Terror Tunnels The Case for Israel's Just War Against Hamas (5 page)

The charges against these two distinguished public officials are that they committed war crimes against Palestinian terrorists and civilians. Yaalon was accused in connection with the 2002 targeted killing of Salah Shehadeh, a notorious terrorist who was responsible for the deaths of hundreds of Israeli civilians and was planning the murders of hundreds more. As a result of faulty intelligence, the rocket that killed Shehadeh also killed several civilians who were nearby, including members of his family. Barak is being accused of war crimes in connection with Israel’s recent military effort to stop rockets from being fired at its civilians from the Gaza Strip.

The British government and British prosecutors have not supported the arrests of Barak and Yaalon. Those demanding the arrest of these Israelis are hard-left political activists who are seeking to invoke so-called “universal jurisdiction” against those whom they consider guilty of war crimes and genocide. They have absolutely zero interest in human rights, in the laws of war, or in preventing genocide. Indeed, many of them supported the Cambodian genocide and have refused to condemn the Rwanda and Darfur genocides. They would never dream of demanding the arrest of Hamas murderers who target Israeli schoolchildren for suicide bombings or rocket attacks. They are willfully misusing these concepts—human rights, universal jurisdiction—to serve their anti-Israel and anti-Western ideology. What they are doing undercuts the neutrality and value of these protections.

If they were at all interested in human rights, they would be going after the worst first—those who murder innocent civilians as part of a campaign of ethnic cleansing or genocide. But they are interested in Israel and Israel alone. That’s why they demand boycotts and divestment only from the Jewish state and not from real human rights violators. Indeed, most of them would fervently reject sanctions against Iran, North Korea, Libya, Venezuela, China, Zimbabwe, Syria, or Saudi Arabia.

It is disgraceful that Israeli leaders cannot walk the streets of London safely, while Hamas and Hezbollah leaders are honored and celebrated. The time has come for Israel to confront this issue directly and to take legal action to prevent radical Israel-haters from misusing decent laws to achieve indecent results. Just imagine what a trial would look like if it were conducted fairly and objectively. The Israelis would be able to prove that their campaign of targeted assassinations of terrorists has worked effectively to reduce terrorism against Israeli citizens and others. Israel has inadvertently killed some civilians but thanks in particular to the hard work of Air Force chief Elizer Shkedi, the ratio of civilians to combatants killed has improved dramatically from a “1:1 ratio between killed terrorists and civilians in 2003 to a 1:28 ratio in late 2005.”
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Indeed, the current ratio is at its lowest ever at more than 1:30.

This is the best ratio of any country in the world that is fighting asymmetrical warfare against terrorists who hide behind civilians. It is far better than the ratio achieved by Great Britain and the United States in Iraq or Afghanistan, where both nations employ targeted killings of terrorist leaders. Recall that it was Great Britain that implemented a policy during the Second World War of targeting civilians in cities such as Dresden and that it was the United States that implemented the same policy in its firebombing of Tokyo. Indeed, it is fair to say that no country in modern history has ever been more protective of enemy civilians than Israel has been during its seventy-five-year fight against terrorism.

As British military expert Colonel Richard Kemp put it during Operation Cast Lead:

[f]rom my knowledge of the IDF and from the extent to which I have been following the current operation, I don’t think there has ever been a time in the history of warfare when any army has made more efforts to reduce civilian casualties and deaths of innocent people than the IDF is doing today in Gaza.

…Hamas, the enemy they have been fighting, has been trained extensively by Iran and by Hezbollah, to fight among the people, to use the civilian population in Gaza as a human shield… Hamas factor in the uses of the population as a major part of their defensive plan. So even though as I say, Israel, the IDF, has taken enormous steps… to reduce civilian casualties, it is impossible, it is impossible to stop that happening when the enemy has been using civilians as human shields.

