Stop the Rockets - Bomb Gaza

The Assault on Israel s Right to Self-Defense http://www.israpundit.com/2008/?p=23 was described by Abraham Bell in his article on International Law and Gaza. Dr. Avi Bell is a member of the Faculty of Law at Bar-Ilan University, Visiting Professor at Fordham University Law School, and Director of the International Law Forum at the Jerusalem Center for Public Affairs. He clearly advised that Israel has the right of self defense and described the law as it pertains.

But I was left with some nagging questions. What do the principles
and rules he set out mean in practice. I wanted to know if Israel had
no choice but to invade or whether it could just use artillery and
bombs even unintelligent inexpensive bombs. I fully understood that
the siege was legal and so were targeted killings though our
 international friends  disagree.

I asked Bruce Tucker Smith, JD, LL.M. (International Law), Lt Col
USAFR (ret), the Co-author  Seventh Psalm .

Here is his considered opinion.

 Criticism leveled at Israel for her response to terrorist attacks by
Hamas in the Gaza says more about those who criticize Israel than it
does about the legality of the reprisals.
 Can Israel response to Hamas  attacks? In what strength? By what
means? These questions are traditionally answered in the salons of
international legal debate, by an examination of the status of the
combatants.

 We therefore ask: What is Gaza? What is Hamas? Answer these
questions honestly, and there is little room for discussion or debate
about the legality or legitimacy of Israel s military responses to
date&or her options in the future. Answer these questions honestly
and you will have taken a long step toward resolving the endless
criticism of Israel s military response to the endless stream of
rockets cascading into Israel from the west. (In fact, more than 5000
since Israel ceased her occupation of the Gaza.)

 Gaza is not a formally-defined, internationally-recognized state. It
is, at best, a protectorate or a territory&but certainly it does NOT
enjoy the status of international  statehood  that would entitle such
an entity to claim sovereignty over her national borders and the land
within.

 Hamas, of course, is the Islamic Resistance Movement, which became
active in the early stages of the intafada. It operates primarily in
the Gaza (and also in Judea and Samaria). Its stated goal: the
eradication of the Israeli people and the establishment of an Islamic
Palestinian state in place of Israel. Hamas, of course, has the
outright backing of Iran in its genocidal efforts to murder Israelis.

 What Hamas is NOT, is a recognized armed force operating under the
aegis of a duly-elected state; it is not a signatory to any of the
Geneva Conventions; it is not a member of either the United Nations
or the Security Council; it does campaign openly under a national
flag and it s operatives don t wear recognized badges of nationality
or military rank. In the legal parlance of the  Law of War,  Hamas,
as an entity, is not a recognized  combatant  and, hence, not
entitled to the protections of the Geneva Conventions. The latter
cannot be strongly enough emphasized: Hamas, and the people who
support or conceal its efforts, are entitled to NO special
protections under any aspect of the Law Of War, of which the Geneva
Conventions are but a part.

 By contrast, those nations, armies or entities who DO ascribe to and
respect the Geneva Conventions; who DO campaign under a national flag
and chain-of-command ARE entitled to the special protections of the
Conventions!

 As the Olmert government has repeatedly said, Israel will not
negotiate with entities that do not recognize the legitimate demands
of the international community, as voiced through the United States,
European Union, the United Nations and Russia! Hence, Israel s use of
force against Hamas.

 The United Nations Charter, Article 51, clearly and plainly provides
Israel with the necessary legal armor to pursue and rout Hamas.
 Nothing in the present Charter,  Article 51 reads,   Shall impair
the inherent right of individual or collective self-defence if an
armed attack occurs against a Member of the United Nations, until the
Security Council has taken measures necessary to maintain
international peace and security. 

 Other than a few weak-worded Resolutions, the Security Council has
failed to take action to protect Israel s safety and
sovereignty hence, she is free to act as she will militarily! And, in
my opinion, she is free of many of the traditional limitations on the
use of military force   at least where Hamas is concerned.

 The oft-misunderstood  rule of proportionality  is usually cited,
wrongly, by the left in critique of Israel s operations against Hamas
in Gaza.

 One must recognize that the  rule  is, in fact, no rule at all. It
is not clearly defined in any statute or treaty. Rather, it can best
be described as the resulting synthesis of  customary international
law  which is derived from a reading of the ancient Hague Conventions
(written in an era when warfare was defined as set-piece battles,
conducted by brightly-clad armies amassed on the sunlit fields of
Europe) and the 1949 Geneva Conventions which, in part, proscribe
armed reprisals against civilians. Sadly, the  rule  is frequently
bent or twisted to meet the ends of the particular sophistry at hand.

