The Nazareth Book – a Prospectus.

 

By Raphael Israeli

 

 This book is about a controversy that  been gripping the Arab  community in Israel over the past few years and pitting its  growingly  combative Muslim majority against the smaller, doubly marginalized and  struggling for survival Christian minority. While this struggle has brewed under the surface for many years, it has  now come to the fore as an open, and often violent conflict, in the context of the Shihab-a Din Affair in Nazareth.

In the first decades of Israel's existence Arab politics were dominated by either tribal notables, who were themselves  protégés of the establishment parties such as Mapai, the antecedent of today's Labor,  which ruled the country until 1977, or the Christian founders and leaders of the Communist Party who championed the Arab-nationalist cause, it being understood that as Marxists they did not have to embrace the Islamic elements of most Arab nationalist movements. However, as they were gradually pushed to the sidelines by the much faster growing Muslim community which constituted the rank and file of the Party and as young Muslim members climbed the ladder of the leadership and displaced the founders, personal jealousies compounded by  a fierce sense of frustration over the loss of their positions, drove the Christians to their double alienation, from the country as an Arab minority and from their  Muslim fellow Arabs as a Christian, and now displaced,  minority among them.

There is no doubt that two powerful parallel processes have precipitated the rift between those two communities into the open : on the one hand the rise of the Islamic Movement in Israel since the late 1980's' and at about the same time the collapse of communism throughout the world. The two processes were linked inasmuch as there  developed a zero-sum rapport of force between them: the rise of Islam drove away many former communists into the arms of the Islamic parties, and the waning away of communism, which used to be the bastion of Arab nationalism, encouraged many  Muslims into the open arms of the fundamentalists, who came up with a new program to incorporate those lost souls  and provide them with new ideological and political anchors.

When Muslim fundamentalists in the city of Nazareth, which was Christian but is now 70% Muslim, invaded the plaza in front of the Basilica of the Annunciation on Christmas Eve in 1997, they signaled that they wanted their Muslim majority to be brought to bear in the conduct of  their local affairs. Their demands were clear: since they claimed that the plaza was waqf (Holy Endowment) land, they must enforce a total cessation to the work of paving the plaza, initiated by the Municipality and the Government in order to accommodate the Pope and the millions of pilgrims expected for the Millennium ceremonies, and instead build a mosque on the premises. The grandiose plans advanced by the squatters, to erect a minaret 87 m high, which would have both dwarfed the Basilica and obstructed the view to it, showed that the plans were conceived well in advance and revealed once the Islamists thought the opportunity had come.

Previously, a school occupied that plot of land, which belonged to the Israeli government who allowed the Municipality to destroy it in order to make way for the plaza and the Millennium festivities. As long as the school operated, no Muslims ever raised any opposition to the Millennium plans, but after the plaza was cleared and the work started, the Muslims decided to strike. They feared that if their now-Muslim city were allowed to become the focus of Christian celebrations which might fixate in world public opinion its image as a Christian city, their quest to  tarnish that image might be irreversibly harmed. They said very clearly to this author, who was appointed a member of the Commission of Inquiry to provide solutions to the rift, that they would rather suffer the economic backlashes of the rift, which would deprive them of tourism and pilgrims, than witness the ongoing encroachment on their cities by world Christianity.

The Israeli government adopted the process of law and petitioned the courts to order both the evacuation of the squatters from  a land that was not evidently theirs, and the demolition of the vast tent-mosque that was erected illegally on that ground. The very fact that the government made itself ready to negotiate with the invaders turned the issue from a simple  criminal case of squatting and violation of urban planning laws, into  a contentious affair and a cause celebre which attracted the attention of the media and of public opinion throughout the world. In the meantime, two election campaigns took place which helped immobilize the situation : in  1988, the local elections were fought against the background of the mounting tension between Muslims and Christians in Nazareth, where the Shihab-a -Din Mosque Project became the key issue and helped the Islamists to conquer the majority in the City Council, and then the national elections in 1999, where Ehud Barak from the Labor Party battled to depose incumbent Prime Minister Netanyahu of the Likkud, and was much in need of the Arab-Muslim vote to achieve his goal.

Indeed, immediately after Barak's election, with the massive support of the Arabs, he set up a ministerial committee which gave its stamp of consent to the building of the mosque, albeit on a reduced scale. But then the courts delivered their judgment in October 1999, which lashed out at the Islamists' claims of ownership as having no leg to stand on, but since the land belonged to the government, it could formally yield it to whoever it wished. However, the point was not lost on anyone that by yielding to the illegal squatters, the government had both accepted the norm set by the Islamists that by invading property and using force and threats, they are rewarded in the final analysis, something indisputably inimical to the rule of law; and that by giving up its rights on that plot of land, the government was unnecessarily arousing the wrath of the Christian world, not only of the local Christian denominations, against Israel.

As the Christian pressures built up, which involved the Pope in person and President Bush, the government of Ariel Sharon  took up the issue once again and decided to rescind the previous government's decision and cancel the construction of the mosque. But the saga has not ended. Before the Muslims resort to other means, which might explode into violence and bloodshed, they are applying to the Israeli Supreme Court  to reverse the government's decision. More is expected to com. Stay tuned.

 

Raphael Israeli

 

The author is a professor of Islam and Middle East at Hebrew University, Jerusalem.

 

Copyright - Original materials copyright (c) by the authors.

 

The New War

 

By Raphael Israeli

 

Abu-'Ubeid Qurashi, one of the aides of Osama Bin Laden, published after the September 11 Disaster in the Arabic press and in the al-Qa'ida site on Internet, a very stunning article regarding his organization's strategy in its unseemly confrontation with the US and western civilization in general. The article demonstrates that not only do those champions of evil do their home work adequately, and that they are equipped with the requisite patience, sophistication and methodical thinking, the fruits of which we saw in the deadly precision of their operation against the Twin Towers, but that we too have something to learn in our war against terror. For it transpires that the Muslim terrorist organizations which have been waging war against us directly, are inspired by the Qa'ida  war doctrine, and it is not too early to try to comprehend their schemes.

