Friday, May 20, 2016

Israel, Gaza and "Proportionality" - Louis René Beres



by Louis René Beres


The obligations of proportionality require that no side employ any level of force that is greater than what is needed to achieve a legitimate political and operational objective.

  • It appears that several major Palestinian terror groups have begun to prepare for mega-terror attacks on Israel.
  • The authoritative rules of war do not equate "proportionality" with how many people die in each side of a conflict. In war, no side is ever required to respond to aggression with only the equivalent measure of force. Rather, the obligations of proportionality require that no side employ any level of force that is greater than what is needed to achieve a legitimate political and operational objective.
  • Under pertinent international law, the use of one's own people as "human shields" -- because such firing from populated areas is intended to deter Israeli reprisals, or to elicit injuries to Palestinian civilians -- represents a codified war crime. More specifically, this crime is known as "perfidy." This is plainly an attempt to make the IDF appear murderous when it is compelled to retaliate, but it is simply a Palestinian manipulation of legal responsibility. Under law, those Arab residents who suffer from Israeli retaliations are incurring the consequences of their own government's war crimes.
  • International law is not a suicide pact. Instead, it offers a universally binding body of rules and procedures that allows all states to act on behalf of their "inherent right of self-defense."

Already, calls from various directions have begun to condemn Israel for its recent retaliatory strikes in self-defense at Gaza.[1] The carefully-rehearsed refrain is all-too familiar. Gazan terrorists fire rockets and mortars at Israel; then, the world calls upon the Israel Air Force (IAF) not to respond.

Although Israel is plainly the victim in these ritualistic cycles of Arab terror and required Israeli retaliations, the "civilized world" usually comes to the defense of the victimizers. Inexplicably, in the European Union, and even sometimes with the current U.S. president, the Israeli response is reflexively, without thought, described as "excessive" or "disproportionate."

Leaving aside the irony of President Obama's evident sympathies here -- nothing that Israel has done in its own defense even comes close to the indiscriminacy of recent U.S. operations in Afghanistan[2] -- the condemnations are always unfounded. Plainly, Hamas and allied Arab terror groups deliberately fire their rockets from populated areas in Gaza at Israeli civilians. Under pertinent international law, this use of one's own people as "human shields" -- because such firing from populated areas is intended to deter Israeli reprisals, or to elicit injuries to Palestinian civilians -- represents a codified war crime. More specifically, this crime is known as "perfidy."

"Perfidy" is plainly an attempt to make the IDF appear murderous when it is compelled to retaliate, but it is always simply a Palestinian manipulation of true legal responsibility. Hamas's intent might be to incriminate the Israelis as murderers of Gaza's civilians. Legally, however, the net effect of Arab perfidy in Gaza is to free Israel of all responsibility for Arab harm, even if it is Israeli retaliatory fire that actually injures or kills the Gazan victims. Under law, those Arab residents who suffer from Israeli retaliations are incurring the consequences of their own government's war crimes. Palestinian suffering, which we are surely about to see again in stepped-up, choreographed Arab propaganda videos, remains the direct result of a relentlessly cruel, insensitive, and criminal Hamas leadership.

Significant, too, although never really mentioned, is that this Hamas leadership, similar to the PA and Fatah leadership, often sits safely away from Gaza, tucked away inconspicuously in Qatar. For these markedly unheroic figures, "martyrdom" is allegedly always welcomed and revered, but only as long as this singular honor is actually conferred upon someone else.

Moreover, the authoritative rules of war do not equate "proportionality" with how many people die in each side of a conflict. In war, no side is ever required to respond to aggression with only the equivalent measure of force. Rather, the obligations of proportionality require that no side employ any level of force that is greater than what is needed to achieve a legitimate political and operational objective.

If the rule of proportionality were genuinely about an equivalent number of dead, America's use of atomic weapons against Japanese civilians in August 1945 would represent the greatest single expression of "disproportionality" in human history.

It appears that several major Palestinian terror groups have begun to prepare for mega-terror attacks on Israel. Such attacks, possibly in cooperation with certain allied jihadist factions, could include chemical and biological weapons of mass destruction. Over time, especially if Iran, undeterred by the July 2015 Vienna Pact, should agree to transfer portions of its residual nuclear materials to terror groups, Israel could then have to face Palestinian-directed nuclear terrorism.

