Category Archives: Information you need

Who is the real criminal?

IDF_Military_Advocate_General_Hat_Badge

Cap badge of the IDF’s Military Advocate General’s department.

“Truth,” it has been said, “is the first casualty of war.”

Philip, 1st Viscount Snowden (1864–1937)

 

As I write this post it isn’t clear if the current round of fighting between Hamas and Israel is winding down or not. What is clear is that the Islamist terror group is waging  war as much by telling lies as by launching missiles and digging attack tunnels. Some of the lies are obvious (“Israel shot down the Malaysian airliner over the Ukraine to divert attention from its war on Gaza”!); others are less so.

One of the most significant and unrelenting lies, intended to brand Israel as an outlaw state, is that of accusing the Jewish state of “war crimes.” So common are the allegations of such crimes against Israel that many Jews are, in their ignorance of the facts, reduced almost to desperation, pleading, “We don’t care if they are crimes or not, we need to act this way for our own protection.” However, these particular lies are the ones with the least foundation, and the easiest to dismiss.

Laws of War

The great American Civil War general William Sherman famously said, “War is hell,” but for centuries civilized nations have striven to make sure that it is not unmitigated hell. There is a difference between the Mongol Hordes of Genghis Khan destroying all before them and the armies of Britain and France in the Napoleonic wars. The former used violence on all and sundry; the latter tried to limit the fighting to the soldiers and leave the civilians alone. Efforts to limit the inescapable brutality of war became known as the “Laws of War” by soldiers and as “International Humanitarian Law” (IHL) by human rights advocates. It’s important to realize these laws were developed not only by starry-eyed philosophers, but by soldiers. They are not intended to make it impossible to fight, but rather to limit the damage done by waging war. Once you understand what the laws actually state, you will realize that Israel does not infringe them at all.

Principle of Distinction

The most basic principle of IHL is that there should always be a clear distinction between the military and civilians. The military have the right to fight and must be treated as a prisoner-of-war if captured.

Civilians have no right to fight and cannot be targeted. The Hamas missiles that have been launched in their hundreds at civilian population centers are illegal, and every single one of them is an individual war crime.

Each side in a war has a duty to keep the military physically separate from the civilians.

Legitimate targets

It is not, however, just enemy combatants that can be legitimately targeted. Arms caches, supply routes and anything that supports the military can be destroyed. What of institutions and resources that are used by both the military and civilians? An example might be a railway line that is used to carry both civilian traffic and troop trains. In such instances the principle of proportionality comes into play.

Proportionality

Those in the media and the world of politics who point to the disparate number of Israelis and Palestinian Arabs killed and shout “Disproportionate” are demonstrating either their ignorance or their mendacity. There is no rule that states that you are allowed to kill only as few or as many of the enemy as they have been able to kill of your people. The concept of “proportionality” has to do with the degree of military advantage you can gain from destroying a military target despite the fact that nearby civilians will inevitably die.

Human shields

A very bald statement leaps out of the dry, legalistic text of the Fourth Geneva Convention. Article 28 states, “The presence of a protected person may not be used to render certain points or areas immune from military operations.” When the residents of a building are warned by the IDF that it is about to be bombed, and Hamas calls on civilians to bring their children to stand on the roof of the building, the IAF is within its rights to bomb the building and kill all of the “innocent” civilians on the roof! The responsibility for their deaths would be on their own heads and the heads of the Hamas officials who encouraged them to put themselves in harm’s way. Whether the IDF, would actually carry out such an attack is another matter.

The bottom line

The entire Hamas military strategy is based on war crimes. They illegally target Israel’s civilians while illegally hiding behind their own. On July 9, Ibrahim Khraishi, the Palestinian Arab representative to the UN Human Rights Council, made an astonishing admission during an interview on Palestinian Authority TV.[1] Asked if the PA should accuse Israel of war crimes before the International Criminal Court, he responded, “The missiles that are now being launched against Israel, each and every missile constitutes a crime against humanity, whether it hits or misses, because it is directed at civilian targets… Many of our people in Gaza appeared on TV and said that the Israelis warned them to evacuate their homes before the bombardment. In such a case, if someone is killed, the law considers it a mistake rather than an intentional killing because [the Israelis] followed the legal procedures.”

