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Israel, Gaza and International Law By: Alan M. Dershowitz
FrontPageMagazine.com | Tuesday, January 27, 2009

The cease fire on the ground has not ended the war of words against Israel. Indeed, efforts to charge Israel with war crimes and other violations of international law are escalating. The time has come, therefore, for a common sense legal and moral analysis of the events in Gaza and southern Israel.

Let us begin with an argument that is frequently made against Israel. It is pointed out by supporters of Hamas that the official governing authority of Gaza is Hamas, because Hamas won the election. To the extent this is true, however, it is an argument in justification of Israel’s actions. If Hamas is the official government of Gaza and if Hamas ordered the firing of more of than 6,000 deadly rockets at Israeli civilians, then it follows that the government of Gaza has engaged in an armed attack against Israel under Article 51 of the United Nations Charter. In other words, the government of Gaza has declared war against the government and people of Israel. This should not be surprising, since the Hamas Charter calls for the military destruction of Israel.

Under international law, and under the UN Charter, Israel has the right to respond to these thousands of armed attacks. Indeed every rocket fired into Israel is an armed attack and Israel is entitled to take whatever military actions is deemed reasonably necessary to stop these armed attacks from occurring. If Hamas were merely a small terrorist gang operating from Gaza but without the approval of the government, it would be more difficult to justify a military response that destroyed government buildings and targeted police. Israeli military actions resulted in civilians dying. Precisely how many is hotly disputed: a study conducted by the Italian Newspaper Corriere Del Sera disputed Hamas figures and put the total number of Palestinians killed, including Hamas terrorists, at less than 600. The sad reality is that people who voted for and actively support a terrorist government bear more responsibility for the actions of their government than they would for a gang operating against the wishes of the government. Surely the voters in Germany who elected Hitler bore more responsibility for Nazi atrocities than the people of Iraq did for the atrocities of the dictator Saddam Hussein, who was never fairly elected.

Israel clearly had to right to take whatever military action was necessary to stop the Hamas government from playing Russian roulette with the lives of its children. So far, no problem under international law. But here’s the rub. International law also requires that Israel’s actions must not be disproportional to its military aims and it also prohibits the willful targeting of Palestinian civilians.

To make things even more complicated, international law prohibits the use of human shields to protect combatants from lawful military actions taken by those against whom it has waged an armed attack. And there can be absolutely no doubt that it is the official policy of Hamas to use children, women, schools, mosques, hospitals and other civilian institutions and areas as shields to protect its combatants from legitimate Israeli military actions. In addition to the video evidence showing Hamas fighters deliberately placing their rockets adjacent to UN schools, mosques and to residential areas, there are the express statements of officially-elected Hamas leaders both before and during the fighting. Consider the following public statement delivered by a Hamas legislator, transmitted on Hamas television and widely circulated by video. The legislator’s name is Fathi Hammad and here is what he said:

“[The enemies of Allah] do not know that the Palestinian people has developed its [methods] of death and death-seeking. For the Palestinian people, death has become an industry, at which women excel, and so do all the people living on this land. The elderly excel at this, and so do the mujahideen and the children. This is why they have formed human shields of the women, the children, the elderly, and the mujahideen, in order to challenge the Zionist bombing machine. It is as if they were saying to the Zionist enemy: ‘We desire death like you desire life.’”

There are videos available for all to watch in which Al-Aqsa TV news broadcasts a report showing a crowd of civilians gathered on the roof of a home that was a military target. Indeed those who arranged for these human shields to protect that military target do not shy away from actually using the term “human shield.” On another occasion, Hamas leader, appearing on television demands that “the people of Palestine should gather as one to protect the Jihad warriors’ house,” calling for these civilians to “die as warriors.”

So here is the legal dilemma faced by democracies such as Israel. They have every right under international law to take whatever military actions are necessary to stop the rockets randomly fired at their civilians. Their enemy uses human shields to prevent Israel from destroying the rockets without also killing Palestinian civilians. All the law requires under these circumstances is that Israel take reasonable precaution to minimize enemy civilian deaths in order to prevent the murder of its own civilians. Has Israel taken such precautions? Let retired British colonel Richard Kemp answer that question as he did in a recent BBC interview. He said that there has been “no time in the history of warfare when an army has made more efforts to reduce civilian casualties and the deaths of innocent people than the [Israel Defense forces did in Gaza.]” To accuse Israel of “war crimes” under these circumstances is to distort international law and expose the bias of the accuser.

Alan M. Dershowitz is a professor of law at Harvard. He is the author of many books, including, most recently, “The Case Against Israel’s Enemies.”

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