 

The author, who has obviously  studied the most recent  western research in matters of the future battlefields and war doctrines, has come up with conclusions that send shudders down your spine : first, that the era of massive wars has ended, because the three war models of previous generations have been eroded;  second, the fourth-generation wars of the 21^st Century will consist of non-asymmetrical  confrontations between well-armed and well-equipped armies, who have a turf, a way of life and material interests to defend, and therefore are clumsy; and small groups armed with light weaponry only, who have no permanent bases and are on the move at all times. Thirdly, in these wars, the main target is not the armed forces, but civil society that has to be submitted to harassment and terror to the point of detaching it from the army that fights in its defense; and fourthly, television is more important than armored divisions in the battlefield.

 

This war doctrine lay in the gray zone between war and peace. Namely those who initiate this kind of war, e.g. by wanton terrorism, would not declare it openly, and would leave it to the defendants to announce war and thereby become the "aggressors". They themselves would create atrocities that are sure to attract the attention of Television so as to strike fear in the heart of the enemy, and retreat to their bases. But when the victim strikes back in self-defense, television can again be counted on to show the "abuses" of the "aggressor" and gain sympathy for the cause of the terrorists.  On television, the huge armies which crash everything on their path will always look worse that the "poor", "frustrated" "freedom fighters" who are "oppressed" and "persecuted" by far superior troops.

 

Thus, the author could show that small groups of poorly equipped Mujahideen have been able throughout the past two decades to defeat super- and lesser powers: the Soviets in Afghanistan, the US in Somalia, Russia in Chechniya and Israeli in Lebanon.. According to this analysis, the three major components of modern warfare are : early warning, the ability to strike preventively and deterrence, and these were exactly the elements that were paralyzed by al-Qa'ida on 11 September. As for the early warning, the writer claims that they have achieved a strategic surprise, in spite of American technology, on the scale of Pearl Harbor, the Nazi attack against the Soviet Union, the assault on the Cole in Aden and the Suez crossing in the Yom Kippur War. Therefore, the terrorists could deliver that deadly blow on September 11, and levy on the Americans a very heavy economic and psychological price.

 

The ability to deliver a preventive strike is linked, in the mind of the author to the issue of early warning, because when the latter fails, then a preventive strike becomes irrelevant,. But even if it had worked, there would be no one available to strike, as the terrorists are small, hidden and mobile. And finally – deterrence totally collapses in the face of the asymmetry between an institutionalized state which  entertains life and a desire to live and prosper, and a group of Mujahideen who is indifferent to life, and indeed desirous to perish in the Path of Allah and attain the delights of Paradise. Thus, since nothing can deter them, they can always determine, against all odds, when, where ,how,  what , and whom to strike, without fearing anyone or anything.

 

It is harrowing to reflect on how applicable is this doctrine in our daily lives here, not only by the Hizbullah in Lebanon, who is linked to the Qa'ida, not only ideologically, and has had some successes, but has also exported this doctrine to the Muslim terrorist movements in the Palestinian Territories, such as the Hamas and the Islamic Jihad. Moreover, "secular" organizations such as the Tanzim and the Aqsa Shahids, have been converted to these tactics, once Arafat's call for martyrdom, with himself at the helm, has become the favorite form of struggle against Israel.

 

There is, however, a way to  counter every deed or doctrine, with a view of reducing its effect , immunize our society from its deadly threat and eliminate the terror it imposes on us. For example, if they mean to detach our society from our armed forces, something that they have been partly successful in inoculating into our protest movements, maybe it is time for these elements to wake up as they realize that they have been unwittingly used by our enemies to attain their ends, to dismantle our national unity and incite us against our government and to play into the hands of their subversive doctrine. Or, if television is a declared means of discredit Israel, why can't we imitate the Americans in Afghanistan and the British in the Falklands and bloc the way of the media into the battlefield until the end of hostilities? Maybe it is better for our image  to be accused of obstructing the media than let them document the asymmetry between us and the  Palestinians in the field.

 

And if  terrorism has adopted the recourse of fighting against us by martyrdom, because there is arguably nothing to be done against "suicide-bombers", each of whom can terrorize and paralyze an entire public,  then we have to demonstrate, like President Bush, that we are facing not a war against individuals, who are desirous to die, and whom we cannot bring to justice when they succeed in their task, but against those who dispatch them, arm them, indoctrinate them, support them and finance them, and that as long as we keep them on the run, they will be less able to concoct and carry out their dark and cruel schemes against us.

 

Raphael Israeli

 

The author is a professor of Islam and Middle East at Hebrew University, Jerusalem.

 

Copyright - Original materials copyright (c) by the authors.

The Unanswered Questions of the War Against Terrorism

 

By Raphael Israeli

 

Since the onset of this unfortunate war, in which many civilians have lost their lives, while Israel  has been constantly and ineffectively changing tactics, in the face of an enemy who does not seem to care much about its own people,  a confused citizenry in Israel and around the world has been groping for clear war—goals, for quick moves that would  stun  the enemy and paralyze him, and for a rapid  and decisive end to the combats. Israel, instead of taking the initiative, as it had done in the heyday of its military glory,  seems to trail endlessly behind the Hizbullah and respond to it, and clumsily at that.

 

First of all,  the original sin has to  be acknowledged,  and that is the replay of the 1982 Lebanese war, in which Ariel Sharon had played the primary role, for which he was crucified by the very same leftists, politicians and media, who are waging the same war today, who accused him of the "murder" that he did not commit and falsely libeled him for posterity as the "butcher of Sabra and Shatila", a label that he tried to shed by embracing the suicidal course of his "peace-process", which has led us into the present impasse, only without the leadership and the military genius that he could have provided to extricate us from the deepening quagmire and from the  political and military pigmies who lead us into  nowhere.

