportional response. Those who are inclined to argue with that word “proportional” should hold your ire: I will be referring you to some articles later on which I urge you to read.

Let’s start with this article entitled “The Conditions of Victory and Peace” by Shoshana Bryen in the Gatestone Institute. Her opening is the following:

“The Israeli public is in a notably bad mood.

The Hamas rockets have, for the time being, stopped; the current cease-fire is holding. The tunnel threat, a strategic one most Israelis had not understood until several days into the war, has been alleviated; many Hamas rocket manufacturing facilities have been destroyed; a substantial percentage of the Hamas arsenal has been used up; and Hamas achieved none of its strategic goals — not large-scale Israeli casualties or physical destruction, an airport, a seaport, or the opening of border crossings. Israeli children have returned to school and, after a brief dip, the Israeli economy is expected to grow for the year.

But Israelis polled opposed the cease-fire by 54-37% and, while 83% approved of the conduct of the IDF, the Prime Minister’s approval fell from 59% to 32% with the cease-fire. Some 59% think Israel didn’t win the war, and 16% think Hamas won. [Palestinians would agree, 79% of them think Hamas won the war and more than half support Hamas’s strategy of “armed resistance” for the future.]”

Anyone out there who felt that my previous article might reflect at least some aspects of reality might be bemused by this. Anne, of course, reflected the view stated above in her comments a few days ago, musing that some sort of proper victory was within Israel’s grasp. I will, however, stand by my assertion that the Gazan “victory celebration” was far more out of relief by most (even those who celebrated without a gun in their backs) that the fighting and bombing had stopped. And nothing so far quoted from this article negates this optimistic take on the situation. People don’t have to be rational in their reactions to the extreme situations they have just experienced, even if that isn’t how they would conduct their lives “for real”. This mind-set may not change, even after the IDF has conducted its inquiry into the conduct, execution and results of Protective Edge, even though (despite Hamas’s claims for – a very pyrrhic – victory) the IDF will be much better equipped, psychologically, to say nothing of militarily (Iron Dome will be even more effective next time) for the next time Hamas, Islamic Jihad or Hezbollah is emboldened to try its might against Israel.

However, Bryen goes on to argue, the sort of victory that the Israeli population crave can only be won by actual defeat in detail of one’s armed opponents and, where necessary, actual occupation of the ground those opponents used to control. As a military strategist of World War 2 stated, “You can bomb the hell out of a piece of land, but you don’t own it until you stand a scared 18-year-old with a rifle on it” (I claim the veracity of the statement, even if the quote is rephrased). That is something that neither the US population regarding IS, nor the Israeli population regarding Hamas and Gaza, appear prepared to countenance.  Or, as she puts it:

“Control of territory and the ability to subject one’s enemies to enforceable rules is the only known mechanism for ending, rather than managing, a war. Despite the Western propensity for “peace processes” and negotiations, it is hard (impossible?) to find a historical example of one side simply agreeing to give up its mission, arms, ideology, or interests without a forcing mechanism — military defeat.”

She continues:

“We don’t like to talk about “winners” and “losers,” preferring to “split the difference” or find a “win-win” formula. But “peace” itself was defined by Machiavelli as “the conditions imposed by the winners on the losers of the last war.””

She has more to support her position. My response, however, is “maybe”, as I hope to demonstrate. That is, we might be moving into a different era from the one that Bryen describes, just as the world we live in now is very different from the one my parents lived in (and maybe your parents, too).  A reasonable question at this point is to ask, how is this world different. Well, it would seem unremarkable to assume, for a start, that whoever, de facto, controls a defined territory is, equally de facto, the “state” for all practical purposes, even if that “whoever” is most definitely a non-state actor. Thus, Hamas controls Gaza and is, therefore, the body to be dealt or negotiated with.

However, there are those who would disagree with this, and quite forcefully. For a start, we might want to respond, that Bryen’s view is a few hundred years old, and the world is a far more complicated, not to say a very different, place than it was in the Europe of Machiavelli’s time. However, we have Professor Louis Rene Beres, holder of a PhD in International Law from Princeton, saying (in this Gatestone Institute article Israel-Hamas ceasefire breaches international law  that:

“Once again, Israel and Hamas have agreed upon a so-called “cease fire.” Once again, as Hamas regards all of Israel as “Occupied Palestine,” the agreement will inevitably fail. And once again, for Israel and the wider “international community,” there will be significantly dark consequences for international justice.