It would be hard to get a clearer declaration of who is right and who is wrong in this matter from a more authoritative (if surprising) source!


(A slightly different version of this article appeared in the UK weekly Jewish Tribune on July 24, 2014)

1 https://www.youtube.com/watch?v=DjzS27ylCZ8

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Let’s get this settled! (Part 2)

What’s the law?

Almost no subject in contemporary Israel generates as much controversy (at home and abroad) as the issue of Jewish communities in Judea and Samaria. Let’s try and take as objective a view of the matter as we can. At this stage, let’s ask ourselves only one question; are Israel’s actions legal or not?

Legal status of the Territories: Occupied or Disputed?

Between it’s reestablishment in 1948 (after a hiatus of about 2,000 years) and the Six Day War of 1967, the Jewish State was a tiny thing. At its narrowest point only nine miles of Israel lay between the Mediterranean Sea and the boundary with Jordanian controlled territory. Jerusalem was divided.

On June 5, 1967 Israel went to war to lift the illegal blockade on Israeli ships traversing the Suez Canal[1]. In less than a week, Israel extended its control over Gaza[2], the Sinai Peninsula, East Jerusalem, Judea and Samaria and the Golan Heights.[3]

Israel distinguishes between greater Jerusalem, which has been annexed to Israel by Act of the Knesset, and the rest of the Territories that have not. Arab residents of Jerusalem are entitled to certain rights (they can vote in municipal elections, receive National Insurance payments etc.) and can obtain other rights by requesting Israeli citizenship. The rest of the world makes no such distinction, and when they speak of “occupied territory” they are including the Old City, the Western Wall and the Temple Mount as well as Jerusalem suburbs such as Ramat Eshkol and Gilo.

The Western Wall at night

Occupied Palestinian territory?

It has been the position of every Israeli government since 1967 that the Territories are undistributed areas of the Mandate of Palestine to which the Jewish National Home provision still applies. As such, Jews have no more, or less rights to them than to Tel Aviv. The 1948 ceasefire lines were never recognized by anyone as permanent borders and represented only the places where Arab armies were halted in their attempt to destroy the nascent Jewish state. The Territories are areas of disputed sovereignty to which Israel has a strong claim under International Law.

If the Territories are areas without a prior, legitimate sovereign, then they cannot be “occupied territory” under the definition of customary international law.[4] Hence Israel’s assertion that she is not bound by the provisions of the Fourth Geneva Convention (Geneva IV) when dealing with the Territories and their residents. Nonetheless, Israel has committed to apply the humanitarian provisions of Geneva IV, without prejudice to its claim on the Territories[5].

Others point to the sweeping nature of Geneva IV[6] as justification for its application to the Territories. Israel retorts that the very same clause cited limits the application to conflicts between states.[7]

Settlements: legal or illegal?

The legal status of the Territories is not the end of the matter. If they are not occupied, then Israel may have a strong claim to settle its citizens there. After all, the Mandate called for the “close settlement” of Jews on the Land.

But what if the Territories are, contrary to Israel’s position, occupied? And what of Israel’s unilateral decision to apply the humanitarian provisions of Geneva IV?

Article 49

The main accusation leveled against Israel (aside from incoherent rants about “stealing land”) is that the movement of Israeli citizens to the Territories constitutes a breach of Article 49 of Geneva IV. The relevant section of the text reads:

The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.

It’s this clause that is the basis for the accusation that the settlements are illegal. Its unequivocal and broad language seems to support such a position. Yet Israel’s High Court ruled that Article 49 clearly could not be taken as forbidding any population movement at all. It ruled that, since Geneva IV was drafted immediately following WWII, it should be understood in that context. The Nazis engaged in mass, forced population transfers in Czechoslovakia, Poland and Hungary before and during the war in order to displace the local populations and even endanger their separate existences as races. Indeed, the International Red Cross’ authoritative commentary to the Convention confirms that interpretation. Regardless of ones views on the wisdom or morality of settlement activity, it hasn’t displaced a single Arab from their homes in Judea, Samaria and Gaza.