 In its simplest application, the  rule  generally means that an army
cannot inflict collateral damage upon an enemy combatant (or the
surrounding civilian populace) in excess of the legitimate military
advantage conferred upon the attacking army. In other words, a
nation s military response must be necessary and proportional to the
injury suffered.

  Legal scholars  frequently say,  If someone punched you in the
nose, you don t burn their house down.  To be sure, those are
seductive words, rationally attractive, and intellectually
inviting&but utter hokum in the face of reality. Taken to its logical
absurdity, such a definition of the  rule  would prevent an army from
EVER amassing superior firepower against an enemy, lest that army be
accused of a disproportionate use of force! The fact is, wars are won
when one side utilizes a disproportionate amount of force to defeat an
enemy&otherwise, the Third Reich would still sit in power with the
Allied armies resting somewhere near the Seine River.

 The  rule  is often manipulated in the court of public opinion,
particularly in the era of  asymmetrical warfare,  the current
buzz-term which describes the conflict between western nations who
possess large standing armies and billion-dollar gadgetry and
terrorist groups who employ simple, terroristic, and patently illegal
means of waging armed conflict.

 The world s (leftist) academic  elite  and media sympathetic to
Islamic fundamentalism almost always focus on Israels  response to
terrorism! No doubt, leftist apologists are motivated by some
misplaced, misguided sense of  unfairness  that a well-organized,
well-trained and well-equipped IDF would pursue and kill Hamas
terrorists who intentionally clad themselves in civilian attire and
hide their operations in schools, hospitals and Mosques.

 The simple fact is that the  rule  of proportionality shrinks to
near inapplicability when Hamas uses civilians as shields or when it
purposely attacks the innocent the central most effective tools in
the terrorist s arsenal.

 Another common misstatement in the public discourse surrounds the
killing of civilians. Of course, NO one would countenance murder and
nothing in this essay should be construed as a brusque dismissal of
civilian deaths &but a distinction in the Law of War regarding
civilian deaths is frequently and intentionally ignored. The Law of
War proscribes the INTENTIONAL targeting of civilians, not the
inadvertent and unfortunate loss of civilian life in an armed
conflict. Yet, whenever inadvertent civilian deaths DO occur in the
Gaza or in the West Bank or in Baghdad, the left immediately and
uniformly decries those deaths as  war crimes    which they most
certainly are not!

 Such is the nature of public debate, particularly in the wake of
9/11.

 In short&Israel s defense forces are entitled to use whatever means
is at her disposal to search out and destroy terrorist operatives.
Nothing in international law precludes a vigorous, intense and
effective military campaign to destroy terrorist operations. That
means, Israel may use air and ground-artillery resources  as she
will against those Hamas operatives (I hesitate to us the word
 military    since Hamas is NOT a recognized military force.) which
are used to inflict casualties upon Israel.

 That means Israel may use her army in large or small measure to
attack any place or person that attacks Israel. That means Israel can
bombard Hamas targets as militarily necessary to render it impotent
against a subsequent wave of Israeli soldiers. Although politically
preferable, nothing in international law absolutely requires Israel
to use  smart  munitions in its operations against Hamas.

 If Hamas attempts to shield its operations with truly innocent
civilians or children it is Hamas and not Israel, who has committed
an atrocity  an actionable war crime of the most heinous
proportion! .

 In sum: Israel is free to employ ALL munitions, tactics, equipment
and personnel in her arsenal to defend herself against the outlaw
Hamas terrorist organization. Short of the intentional targeting and
murder of truly uninvolved and innocent civilians, Israel can (and
should) operate as freely as she desires to protect her territorial
sovereignty and the lives of her citizens.

So, it is not international law that Israel is concerned about. The
Government of Israel is more concerned about the cries of the
international community than the cries of its children and mothers.
It is more concerned with the lives of Arabs than the lives of its
own citizens including its soldiers.

Israel has the right to bomb Gaza and use artillery. Its about time
they did.

If Israel invades instead with the loss of many of its own soldiers,
I submit it would be guilty f a war crime against its own people. At
a minimum Israel would be guilty of criminal negligence if it sent
the IDF soldiers to their death rather than to bomb.

It is morally repugnant to sacrifice your own soldiers to save the
lives of your enemies. Forget about world opinion.