Recall that before Israel went into the Gaza Strip, nearly ten thousand rockets had been fired at its civilians from behind human shields. No nation is obliged, under international law, to accept the risks of catastrophic outcomes from these antipersonnel rockets.

So let there be a legal proceeding—a fair one in an objective forum—in which Israel’s policies are tested against those of other countries. The end result would be that Ehud Barak and Moshe Yaalon will be able to hold their heads up high and walk through the streets of any Western city in the full knowledge that what they have done meets and indeed exceeds every standard of international law applicable to their conduct.

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If Israel Killed Mahmoud al-Mabhouh, Did It Have the Right To?

February 18, 2010

I don’t know whether Israel did or did not assassinate the leader of the Hamas military wing, Mahmoud al-Mabhouh. But assuming for argument’s sake that the Mossad made the hit, did it have the right to engage in this “extrajudicial assassination?”

Not all extrajudicial killings are unlawful. Every soldier who kills an enemy combatant engages in an extrajudicial killing, as does every policeman who shoots a fleeing felon. There are several complex legal questions involved in assessing these situations.

First, was the person who was killed a combatant in relation to those who killed him? If Israel killed Mabhouh, there can be absolutely no doubt that he was a combatant. He was actively participating in an ongoing war by Hamas against Israeli civilians. Indeed, it is likely that he was killed while on a military mission to Iran in order to secure unlawful antipersonnel rockets that target Israeli civilians. Both the United States and Great Britain routinely killed such combatants during the Second World War, whether they were in uniform or not. Moreover, Hamas combatants deliberately remove their uniforms while engaged in combat.

So if the Israeli Air Force had killed Mabhouh while he was in Gaza, there would be absolutely no doubt that their action would be lawful. It does not violate international law to kill a combatant, regardless of where the combatant is found, whether he is awake or asleep and whether or not he is engaged in active combat at the moment of his demise.

But Mabhouh was not killed in Gaza. He was killed in Dubai. It is against the law of Dubai for an Israeli agent to kill a combatant against Israel while he is in Dubai. So the people who engaged in the killing presumptively violated the domestic law of Dubai, unless there is a defense to such a killing based on international principles regarding enemy combatants. It is unlikely that any defense would be available to an Israeli or someone working on behalf of Israel, since Dubai does not recognize Israel’s right to kill enemy combatants on its territory.

If it could be proved that Israel was responsible for the hit—an extremely unlikely situation—then only Dubai could lawfully bring Israelis to trial. They would not be properly subjected to prosecution before an international tribunal. But what if a suspect was arrested in England, the United States, or some other Western country and Dubai sought his extradition? That would pose an interesting legal, diplomatic, political, and moral dilemma. Traditional extradition treaties do not explicitly cover situations of this kind. This was not an ordinary murder. It was carried out as a matter of state policy as part of an ongoing war. A Western democracy would certainly have the right and the power to refuse to extradite. But they might decide, for political or diplomatic reasons, to turn the person over to Dubai.

Turning now to the moral considerations that might influence a decision whether to extradite, the situation is even murkier. The
Goldstone Report
suggests that Israel cannot lawfully fight Hamas rockets by wholesale air attacks. Richard Goldstone, in his interviews, has suggested that Israel should protect itself from these unlawful attacks by more proportionate retail measures, such as commando raids and targeted killing of terrorists engaged in the firing of rockets. Well, there could be no better example of a proportionate, retail, and focused attack on a combatant who was deeply involved in the rocket attacks on Israel, than the killing of Mahmoud al-Mabhouh. Not only was Mabhouh the commander in charge of Hamas’s unlawful military actions at the time of his death, he was also personally responsible for the kidnapping and cold-blooded murder of two Israeli soldiers several years earlier.

Obviously it would have been better if he could have been captured and subjected to judicial justice. But it was impossible to capture him, especially when he was in Dubai. If Israel was responsible for the killing, it had only two options: to let him go on his way and continue to endanger Israeli civilian lives by transferring unlawful antipersonnel weapons from Iran to Gaza, or to kill him. There was no third alternative. Given those two options, killing seems like the least tragic choice available.