 

In 1982, just like now, the PLO had been permitted for years to take over south Lebanon from its weak government, to dig in, to amass vast quantities of weapons, to train a large PLA (Palestine Liberation Army) , with the aid of Syria,  and to turn it into a state-within –a- state  and a launching pad for anti-Israeli acts of terror that demoralized and wore down the country during the 1970"s. A first attempt made  in 1978 to rid Israel of that  calamity, produced the ill-fated Litani  Operation, after which the  unfortunate UNIFIL came to dwell in that area and to perpetuate the tensions instead of fighting them and stemming them as befits a "Peace-keeping" force.

 

The incursion (not "invasion" as it was unjustly dubbed) into Lebanon in  1982 was much more significant that the preceding Litani operation,  for it constituted an entire concept aimed at addressing political and military matters concurrently. The ouster and humiliation of Sharon, which occasioned a retreat from his scheme, resulted in the stay of Israel  in Lebanon for years,  the total disgrace of Sharon and his grand designs, and  the shrinkage of his concept into a minimal defensive plan, which purported to hold the lines within enemy territory with the assistance of the mercenary South Lebanese Army. This worked, with reasonable efficacy, until the tired Israeli society was lured into pulling its troops unilaterally, in the process relinquishing the lines of defense that that had guaranteed Israel's safety for almost 20 years.

 

After  the mindless  and careless Ehud Barak, caved in to massive demands by scholars, "experts", journalists and "mothers", who promised us salvation  following the withdrawal that was effected under HIzbullah's  fire and clamors  of victory, those who gained temporary relief refused to see that under our noses a new version of the Fatahland of the 1970's was in the making. What did we wait for? To see the HIzbullah complete its digging in , it deployment, its take-over of the civilian rule, and its placing of  its thousands of Syrian and Iranian Katyushas directly targeting all Israeli cities in the north, under the watchful eyes of UNIFIL? We knew what they were doing, but we did not budge, for the sake of the "peace process", which more than any terrorist, has sunk us to the abyss.

 

When Ariel Sharon took over in 2001, he was aware of the change, but he too decided to do nothing, in order to embark on his ambitious "peace" move, which more than intended to resolve the  aggravating security issues of the country, was geared to redeem his image as the "Man of peace" and to deflect the public from his and his sons'  travails  with the State Prosecutor who probed into the record of that corrupt family.  As he was planning his escape from his dire straights, he came to face the HIzbullah tactics in the Gaza Strip, which he said he would relinquish unilaterally, and he uprooted 21 flourishing Israeli settlements, without any quid-pro-quo, and in response to the  accelerated harassment of the withdrawing Israelis by the Hamas, which was guided by the HIzbullah strategists who took residence in Gaza and applied their war tactics on Sharon. The stratagem worked admirably, as it had worked in Lebanon: foolish and suicidal Israelis withdrawing without any settlement and abandoning their settlements, military camps and vital installations to the mercy of the Hamas.

 

The new round began simultaneously and in coordination between the Hamas and the HIzbullah, this time under the sponsorship of Syria and Iran, using the same tactic of kidnapping soldiers to kindle the flame, then showering the Israelis with missiles from the positions that they had  foolishly abandoned in both places. Their reasoning was simple: they will inflict casualties on Israel and force it to release convicted terrorists in return for the soldiers; the "moderate" governments in place (Abu Mazen in Gaza and Seniora in Beirut), would support the terrorists who triggered the conflict, claim that they can do nothing against the Hamas and HIzbullah, and implore the West to help them  to stem Israeli "aggression" against "innocent civilians". The tactic works admirably, and Israel seems powerless to reverse the situation. For instead of taking the initiative from the beginning and launching a crucial, speedy and decisive attack, with all its power along the entire front,  against the kindlers of the flames, it adopted a piece-meal policy which has squandered the  worldwide support Israel had at the beginning and severed the long-rope that the US had put at our disposal.

 

Things can still be redressed: the full might of  the IDF can be still brought to bear, if a large force were to land north of the Litani, and from there fan out into the south and catch all the  fighters of the HIzbullah and their launchers and destroy them. The same can be done in Gaza, where no house has to be spared in the search of all terrorist infrastructure and illegal weapons in the making. At the same time, those who announce that they support the terrorists, be they the Lebanese or the Palestinian governments, have to be attacked and demolished, because supporters of terrorism are not "innocent civilian". You cannot boast that you are a Hizbullah supporter and distribute sweets when Israelis are killed, and then claim that you are "innocent" when you are attacked. The governments in both places have to be taken to task and made to choose between their terrorist sympathies, for which they  should be destroyed, or against them and show that they are taking up arms to confront them. They cannot enjoy both worlds. All the while, both governments should be pounded and their palaces and  offices bombed, until they announced their choices and made evident the kind of  responsibility they are ready to take up, as is the wont in the civilized world.

And after the war, which must end decisively and swiftly, no return to the international borders is to be envisaged until the Hamas and Hizbullah are dismantled and disarmed, their popular and political infrastructure destroyed and their suppliers and supporters sanctioned and punished by the powers. No UN forces can be trusted, when the Secretary General wants an "immediate cease fire" that would sanctify the Hizbullah gains , strengthen its prestige and encourage its further action under the watchful eye of the corrupt  UNIFIL which squanders international money for zero peace-keeping. He had long years to demand the implementation of Security Council Resolution 1559, which  had  mandated the  dismantling of HIzbullah and the deployment of the Lebanese army in the south, but he did nothing, and now he wishes to strengthen the hands of the terrorist organization that should have been banished in the first place. Only iron-clad arrangements that can be policed jointly with Israel would justify the resettlement of the south and the gradual retreat of Israelis, after evidence is clear that Lebanon would no longer become a terror country.

 

Raphael Israeli

Copyright - Original materials copyright (c) by the authors.

 

 

International Law and Gaza: The Assault on Israel's Right to Self-Defense. Part I

 

By Abraham Bell

1^st part of 2

International law authorizes Israel to initiate military countermeasures in Gaza. If Gaza is properly seen as having independent sovereignty, Israel's use of force is permissible on the grounds of self-defense. If Gaza is properly seen as lacking any independent sovereignty, Israel's use of military force is permissible as in other non-international conflicts.