In specifically jurisprudential terms, the immediate effect of this latest cease-fire will be wrongfully to bestow upon the leading Palestinian terror organization (1) a generally enhanced position under international law; and (2) a status of formal legal equivalence with Israel, its beleaguered terror target.

The longer-term effect will be seriously to undermine the legitimacy and effectiveness of international law itself.”

Look at the full title of Beres’ article: it includes the words ‘Israel-Hamas cease-fire breaches international law’. His argument is that no actual state entity, such as Israel, established by the UN in 1947, can bestow on a non-state organisation, and certainly not on one widely recognised as a terrorist organisation, the legitimacy of equal status with an actual state entity. Indeed, he goes on, at some length, to make this abundantly clear:

“The longer-term effect will be seriously to undermine the legitimacy and effectiveness of international law itself.

No authoritative system of law can allow or encourage accommodation between a proper national government and an unambiguously criminal organization. In this connection, however unintentionally, Israel should not further support its relentless terrorist adversary in Gaza by agreeing to any temporary cessation of hostilities. Instead, it should continue to do whatever is needed in tactical or operational terms, while reminding the world that the core conflict here is between an imperiled sovereign state (one that meets all codified criteria of legitimacy of the Convention on the Rights and Duties of States, 1934) and an insurgent organization that (a) meets none of these criteria, and (b) systematically violates all binding expectations of international humanitarian law.

By definition, under pertinent rules, Hamas is an illegal organization […]

In any conflict, under law, the means that can be used to injure an enemy are not unlimited. No matter how hard those who would justify the willful maiming and execution of noncombatants in the name of some abstract ideal may try to institute certain self-serving manipulations of language, these people misrepresent international law. Always.

Whenever Palestinian insurgents (Hamas, Fatah, Popular Front for the Liberation of Palestine, Islamic Jihad; it makes no legal difference) claim a right to use “any means necessary,” they are trying to deceive.”

There is more, much more. I am not, of course, a lawyer, let alone one conversant in international law, but while Beres may be correct as to the strict interpretation of international law, including that relating to conflict, in terms of realpolitik, this isn’t much help. Israel has to deal with the world as it is, not as the lawyers might wish it to be. And in the world as it is, Israel has to deal with Hamas, with or without a long spoon, with or without intermediaries. And, in terms of realpolitik, Hamas are in charge of Gaza. And there are many who would, anyway, question the extent to which Israel is “a proper national government”, to the discomfort of the likes of Louis Rene Beres, but not, I hasten to add, to mine: as far as I am concerned, Israel is, indeed, “a proper national government”, as has been proved time and again over the last 66 years.

So we have Bryen suggesting that what is peace is defined by the winners and imposed on the losers, and Beres asserting that the Israel-Hamas cease-fire is unlawful under international law: thus both are saying that, in effect, that until Israel re-occupies Gaza and expels, or whatever, Hamas, it won’t “win” – which is what most Israelis appear to believe and want (although they can’t really, can they, want the headaches of managing a re-occupation of Gaza which they’ve largely just reduced to rubble – however justifiable that might be under international law). Superficially, this appears to be what they are saying, even if Beres wraps it up in legal niceties that any cease-fire between the two is unlawful.

So, where does any confidence that I might have that things might be different from this view come from? Apart, that is, from burbling along about the damage that Hamas has sustained in all sorts of ways, including losing vital personnel and vital war material. Oddly enough, there have been some recent developments that might just support an optimistic view of this whole otherwise sorry mess.

Hamas fires rockets from residential neighbourhoods

Firstly, just a couple of days ago, The Times of Israel had an article  entitled “Hamas admits to rocket fire from residential areas” by Hamza Hendawi and Josef Federman. When you’ve stopped pinching yourself (after all, we’ve only, so far, had unreliable Western and Indian journalists reporting this), note this:

“But Hamas says it had little choice in Gaza’s crowded urban landscape, took safeguards to keep people away from the fighting (sic), and that a heavy handed Israeli response is to blame for the deaths of hundreds of Palestinian civilians.

Even Hamas now admits “mistakes” were made.”

So, yes they did fire from residential areas, but it was all the Israelis fault that they did so. Of course it was. How could it be otherwise? It is, after all, the Zionist entity that it to blame for everything. Except that even admitting that rockets were fired from urban areas should, fatally, undermine any charges against Israel at the ICC.