1 The fact that Arab armies were massing at Israel’s borders with the express purpose of annihilating the Jewish state was not, technically, the legal basis for the war.

2 Most Western Governments are now non-committal on the issue of Gaza’s status. Campus radicals may use terms like “Gaza Ghetto” and “the world’s largest open air prison”, but even the UN’s official (“Palmer”) report of September 2011 recognized that “The naval blockade was imposed as a legitimate security measure in order to prevent weapons from entering Gaza by sea and its implementation complied with the requirements of international law”.

3 The Sinai was ceded to Egypt under the 1978 peace treaty with that State. Israel unilaterally withdrew its civilian population and troops from Gaza in 2005. Since then Israel has accepted no responsibility for the residents of Gaza, although she has not abandoned her theoretical claims on the area. The issue of the Golan Heights is a complex one and seldom comes up in debate. For all practical purposes the discussion on settlement is now limited to Judea and Samaria.

4 The Hague Conventions (1907) and the Geneva Conventions (1949) address issues of occupation of the territory of one state by the armed forces of another state (the “high contracting parties” mentioned in the conventions are sovereign states).

5 Despite many claims to the contrary, Israel’s own High Court of Justice has never ruled on the applicability of Geneva IV to the Territories. Although the court has invalidated certain orders and actions of the IDF on the grounds that they contradict Geneva IV, they have done so on the logical grounds that the orders were issued under the assumption that they comply with the convention. If they are found to not comply, they are void on what might be called a “can’t have your cake and eat it to” principle.

6 “the present Convention shall apply to all cases of declared war or of any other armed conflict…”

7 “…which may arise between two or more of the High Contracting Parties” Both citations from Article 2.

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The Borders That Never Were

When the guns stopped. July 20, 1949Recent pronouncements by the US president have again focused attention on the “pre-1967 borders of Israel,” and they are being spoken about as if they lay in some golden age of legitimacy that Israel abandoned when it made war on the Arab world in 1967.

Some years ago I was on a cable TV show in Toronto, part of a panel of pro- and anti-Israel speakers, and one of my interlocutors was an attractive young Arab woman who represented the Canadian Branch of an Arab-American organization. The issue of Israel’s security barrier came up, and she trotted out the standard line about Israel lying about the anti-terror motive that Israel claimed for building it. Surly, she claimed, if Israel were only motivated by a desire to fight terrorism, they could have built it on “their own land” inside the “1967 borders.”

I asked her if she was actually stating, on national TV, that she as a leader of a major Arab organization in North America was publicly accepting the legitimacy of Israel within its pre-1967 boundaries – a recognition never before proffered by any Arab government (except for Egypt and Jordan)?

She spluttered and tried to change the subject, but the cat was out of the bag – and she was the one who had untied the string!

We all know that Israel is a unique country, but one of its lesser-known peculiarities is that for most of its history, it had no borders. The Jewish state’s first, recognized border only came into being in January 1980, with the implementation of the peace treaty with Egypt. Before that, all Israel had were ceasefire lines.

In 1947 the UN had proposed a partition of the area between the Jordan River and the Mediterranean into Jewish and Arab states. The Jews (reluctantly) accepted this suggestion; the Arabs rejected it. Local Palestinian Arabs and the armies of five Arab states set out to strangle the Jewish state in its cradle. The Jews stubbornly refused to die, and when the fighting stopped in July 20, 1949, they were in possession of 50 percent more land than had been allocated to them under the UN plan. But this was not some new agreement; it just happened to be where the Jewish forces had beaten their genocidal attackers to a standstill. That’s where the situation was and stayed until the attack was renewed against Israel in 1967.

The “pre-1967 borders” were really the post-1949 ceasefire lines. These boundaries of a failed genocide are today being spoken of as if they are Israel’s natural borders that the Jewish state is required to draw back to. She is not. Even the UN Security council accepted this point when, in the famous resolution 242, they looked forward to a peace in which Israel (like other states in the region) is entitled to boundaries that would be both “secure” and “recognized” – something the 1949 ceasefire lines manifestly were not.

Whatever your views are on the desirability of Israel making territorial concessions, don’t fall into the trap of thinking that Israel is required to return to the borders that never were.

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