       The rule of "distinction" includes elements of intent and expected result: so long as one aims at legitimate targets, the rule of distinction permits the attack, even if there will be collateral damage to civilians. The rule of "proportionality" also relies upon intent. If Israel plans a strike without expecting excessive collateral damage, the rule of proportionality permits it. Israeli attacks to date have abided by the rules of distinction and proportionality.

       Israel's imposition of economic sanctions on the Gaza Strip is a perfectly legal means of responding to Palestinian attacks. Since Israel is under no legal obligation to engage in trade of fuel or anything else with Gaza, or to maintain open borders, it may withhold commercial items and seal its borders at its discretion.

       The bar on collective punishment forbids the imposition of criminal-type penalties to individuals or groups on the basis of another's guilt. None of Israel's actions involve the imposition of criminal-type penalties.

       There is no legal basis for maintaining that Gaza is occupied territory. The Fourth Geneva Convention refers to territory as occupied where the territory is of a state party to the convention and the occupier "exercises the functions of government" in the territory. Gaza is not territory of another state party to the convention and Israel does not exercise the functions of government in the territory.

       The fighting in Gaza has been characterized by the extensive commission of war crimes, acts of terrorism and acts of genocide by Palestinians, while Israeli countermeasures have conformed with the requirements of international law. International law requires states to take measures to bring Palestinian war criminals and terrorists to justice, to prevent and punish Palestinian genocidal efforts, and to block the funding of Palestinian terrorist groups and those complicit with them.

Since Israel's withdrawal from the Gaza Strip in August 2005, Palestinian groups including Hamas, Fatah, Palestinian Islamic Jihad, the Popular Democratic Front for the Liberation of Palestine, and the Popular Resistance Committees have launched thousands of rocket attacks at Israel. All the attacks have been on civilian targets, with no more than a handful of possible exceptions. The brunt of the Palestinian assault has been borne by the town of Sderot. The attacks have killed several residents and injured dozens, struck houses and public buildings like kindergartens, and so traumatized residents that three-quarters of all Sderot children between the ages of 7 and 12 suffer from post-traumatic anxiety.

 
Faulty Arguments Made by Opponents of Israel

Unsurprisingly, in the wake of Israeli countermeasures, persistent critics of Israel have strongly objected to Israel's defensive actions to date, while remaining mostly mute on the crime under international law committed daily by the Gazan militias' attacks on Israeli civilians. As will be explained below, it is evident that the criticisms are without legal basis. Israeli responses to the Palestinian terror attacks emanating from Gaza correspond to the requirements of international law, and the claims that Israel has violated international law are without merit.

One widely reported criticism came from John Dugard, a professor of international law who has accepted a permanent appointment as special rapporteur on human rights in the "occupied Palestinian territories" from the discredited UN Commission on Human Rights and its successor UN Human Rights Council. Dugard has publicly and repeatedly interpreted his mandate as requiring him to criticize only Israel and on January 18, 2008, true to form, Dugard criticized Israeli defense measures for alleged illegality in the high-profile Sunday New York Times (Jan. 20, 2008).

First, Dugard claimed that Israel's attack on Hamas headquarters in a Palestinian Interior Ministry building in Gaza was illegal because the target was "near a wedding venue with what must have been foreseen loss of life and injury to many civilians." However, contrary to Dugard's insinuation, the building was certainly a legitimate target under the international humanitarian legal rule of distinction as it makes a definite contribution to Hamas' hostilities. That one Palestinian civilian lost her life in the Israeli strike is unfortunate, but not a violation of the rule of proportionality, which authorizes collateral damage to civilians where justified by military necessity.

Second, Dugard asserted that Israel's closure of its borders with the Gaza Strip constitutes illegal "collective punishment." Yet there is nothing in international law that requires Israel to maintain open borders with such a hostile territory, whatever its sovereign status. Exercising legal counter-measures against a hostile entity does not constitute "collective punishment" under international law. Dugard's refusal to level the same charge against Egypt, which also kept closed its border with the Gaza Strip, underlines the bias that accompanies the legally inaccurate statement.

Dugard was not alone. UN High Commissioner for Human Rights Louise Arbour denounced Israel's "disproportionate use of force." UN Undersecretary-General for Political Affairs Lynn Pascoe told the UN Security Council that collective penalties were prohibited under international law (Financial Times, Jan. 22, 2008). UNRWA Commissioner General Karen Koning Abu Zayd joined the chorus by criticizing Israel's "sporadic" electricity supply to Gaza and its border closures and called on the international community to act (Guardian, Jan. 23, 2008). Unfortunately, these skewed assertions and misstatements of international law by UN officials framed how international public opinion views the illegal Palestinian actions in Gaza and the merits of Israeli defensive actions, and especially Israel's legal right to defend itself.

Some parties had the courage to reject the one-sided and faulty arguments. In the UN Human Rights Council in Geneva, Canada, a state that prides itself in making the defense of human rights and international law a significant factor in its foreign policy, voted against a resolution condemning Israel for the Gaza fighting. While the European state members abstained in the Human Rights Council vote, some European officials, such as Frano Frattini, European Commissioner for Justice, Freedom and Security, correctly defended the legality of the Israeli actions, and others, such as Dutch Foreign Minister Maxime Verhagen, criticized UN bias against Israel. Finally, U.S. Ambassador to the UN Zalmay Khalilzad told the UN Security Council on January 22, 2008, that Hamas was "ultimately responsible" for the current situation in Gaza.

This essay nevertheless attempts to construct a rational legal basis for evaluating Israeli behavior and potential criticisms. This is no easy task as many of the criticisms of Israel's conduct are made in conclusory fashion, without reference to legal doctrines or legal materials in support of the charges, or, alternatively, based on a misunderstanding of the requirements of the law and the factual context.

This essay examines, in turn, the six distinct bodies of law that could potentially affect the legality of Israeli counterstrikes:

       the laws of initiating hostilities (jus ad bellum);

       international humanitarian law, which governs the conduct of military actions;

       the laws of occupied territory, which some have argued applies to Israeli actions against Gaza-based terrorists;

       human rights laws;

       laws on genocide; and

       anti-terror laws.