I leave to others, more expert in these matters, whether if Israel ordered the killing, it was strategically the right thing, or whether they carried it off in an intelligent manner. But as to the legal and moral right to end the threat posed by this mass murderer, the least bad alternative would seem to be his extrajudicial killing.

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Israel’s Actions in Intercepting the Turkish Flotilla Were Entirely Lawful though Perhaps Unwise

June 1, 2010

During the evening of May 30, 2010, the Israeli navy intercepted the six ships of the self-anointed “Gaza Freedom Flotilla” organized by two allegedly charitable organizations, the Free Gaza Movement and the Turkish Foundation for Human Rights and Freedoms and Humanitarian Relief (IHH).
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The Israeli navy shadowed the fleet for several hours, repeatedly entreating the ships’ captains to sail for the port of Ashdod where their cargo could be inspected and then delivered by land to Gaza.

These offers were ignored, and during the early morning of May 31, Israeli naval commandos boarded the ships to commandeer them and steer them away from the Gazan coastline. Israeli forces were armed with paintball guns, stun grenades, and side arms which they were instructed to use only in the case of emergency. The passengers aboard five of the six ships offered no resistance and were apprehended peacefully by Israeli soldiers. However, a group of hardcore IHH members on board the Turkish ship MV
Mavi Marmara
attacked Israeli commandos. Nine activists were subsequently killed by Israeli forces as they attempted to gain control of the ship.

Although the wisdom of Israel’s actions in stopping the Gaza flotilla is open to question, the legality of its actions is not. What Israel did was entirely consistent with both international and domestic law. In order to understand why Israel acted within its rights, the complex events at sea must be deconstructed.

First, there is the Israeli blockade of Gaza, which included a naval blockade. Recall that when Israel ended its occupation of Gaza, it did not impose a blockade. Indeed it left behind agricultural facilities in the hope that the newly liberated Gaza Strip would become a peaceful and productive area. Instead Hamas seized control over Gaza and engaged in acts of warfare against Israel. These acts of warfare featured antipersonnel rockets, nearly ten thousand of them, directed at Israeli civilians. This was not only an act of warfare, it was a war crime. Israel responded to the rockets by declaring a blockade, the purpose of which was to assure that no rockets, or other material that could be used for making war against Israeli civilians, was permitted into Gaza. Israel allowed humanitarian aid through its checkpoints. Egypt as well participated in the blockade. There was never a humanitarian crisis in Gaza, merely a shortage of certain goods that would end if the rocket attacks ended.

The legality of blockades as a response to acts of war is not subject to serious doubt. When the United States blockaded Cuba during the missile crisis, the State Department issued an opinion declaring the blockade to be lawful. This, despite the fact that Cuba had not engaged in any act of belligerency against the United States. Other nations have similarly enforced naval blockades to assure their own security.

The second issue is whether it is lawful to enforce a legal blockade in international waters. Again, law and practice are clear. If there is no doubt that the offending ships have made a firm determination to break the blockade, then the blockade may be enforced
before
the offending ships cross the line into domestic waters. Again the United States and other Western countries have frequently boarded ships at high sea in order to assure their security.

Third, were those on board the flotilla innocent noncombatants or did they lose that status once they agreed to engage in the military act of breaking the blockade? Let there be no mistake about the purpose of this flotilla. It was decidedly
not
to provide humanitarian aid to the residents of Gaza, but rather to break the entirely lawful Israeli military blockade. The proof lies in the fact that both Israel and Egypt offered to have all the food, medicine, and other humanitarian goods sent to Gaza, if the boats agreed to land in an Israeli or Egyptian port. That humanitarian offer was soundly rejected by the leaders of the flotilla who publicly announced:

This mission is not about delivering humanitarian supplies, it’s about breaking Israel’s siege on 1.5 million Palestinians.
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