One message is clear. If Israel, pressured by outside forces, allows Palestinian terror from Gaza to continue unopposed, the state could become increasingly vulnerable to even greater forms of Arab aggression.

Also important to keep in mind is that nuclear terror assaults against Israel could be launched from trucks or ships, not only from rockets and missiles.

What about Israel's active defenses? In its most recent defensive operations, Protective Edge and Pillar of Defense, Israel accomplished an impressively high rate of "Iron Dome" interceptions against incoming rockets from Gaza. Still, it would be a mistake to extrapolate from any such relatively limited successes to the vastly more complex hazards of strategic danger from Iran. Should Iran "go nuclear" in ten years or sooner, that still recalcitrant Islamic regime could launch at Israel missiles armed with nuclear warheads.


In its most recent defensive operations, Israel accomplished an impressively high rate of "Iron Dome" interceptions against incoming rockets from Gaza. Still, it would be a mistake to extrapolate from any such relatively limited successes to the vastly more complex hazards of strategic danger from Iran. (Image source: IDF)

Sun Tzu, the ancient Chinese military thinker, already understood -- long before the nuclear age -- that too great a reliance on defense is always misconceived. Today, Arrow, Israel's core ballistic missile defense (BMD) interception system, would require a 100% rate success against offensive nuclear missiles. At the same time, such a rate is impossible to achieve, even if enhanced by Rafael's new laser-based defenses. Israel must therefore continue to rely primarily on deterrence for existential nuclear threats.

Although unacknowledged, Israel has always been willing to keep its essential counterterrorism operations in Gaza consistent with the established rules of humanitarian international law. Palestinian violence, however, has remained in persistent violation of all accepted rules of engagement -- even after Israel painfully "disengaged" from Gaza in 2005.

Both Hamas and the Palestinian Authority still speak indignantly of "the Occupation?" But where, precisely, is this "occupation?" After all their agitated umbrage about Israeli "disproportionality," shouldn't the Palestinians and their allies finally be able to answer that core question? There are no Israelis in Gaza.

International law is not a suicide pact. Instead, it offers a universally binding body of rules and procedures that allows all states to act on behalf of their "inherent right of self-defense."[3] When terrorists groups such as Hamas openly celebrate the "martyrdom" of Palestinian children, and when Hamas leaders unhesitatingly seek their own religious redemption through the mass-murder of Jewish children, unfortunately these terrorists retain no legal right to demand sanctuary.

In response to endless terror attacks from Gaza, Israel, with countless leaflets, phone calls, "knocks on the roof," and other warnings to its attackers, has been acting with an operational restraint unequaled by any other nation and according to binding rules of war. In these obligatory acts of self-defense there has not yet been the slightest evidence of disproportionality.
Louis René Beres is Emeritus Professor of International Law at Purdue University. His just-published new book is titled Surviving Amid Chaos: Israel's Nuclear Strategy.

[1] Speaking in Beirut on Channel 10 News, on May 7, 2016, Hezbollah leader Hassan Nasrallah accused Israel of "attacking Gaza," continuing: "Unfortunately, the Arab world is silent about the situation in Gaza. ... these actions must be condemned." Cited in Israel National News, "Nasrallah calls for condemnation of Israeli 'Attacks' on Gaza," May 7, 2016. Interesting, too, is that Nasrallah, a Shiite leader, is speaking here in strong support of Sunni Hamas.
[2] See Alissa J. Rubin, "Airstrike Hits Doctors Without Borders Hospital in Afghanistan," The New York Times, October 3, 2015. This is an account of the October 2015, U.S. destruction of a crowded hospital in the embattled city of Kunduz. The Pentagon confirmed the strike, which it called "collateral damage," and President Obama offered condolences to the victims in what he termed a "tragic incident." Doctors Without Borders was awarded the Nobel Peace Prize in 1999.
[3] See, especially, Article 51 of the United Nations Charter.


Louis René Beres is Emeritus Professor of International Law at Purdue University. His just-published new book is titled Surviving Amid Chaos: Israel's Nuclear Strategy.

Source: http://www.gatestoneinstitute.org/8014/israel-gaza-proportionality

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

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