A careful examination of the relevant law demonstrates that Israeli counterstrikes to date, and its potential future counterstrikes (both economic and military), conform to the requirements of international law. Moreover, Palestinian commission of war crimes and acts considered under international conventions to be terrorist acts and acts of genocide require Israel and other countries to take steps to punish Palestinian criminals for their acts in the Gaza fighting.

A final preliminary note is in order. The legal status of the Gaza Strip is an extremely complex puzzle in international law and is beyond the scope of this essay. Fortunately, it turns out that many of the legal conclusions regarding the Gaza fighting are not affected by the precise nature of Gaza's status. The essay notes those instances where Gaza's status does affect the ultimate legal determination.

1. The Legality of Israeli Military Actions under Jus ad Bellum

The law of jus ad bellum, as codified by the UN Charter, prevents using military force against another state. However, Article 51 of the Charter excludes self-defense from this ban on the use of force. Furthermore, jus ad bellum does not restrict the use of force in non-international conflicts.

Israel's right to use force in defending itself against Palestinian attacks from Gaza is clear, notwithstanding the uncertain legal status of the Gaza Strip, which makes it difficult to determine the grounds on which Israel's actions should be analyzed. If Gaza should be seen as having independent sovereignty, Israel's use of force is permissible on the grounds of self-defense. On the other hand, if Gaza is properly seen as lacking any independent sovereignty, Israel's use of military force is permissible as in other non-international conflicts.


2. The Legality of Israeli Military Actions under International Humanitarian Law

International humanitarian law regulates the use of force once military action is underway, irrespective of its legality under jus ad bellum. The two most basic principles of international humanitarian law are the rules of distinction and proportionality. Israel's counterstrikes have abided by both these rules.

Distinction:

The rule of distinction requires aiming attacks only at legitimate (e.g., military and support) targets. The rule of distinction includes elements of intent and expected result: so long as one aims at legitimate targets, the rule of distinction permits the attack, even if there will be collateral damage to civilians and even if, in retrospect, the attack was a mistake based on faulty intelligence. Israel has aimed its strikes at the locations from which rockets have been fired, Palestinian combatants bearing weapons and transporting arms, Palestinian terrorist commanders, and support and command and control centers. Locations such as Interior Ministry buildings from which Hamas directs some military activities are objects that make a contribution to Hamas' military actions and are therefore legitimate targets, even though they also have civilian functions.

By contrast, the Palestinian attacks are aimed at Israeli civilians and therefore violate the rule of distinction. Moreover, one of the corollaries of the rule of distinction is a ban on the use of weapons that are incapable, under the circumstances, of being properly aimed at legitimate targets. The rockets and projectile weapons being used by the Palestinian attackers are primitive weapons that cannot be aimed at specific targets, and must be launched at the center of urban areas. This means that the very use of the weapons under current circumstances violates international humanitarian law.

Proportionality:

The rule of proportionality places limits on collateral damage. While collateral damage to civilian and other protected targets is permitted, collateral damage is forbidden if it is expected to be excessive in relation to the military need. Prosecutions for war crimes on the basis of disproportionate collateral damage are rare, and it is difficult to see how a credible claim can be made that any of Israel's counterstrikes have created disproportionate collateral damage. Moreover, like distinction, the rule of proportionality relies upon intent. If Israel plans a strike without expecting excessive collateral damage, the rule of proportionality permits it, even if, in retrospect, Israel turns out to have erred in its damage estimates.

All reported Israeli strikes in the latest round of fighting have been aimed at legitimate targets and none has caused excessive collateral damage. Legal advisors attached to Israeli military units review proposed military actions and apply an extremely restrictive standard of both distinction and proportionality, in accordance with expansive Israeli Supreme Court rulings. It is thus likely that future Israeli measures will continue to abide by the rules of distinction and proportionality.

Copyright - Original materials copyright (c) by the authors.

 

International Law and Gaza: The Assault on Israel's Right to Self-Defense. Part II

 

By Abraham Bell

2^nd part of 2

Retorsion:

Israel's imposition of economic sanctions on the Gaza Strip, such as withholding fuel supplies and electricity, does not involve the use of military force and is therefore a perfectly legal means of responding to Palestinian attacks, despite the effects on Palestinian citizens. The use of economic and other non-military sanctions as a means of "punishing" other international actors for their misbehavior is a practice known as "retorsion." It is generally acknowledged that every country may engage in retorsion so long as the underlying acts are themselves legal. Indeed, it is acknowledged that states may even go beyond retorsion to carry out non-belligerent reprisals-non-military acts that would otherwise be illegal (such as suspending flight agreements) as countermeasures. Since Israel is under no legal obligation to engage in trade of fuel or anything else with the Gaza Strip, or to maintain open borders with the Gaza Strip, it may withhold commercial items and seal its borders at its discretion, even if intended as "punishment" for Palestinian terrorism.

Collective Punishment:

While international law bars "collective punishment," none of Israel's combat actions and retorsions may be considered collective punishment. The bar on collective punishment forbids the imposition of criminal-type penalties to individuals or groups on the basis of another's guilt. None of Israel's actions involve the imposition of criminal-type penalties.

Examples of retorsions are legion in international affairs. The United States, for example, froze trade with Iran after the 1979 Revolution and with Uganda in 1978 after accusations of genocide. In 2000, fourteen European states suspended various diplomatic relations with Austria in protest of the participation of Jorg Haider in the government. Numerous states suspended trade and diplomatic relations with South Africa as punishment for apartheid practices. Obviously, in none of these cases was a charge raised of "collective punishment."

3. The Legality of Israeli Military Actions under the Laws of Occupation

Some groups have claimed that the Gaza Strip should be considered "occupied" by Israel according to the Fourth Geneva Convention, in which case Israel would be required to "ensure the food and medical supplies of the population," as well as "agree to relief schemes on behalf of the...population" and maintain "public health and hygiene."