Hamas continues, in an attempt to blame someone, anyone, else than themselves for this state of affairs by arguing that:

““Gaza, from Beit Hanoun in the north to Rafah in the south, is one uninterrupted urban chain that Israel has turned into a war zone,” said Ghazi Hamad, a senior Hamas official in Gaza.

Increasingly, the discussion is not about whether the Hamas rockets were fired from civilian areas, but exactly how close they were to the actual buildings.”

Empty spaces in Gaza

Actually, of course, that quite clearly is not true: just google a map of the whole of Gaza to see just what open country there is in Gaza. [Anne adds: Alan Dershowitz in the JPost writes about the Empty Spaces in Gaza] Israel, with a reasonable high density of population, still manages to situate its active military, such as artillery units, in open country so as not to put civilian areas at risk. And Hamas? Need you ask? And if you must, here’s where really contorted verbal gymnastics comes in:

“”The Israelis kept saying rockets were fired from schools or hospitals when, in fact, they were fired from 200-300 meters [220-328 yards] away. Still, there were some mistakes made and they were quickly dealt with,” Hamad told The Associated Press, offering the first acknowledgment by a Hamas official that, in some cases, operatives fired rockets from, or near, residential areas or civilian facilities.”

So it’s still the Israelis’ fault and – yeah, and I’ve got some prime real estate below the high water mark to sell you. This is despite the fact that:

“Ahead of a UN investigation, the Israeli military has released reams of evidence, including satellite photos and aerial footage, to support its claims that it acted responsibly and attempted to minimize Palestinian casualties. It asserts that Hamas made no effort to disguise its attempt to maximize Israeli civilian casualties.
Throughout the war, the Israeli Air Force compiled dozens of video clips showing alleged wrongdoing by Hamas, an Islamic terror group sworn to Israel’s destruction.

These videos, many of them posted on YouTube, appear to show rockets flying out of residential neighborhoods, cemeteries, schoolyards and mosque courtyards. There are also images of weapons caches purportedly uncovered inside mosques, and tunnels allegedly used by operatives to scurry between homes, mosques and buildings.”

I do wish that The Times of Israel would stop using words like “alleged” and “purported”: leave that to The Guardian, The Independent and the BBC. My wife’s cousin, called up as part of the reserve – a tracker of missiles out of Gaza to determine where they came from – knows where they came from, and it wasn’t open country. He also told us that the entirely unlovely Lyce Doucet (of the BBC, peh, peh, peh) visited his unit and he showed her a screen shot of a barrage of missiles heading out of Gaza – several dozen – and she gulped. Not that any of it appeared in her televised report, of course.  Again, there’s a lot more, and it’s well worth reading, even if the Hamas-originated material needs to be taken with a pinch of salt, a very large pinch, at that.

Finally, and most surprisingly, is this Times of Israel article headlined “Hamas may break taboo and seek to negotiate with Israel, leader says“. If true (and not just a political ploy aimed at gaining Western sympathy for the poor benighted Palestinians trapped in Gaza by the nasty Israelis), this really does herald a breakthrough and an intimation that my overall contention in these two articles on Protective Edge may just be on the right track.

“In a dramatic political about-face, a senior Hamas official said that his movement may seek to negotiate with Israel, claiming that Islamic faith does not prohibit such contacts. Moussa Abu Marzouk, deputy head of Hamas’s political bureau, told Palestinian Al-Quds TV on Wednesday that Hamas may be forced to negotiate with Israel, since the vast majority of Gaza Strip residents demand it.

“From the point of view of Sharia (Islamic law),  I say this in all honesty, nothing prevents [negotiations] with the occupation. Just as you negotiate with it using weapons, you can negotiate using words,” Abu Marzouk said. “I believe that if things continue as they are now, Hamas may not have a choice.”

If true, this is a clear admission of defeat by Hamas. We will just have to wait and see.

But, adding all these articles up, we can notice a sea change in Hamas’s approach to Israel, out of necessity, perhaps, but a change nevertheless. It may be, finally, a recognition that they cannot destroy Israel; that (although they would never admit it) democracy may well be (if not always) stronger than theocratic autocracies, dictatorships and even totalitarian despotisms: when roused, strong democracies will persevere and overcome, because their fighters do not seek death but life, and will strive to protect and preserve it while their ideological opponents seek death and glory, a literally fatal combination. Further, if you are dead, you cannot continue to pursue glory.

Of course, whether such negotiations would be in good faith is another matter, part of which is the Hamas Charter, of course.