Due to internal political considerations as well as rulings by the Israeli Supreme Court, Israel continues to maintain the flow of basic humanitarian supplies such as food, medicine and water to the Palestinian population of Gaza. In a recent case (Albassiouni v. Prime Minister, HCJ 9132/07), the Israeli Supreme Court implied that it interpreted domestic Israeli administrative law to require the Israeli government to maintain a minimum flow of Israeli-supplied necessary humanitarian goods when engaging in retorsional acts such as the cutting off of Israeli supply of electricity to Gaza. Thus, even if there were a legal basis for considering Gaza Israeli-occupied territory, Israel would be fulfilling its duties under the Fourth Geneva Convention.

However, there is no legal basis for maintaining that Gaza is occupied territory. The Fourth Geneva Convention refers to territory as occupied where the territory is of another "High Contracting Party" (i.e., a state party to the convention) and the occupier "exercises the functions of government" in the occupied territory. The Gaza Strip is not territory of another state party to the convention and Israel does not exercise the functions of government-or, indeed, any significant functions-in the territory. It is clear to all that the elected Hamas government is the de facto sovereign of the Gaza Strip and does not take direction from Israel, or from any other state.

Some have argued that states can be considered occupiers even of areas where they do not declare themselves in control so long as the putative occupiers have effective control. For instance, in 2005, the International Court of Justice opined that Uganda could be considered the occupier of Congolese territory over which it had "substituted [its] own authority for that of the Congolese Government" even in the absence of a formal military administration. Some have argued that this shows that occupation may occur even in the absence of a full-scale military presence and claimed that this renders Israel an occupier under the Fourth Geneva Convention. However, these claims are clearly without merit. First, Israel does not otherwise fulfill the conditions of being an occupier; in particular, Israel does not exercise the functions of government in Gaza, and it has not substituted its authority for the de facto Hamas government. Second, Israel cannot project effective control in Gaza. Indeed, Israelis and Palestinians well know that projecting such control would require an extensive military operation amounting to the armed conquest of Gaza. Military superiority over a neighbor, and the ability to conquer a neighbor in an extensive military operation, does not itself constitute occupation. If it did, the United States would have to be considered the occupier of Mexico, Egypt the occupier of Libya and Gaza, and China the occupier of North Korea.

Moreover, it is difficult to avoid the conclusion that foes of Israel claiming that Israel has legal duties as the "occupier" of Gaza are insincere in their legal analysis. If Israel were indeed properly considered an occupier, under Article 43 of the regulations attached to the Fourth Hague Convention of 1907, it would be required to take "all the measures in [its] power to restore, and ensure, as far as possible, public order and safety." Thus, those who contend that Israel is in legal occupation of Gaza must also support and even demand Israeli military operations in order to disarm Palestinian terror groups and militias. Additionally, claims of occupation necessarily rely upon a belief that the occupying power is not the true sovereign of the occupied territory. For that reason, those who claim that Israel occupies Gaza must believe that the border between Israel and Gaza is an international border between separate sovereignties. Yet, many of those claiming that Gaza is occupied, like John Dugard, also simultaneously and inconsistently claim that Israel is legally obliged to open the borders between Israel and Gaza. No state is required to leave its international borders open.

4. The Legality of Israeli Military Actions under International Human Rights Law

Under the International Covenant on Civil and Political Rights, Israel is required to ensure the protection of certain rights "within its territory" including the right to life. The application of the covenant to Israeli activities in the Gaza Strip is questionable as it is unlikely that the Gaza Strip should be considered Israel's territory. Nonetheless, Israel has abided by the requirements of the convention, if it applies to Gaza. In combat situations the meaning of the rights in the convention is established by the rules of international humanitarian law. Thus, Israel is protecting the human rights of Palestinian residents of the Gaza Strip by abiding by international humanitarian law.

5. Duties of Israel under the Genocide Convention

Article Two of the Convention on the Prevention and Punishment of Genocide defines any killing with intent "to destroy, in whole or in part, a national, ethnical, racial or religious group, as such" as an act of genocide. Given _expressions of intent by some of the Palestinian terrorist groups to kill Jews as a group due to their ethnic identity (such as the Hamas charter's call for an armed struggle against all Jews until judgment day), all the members of such groups who carry out killings are guilty of the crime of genocide under the convention. Under Article One of the convention, Israel and other signatories are required to "prevent and punish" not only persons who carry out such genocidal acts, but those who conspire with them, incite them to kil,l and are complicit with their actions. The convention thus requires Israel to prevent and punish the terrorists themselves, as well as public figures who have publicly supported the Palestinian attacks.

6. Duties of Israel under Anti-Terrorism Conventions

The International Convention for the Suppression of the Financing of Terrorism requires Israel (like other state parties to the convention) to prevent the collection of funds intended to support terrorist attacks. The Palestinian attacks fall under the definition of terrorist attacks under Article 2(1)(b) of the convention because they are aimed at Israeli civilians in violation of the rule of distinction, and they are intended to kill or seriously injure civilians in order to intimidate a population. If Gaza is considered "territory of [the] state" of Israel, Israel is legally required to establish jurisdiction over Palestinian terrorist crimes under the convention; if Gaza is not Israeli territory, Israel is permitted to establish jurisdiction over the terrorist crimes.

Additionally, the convention establishes that Israel is not only permitted to impose certain economic sanctions on the de facto rulers of the Gaza Strip, it is required to do so.

Under a related convention, the International Convention for the Suppression of Terrorist Bombings, it is a crime to bomb public places (such as city streets) with the intent to kill civilians, by persons who are non-nationals of the state of which the victims are nationals. Under this convention too, the Palestinian attackers must be considered international terrorists and Israel is either required or permitted (depending on whether Gaza is Israeli "territory") to assume criminal jurisdiction over the Palestinian terrorists committing these acts. Additionally, other states signed on the convention-such as the United States, Russia, Turkey and France-must cooperate in helping to combat such Palestinian terrorist acts.

Finally, Security Council Resolution 1373 requires states to "deny safe haven to those who finance, plan, support, or commit terrorist acts, or provide safe havens" and "prevent the movement of terrorists or terrorist groups." The resolution was adopted under Chapter VII and is therefore apparently binding on all states, although some have argued that the resolution is not binding because the Security Council is not authorized to enact quasi-legislation. While the resolution does not define terrorism, it references the International Convention for the Suppression of the Financing of Terrorism, making it clear that the Palestinian attackers from Gaza fall within the scope of the international terrorists covered by the resolution. Consequently, if binding, this resolution requires Israel to take steps to deny safe haven to Palestinian attackers from Gaza and to prevent their free movement. 

Conclusion

The Palestinian-Israeli fighting in Gaza has been characterized by the extensive commission of war crimes, acts of terrorism and acts of genocide by Palestinian fighters, while Israeli countermeasures have conformed with the requirements of international law.

International law requires states to take measures to bring Palestinian war criminals and terrorists to justice, to prevent and punish Palestinian genocidal efforts, and to block the funding of Palestinian terrorist groups and those complicit with them.

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.

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Stop Them with a Clear-Cut Victory Part I

I

by Moshe Sharon

1^st part of 5

"We shall fight on the seas and oceans we shall fight with growing confidence… we shall fight in the fields and in the streets…we shall fight in the hills…we shall never surrender."

Winston Churchill 4 June 1940

 

The failure in Lebanon

The year is 2007; it is the beginning of September. I am writing this for readers in the future so that they will be aware of period in which this document was composed.

This time one year ago, the northern half of the tiny state of Israel was under constant attack of missiles that fell not only on villages, and on towns, conveniently called "the periphery" on such occasions, but also on Haifa, the major port of Israel, the centre of its heavy industry, oil refineries, and vital chemical plants. Any normal country would have retaliated by laying waste the territory from which such indiscriminate attacks were aimed at civilians and civilian installations. Any normal country would have declared war immediately on the country from which these attacks came and would have given orders to its army to conquer that country or at least those parts of it that were used as bases for the missile attacks.

The government of Israel did not declare war. Paralyzed by fear of the word "occupation" it announced that it would not conquer the enemy's territory, and prevented the army from responding by attacking civilian settlements even when the Hizbullah used Lebanese civilians as human shields, and turned schools, mosques and hospitals into missile launching sites. Moreover, the government did not understand the importance for Israel of achieving a clear-cut, indisputable major victory in this war; it failed to perceive the unusual harm Israel would suffer in the long run, if the Hizbullah could claim victory as it actually did. It failed to understand that without conquering the territory used for the launching of the missiles and by not retaliating against vital civilian as well as military installations first in Syria and then in Lebanon, the war could not be won.

Extraordinarily grave damage was done. The enemies of Israel, comprising all of the Arab countries in the Middle East (including Egypt and Jordan) as well as the rest of the Islamic world, are now convinced that Israel is a temporary entity that can be defeated and destroyed, and that its Jewish population can be exterminated. This notion has already infiltrated the minds and convictions of many in the West, particularly those who belong to the Left, who believe that the establishment of the State of Israel was a mistake, both moral and political, and one way or another must be eliminated.

Peace in the Middle East – no such option

The Western world, in particular the United States and Israel, have not yet come to grips with the gravity of the global conflict, which is developing rapidly on a daily basis. This is a war that fanatic Islam, which now engulfs the whole Islamic world, has declared on the West. The eradication of Israel by force from what is regarded to be the heart of the Islamic world is regarded to be a much needed major triumph and a necessary step for the successful march to victory in the rest of the world. The naming of Israel as the "Small Satan" represents this idea: once the small abomination is eliminated, the big one will also be destructible.

The failure of Israel and the United States, as well as Europe, to see that the world is in a state of war is characterised by the seasonal birth of "peace initiatives." That Israel has convinced itself that "peace is an option," even "the only option," in spite of the fact that its enemies are actively engaged in preparing its destruction, is one of the astonishing phenomena of our times. The Arabs read the signs coming from Israel correctly, and act accordingly. On the one hand, they are arming themselves to the teeth and preparing for war and, on the other hand, they talk "peace" and occasionally release "peace plans," which aim at turning Israel into an indefensible narrow strip of land that can be conquered in a single attack.

Successive governments of Israel, and the Saudi-influenced American State Department, backed by deluded, uninformed and defeatist media, have convinced themselves and the public over the years that once the Arabs sign an agreement, whether it is called a "peace treaty" or any other "accord," they are bound to honour it. Meanwhile, they have always demanded that Israel pay for such pieces of paper with territory vital for its security. Time and again, the Arabs have proved that they will keep the parts of any agreement as long as it suits them, and for the length of time it suits them.

After the signing of the peace agreement between Israel and Egypt, it is said that the late President, Sadat remarked "Poor Menahem (Begin), I gave him a piece of paper, and he gave me the whole of Sinai." How right the Egyptian president was! Of the "peace treaty" with Egypt not much more has remained than a "piece of paper" representing an extended armistice, much like the one which existed between 1956-67, 1968-1973, and 1973-1979.

Egypt leads the world in the publication and dissemination of anti-Semitism, and this is only one of the clear violations of the peace treaty with Israel. Even Jordan, whose sheer existence is dependent on Israel's protection, is not observing all the clauses of the more recent peace treaty that it signed, and its media spreads anti-Israeli venom.

Moshe Sharon

Professor Emeritus of Islamic History and Civilization.

 

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Stop Them with a Clear-Cut Victory Part II

by Moshe Sharon

2nd part of 5

Peace plans and refugees– tools in the war against Israel

All the Arab countries, led by the Arab League, Saudi Arabia and Egypt, support and arm terrorists that are fighting Israel. At the same time they are very busy in all the international bodies and media seeking to harm Israel by isolating it worldwide, and singling it out as a pariah nation, blackening its name in every possible way. Concurrently, they also publicize their seasonal "peace plans," all of which are but weapons in their war against Israel. These "peace plans" always contain three components: the withdrawal of Israel to the pre-1967 armistice lines, the establishment of a Palestinian state with Jerusalem its capital and "the return of the Arab refugees" into the diminished state of Israel. The aim of such plans is clear: to create the strategic conditions that render Israel defenseless, and to destroy it from within by flooding it with the Arab "refugees."