I haven’t forgotten “proportionality”: those who seek to accuse Israel of a disproportionate response to Hamas should read the following articles from the Elder of Ziyon blog: the first is on Hamas’s violation of human rights in attacking Israel.

This is followed by two articles on Israel and proportionately:

Israel is not violating international law in Gaza, part I
Israel is not violating international law in Gaza, part II

Anne adds:

I too discussed Israel’s proportionate response in my post on The disproportionate focus on Israel’s proportionality.

The subject was also brought up in an earlier post, The disproportionate hatred of Israel in which I quoted from Shoshana Bryen’s article on The Doctrine of Proportionality.

Brian, thank you once again for providing a different angle and a deeper insight into the repercussions of Operation Protective Edge. It is interesting, though maybe a bit depressing, that the outcome of the war – whether victory or defeat – depends on the viewpoint of the author.  That in itself would suggest that Israel’s victory was not outright.

Will Hamas live to fight another day? Despite the optimism in some of the quoted articles, I fear the answer is Yes.

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4 Responses to Guest Post: Protective Edge: Did Israel win?

  1. peteca1 says:

    it is hardly necessary for me to tell you that the world has become a topsy-turvy place. it is almost as though the people running it – are conducting some sort of “social experiment” to see if they can get away with a completely new set of rules 🙂

    anyway … the outside world does not CARE about the winner of Protective Edge. sorry to state that so bluntly. but NOBODY is talking about it at all. Only Israel and Hamas are actually considering such a question. as soon as the ceasefire was declared, the outside world breathed a sigh of relief and immediately MOVED ON. Within a day, the whole incident was completely forgotten, as if it barely even happened.

    I am not sure what the “outside world” expect the outcome to be, from these clashes between Israel and Hamas. It’s almost as if the message is … “do whatever you want on a daily basis – just dont bother us with any big wars”. truly, that seems to be the attitude. right or wrong, thats whats happening.

    I am just making an observation – based on what I see in the global media each day. take it for what it’s worth.

    Pete, USA

    • anneinpt says:

      You make a very good point Pete, though it really is rather sad from our point of view. However, even though the world in general doesn’t care, you can be sure that the likes of Hezbollah, Iran, Islamic Jihad and most importantly, ISIS, do care very much indeed.

      If they think they can take on Israel and win, then they will be encouraged to take their war to the rest fo the world, who they probably reckon are not as strong or as determined as Israel.

      So no matter what the world thinks, it’s important what the terrorists think. That’s why we’re so engaged in this navel-gazing.

      And I don’t think the world has absorbed this point at all.

      • Brian Goldfarb says:

        It is also important to note that various military organisations are very interested in this tiny neck of the woods, because, in the case of, e.g., the US military (and to a lesser extent the UK military – see Richard Kemp’s frequent contributions to the debate), they know very well what’s at stake. They know where their front line runs, and it’s through the Middle East. Their politicians might not but the soldiers do, witness only the rapid resupply of the IDF by the US Dept. of Defense and that Vince Cable’s threats to Israel’s military contracts have been silenced (our own MP, a Lib Dem and a Government Minister, rapidly forwarded our letter to her onwards, making it clear that she was as upset as us at his stance).

        The more terrorist organisations are weakened, the better western military forces like it, and many politicians also, even if they aren’t as vocal as we might like.

  2. peteca1 says:

    Anne … I hope my previous remarks were not too discouraging. But the message I conveyed seems typical of how the global media is dealing with things. What is missing in the press coverage is any kind of “connection” between Israel vs. Hamas and the jihadist networks in other areas. The media seems to treat Gaza as a “totally separate issue” from developments in other parts of the Middle East. And indeed, there is certainly a movement afoot in Washington DC and European capitals to avoid linking these events … there is an assumption that things can be dealt with separately. Hence … Gaza is separate from Syria … which is separate from Yemen … which is separate from Iran … and so on. Perhaps western politicians dont want to connect the region – because it would be clear that they have NO policy that could deal with the entire problem.

    To me it looks like Israel was the “temporary winner” of Protective Edge. The action did buy you time, and it did defuse the immediate threats that Hamas had built up. That has to be a positive thing. The great risk during the last encounter in Gaza – was whether Hezbollah would support Hamas by staging its own attacks on N. Israel. That did not materialize. Therefore, the lack of unity between these terror/insurgency organizations is giving Israel time. But if that unity becomes a real factor in the future – Israel will have a much bigger battle on its hands.

    Pete, USA

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