Who are these "refugees?" How is it that they have been on the world's agenda for the past 60 years? To understand this, the most astounding abnormality of modern times, it should be emphasized that the term "refugees" in the case of the Arab ones has been constantly used by the general media, by the international community, by the United Nations and by every individual country in the world both inaccurately and dishonestly. Every war creates refugees, but in all other cases, the term "refugee" describes a temporary condition. In the case of the "Arab refugees" ("Palestinian" is a rather new term) this temporary condition has been successfully turned into a permanent status bequeathed and inherited, transmitted from one generation to another. This is the only case in history wherein refugees breed refugees. The amazing thing is that the whole world has been actively cooperating with the Arabs in perpetuating this status. The United Nations has spent billions until now in creating and keeping the sophisticated machinery of UNRWA, formed not to solve the refugee problem but to keep it alive, knowing very well that by now hardly a few thousands of the original refugees from 1948 are still alive. The dishonesty of the international community cries out to heaven because it is clear that the Arabs are keeping this ever-multiplying, unique refugee problem for only one purpose – the destruction of the Jewish state. Nobody is interested in the over six hundred and fifty thousand Jewish refugees who were thrown out of the Arab countries following the establishment of the State of Israel, and were settled by Israel. These Jewish refugees have also multiplied, but as free and rehabilitated human beings. They and their descendents also number several million people. However, Israel, like any other civilized country, does not regard "refugee" to be an inherited status.

As I write these words on 1 August 2007, it has been announced that Saudi Arabia, reacting to President Bush's idea of convening a "Peace Conference," has said that the President's plan has "positive elements." When the Arabs say "positive elements," it means that these elements are in full accord with their own plans for the elimination of the Jewish state. The "positive elements" which the Saudi king found in the American suggestion were "the dismantling of the Jewish settlements in the West Bank and a solution to the refugee problem." In plain language, it means returning Israel to the indefensible borders of the pre-1967 ceasefire lines and precipitating the process of destroying its Jewish character.

Why the penny doesn't drop is a mystery. How is it that at least intelligent people in the West do not follow the policy of "benign neglect," and keep on falling into the trap of seasonal "peace plans?" How is they still do not comprehend that three generations of efforts to achieve peace through negotiations have only led to more violence and instability? How can they not see that cheating and deception are intrinsic components of Arab diplomacy and are cemented into every agreement they sign, even among themselves.

The Arab ideas aimed at the elimination of Israel, which have remained unchanged since its establishment in 1948, are now shared by the Arab citizens of Israel who openly define the establishment of the State, whose prosperity and security, freedom and democracy they enjoy, – "nakbah" – "catastrophe." Their representatives in the Knesset, who swear allegiance to "the State and its laws" as well as the media that speaks for them, demand the elimination of the Jewish character of Israel, and the abolishment of the "Law of Return" which guaranties that the State of Israel is the Jewish Home. They also demand that all its Jewish symbols (flag, emblems, national anthem) should be eliminated, and that it should become "the State of all its citizens," - in other words, it should be prepared to turn into an Arab state.

Although this analysis relates only to the Israeli-Arab conflict, it is described by most of the world media as influencing the well-being of the entire world. The Europeans and, to a large extant, the majority of the American political leaders and media, have fallen victim to years of Arab-Leftist-anti-Jewish-anti-Zionist propaganda and they are convinced that, by accepting the Arab demands and establishing another Arab state on the tiny territory of Palestine, all the conflicts in the world, or at least most of them, will come to an end. There is no need to explain, yet again, the fallacy of these ideas.

The validity of the Islamic factor

There is no way that the Arabs in particular, and the Muslims in general, can or will accept the permanent existence of a Jewish, that is to say a non-Arab, non-Muslim state, in the heart of what is regarded to be an Arab-Islamic homeland. There is no Muslim leader who would dare to relinquish any portion of the Holy Land, small as it might be, in order to allow the "Jewish infidels" to establish their legitimately, independent presence on it. Palestine, as far as the Muslims are concerned, contains only Muslim holy places and is regarded to be a Muslim, religious endowment. In their eyes, it is exclusively Islamic, and the claim of any non-Muslim to any part of it on historical or religious grounds is false. It belongs to all the Muslims and any Muslim who dares to give up any of the Muslim rights to it should know that he signs his own death warrant.

No Muslim leader would venture to accept officially, even for a limited period, the equality of the Jews to the Muslims by recognizing the legitimacy of their independence and sovereignty. Moreover, any agreement with the Jews, which contains anything beyond a limited armistice or ceasefire, is by its very nature null and void. The only agreement with non-believers that is permitted by Islamic law is one that enables Islam to strengthen itself, so that when the time comes it can resume the war of Jihad in better conditions and from better positions. Such a ceasefire or armistice is based on the postulation that the infidel enemy will surely mistake it for peace, lower its defenses and slide into a slumber of tranquility, thus turning itself into an easy target. In Arabic armistice is called hudnah but it can be rendered by the word sulh, which is the term used by the Muslims to describe a treaty concluded with a defeated enemy. In European languages and in Hebrew the last term is mistakenly translated as "peace." This translation suits the Muslim Jihadi plans very well: the infidels rejoice in the "peace" and Islam can meanwhile gather its forces for the "next round."

If in the past one was told that these laws of Jihad were theoretical and inapplicable to our modern times, along came the Islamic terrorist activity of the past generation all over the world, and proved that they are certainly valid, and form the basis of the relations between the Muslim world and the West.

The Islamic factor, therefore, is an axiom in world affairs. It should be regarded as a vital component in the assessment of any activity, whether political or military, in the Middle East as well as in the world at large.

Moshe Sharon

Professor Emeritus of Islamic History and Civilization.

 

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